Proper Use of the DMCA

For Webmasters and copyright holders unable to afford lawyers to protect them at every turn, the DMCA (PDF) provided something of a mixed blessing. While certain controversial elements of the law stripped away rights previously enjoyed, such as the right to circumvent copy protection schemes for fair use, it also provided a simple, standard way for a copyright holder to request the removal of infringing material from the Web.

In short, the DMCA replaced a hodgepodge of site rules, abuse teams and bizarre requirements by creating a single means to handle all copyright infringement issues hosted on U.S.-based servers.

However, while the DMCA removed a tremendous burden off of Webmasters trying to get their works removed, it also created a decent amount of confusion. The law itself and the requirements contained in it are not easily understood, even by lawyers, and many Webmasters have produced well-intended but misguided “how tos” that teach either incorrect techniques or only tell part of the story.

Unfortunately though, learning how to properly use the DMCA is not an option for Webmasters wanting to protect their content online. Learning how to use it effectively, ethically and prudently is the only way to stop uncooperative plagiarists, scrapers and other content thieves.

The good news, however, is that it is not nearly as difficult as many make it out to be. In fact, when you look at what the law says, it’s actually quite easy to do.

Section 512

The Notice and Takedown provision of the DMCA resides in Section 512 of Title 17 of U.S. law. It is entitled, quite appropriately, “Limitations on liability relating to material online” and is designed to limit the potential legal liability for Internet service providers (ISPs) that host or distribute copyrighted material unwittingly.

It first identifies four types of ISPs that have their liability limited under the law: Transitory services (such as routers), services that engage in caching, Web hosts and “Information location tools” such as directories and search engines.

For Webmasters fighting plagiarism and content theft, the latter two are the most useful. They enable us to get infringing material removed from the Web completely by contacting the host, if it is American, or to remove it from the search engines if it is not. All one has to do is prepare a properly-formatted DMCA notice (see link for a recap on writing a DMCA notice) and send it to the host’s designated agent (or abuse team if such an agent isn’t available).

In short, the theoretical steps for using the DMCA against an infringing site are as follow:

  1. Locate the Host – Using a site such as Domain Tools can help greatly with that if the site is hosted on its own domain.
  2. Determine Who the Agent Is – Visit the Copyright Office to see agents listed with them, check the host’s terms of service if they aren’t listed there and, if needed, file the report with their regular abuse team.
  3. Prepare your DMCA NoticeThis site has an excellent template that you can use.
  4. Email, Fax or Mail the Notice – Send your notice in and consider using both email and another means to ensure that it arrives and is accepted.

It is that simple, at least the vast majority of the time. If you are well-prepared, the entire process of sending a DMCA notice should take no more than a few moments.

Despite that, many people have difficulty filing DMCA notices and getting their content removed. Usually though, it’s because they take the wrong approach, forget a simple step or overlook a much-easier alternative.

Common Mistakes

Many people who now use the DMCA successfully, including myself, made mistakes when first trying to apply the law ourselves.  It’s easy to do and there are actually many pitfalls of trying to apply the law, especially if you aren’t a lawyer. However, most of the common mistakes can be easily avoided if one is aware of them.

Targeting Search Engines First: Though countless guides recommend this technique, targeting Google, Yahoo and the other search engines with DMCA notices makes little sense. It doesn’t get the work removed from the Web, requires contacting multiple sites, necessitates following Google’s tough DMCA standardswerwfcqtwdysxbz and does nothing to discourage plagiarism. Though certainly it can be something to try if all else fails, I’ve never contacted a search engine regarding a plagiarist and I have resolved over 400 cases.

Filing Incomplete Notices: The DMCA sets strict requirements for what must be included in a takedown notice. Though some hosts will accept incomplete notices, most will not. Simply put, the negative attitudes surrounding the DMCA along with highly-publicized cases of abuse have caused hosts to tighten their standards. Hosts can not and will not accept incomplete notices. It is important to use a solid template and make sure that you complete all of the requirements.

Misdirecting the Notice: If a host has a designated agent listed either on the Copyright Office’s site or on their own, contact that person, not the abuse team or anyone else at the host, about the matter. Though most times a misdirected DMCA notice will be forwarded on, some hosts will just drop it, especially if their DMCA agent is also their lawyer or someone else who is off site.

Not Following Up: Generally an emailed DMCA notice, if properly formatted and addressed properly, is adequate to handle a situation. However, the process is far from automated and things do go wrong. If a notice that meets the criteria does not get acted upon in 72 hours, follow up with the host. Either contact the agent again and ask them what is going on, send them another copy of the notice in a different format or consider calling them. While there’s no reason to be rude, it is important to stay on top of these matters and not give up.

Sending DMCA Notices to Non-American Hosts: Remember, the DMCA is an American law and only applies to American hosts. Though the majority of all sites are served from the United States, many are not. Though a DMCA notice is acceptable in the EU, Canada and other countries, nations such as Russia, China and most third world nations have no counterpart to the law. There, a polite letter to the host is usually the best step you can take. However, don’t expect positive results. Sadly, these are the times to consider using a notice to the search engines.

A Word on Ethics

Though I’ve talked before about ethical plagiarism fighting, some of the main points bear repeating in this article especially.

First, do not use DMCA notices to infringe upon free speech, fair use or other rights. Not all reuse of your content is illegal and it is important to make sure that the rights of the person using the work are protected as well. Plagiarists need and deserve to be stopped, but fair use, criticism and other legal reuses should be protected, even if it is hostile towards you.

Second, you should always try to resolve matters in private first. Contacting a plagiarist is always a good first step and the fairest approach. It also yields the fastest results when it works. DMCA notices should be reserved for unresponsive and uncooperative individuals that can not be handled in any other way.

Third, always try to build good relationships with hosts and other “gatekeepers”. It makes the job of other copyright holders easier and will likely help you out as well. Making sure that your letters are polite, your notices complete and that you respond in a timely fashion to all requests from hosts is very important.

Finally,remember that many people are abusing DMCA notices for their own selfish gain. It is important that you be completely honest and straightforward about your actions and don’t do anything perceived as unethical or illegal. Remember that the DMCA is a copyright law, not a trademark one, and it should only be used when your copyright is being infringed.

If you follow those steps, not only will your experiences with the DMCA go smoother and be more productive, but others that follow behind you will have an easier time as well. After all, we’re fighting a very negative image just by mentioning the DMCA and it’s important to make sure that our intents are pure and our cause is just before taking any action with it.

Conclsuions

There is nothing magical about the DMCA. There is nothing complicated or difficult about it. Once one cuts past the legalese and gets at what the law is really asking, it can be easily handled by anyone, including those with no legal experience.

All one has to do is avoid the common pitfalls and maintain an ethical stance when using the DMCA and it can be a powerful tool for stopping content theft and plagiarism.

Of course, on the same note it can be just as easy to make a mistake and render it completely useless and, worse yet, damage other’s ability to apply it themselves.

Responsibility and accuracy are the key words when it comes to the DMCA. It’s a powerful and potentially dangerous tool. It should be used accordingly.

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