photo credit: gruntzooki
Whenever I work with Webmasters and bloggers to help them file DMCA notices to get their content removed from copycat sites, they inevitably have a lot of questions about the law and how to use it. Though I am not a lawyer, I do my best to answer them.
However, to save time and effort, as well as help those who didn’t want to ask, I’ve compiled a collection of FAQs about the process with my answers to them.
Hopefully this FAQ collection will answer most of your questions about the DMCA process and, if it doesn’t, please feel free to ask your question in the comments below so it can be added.
What is a DMCA Takedown?
The Digital MIllennium Copyright Act of 1998, among its many parts, granted a “safe harbor” to Web hosts and search engines for infringement perpetrated by their customers. This means that hosts can not be held liable for any copyright infringement that their customers perform so long as they meet certain criteria.
One of the criteria is that they have to “expeditiously” remove allegedly infringing material when properly notified. A DMCA notice, also known as a DMCA takedown, is simply a letter that fulfills the requirements of the DMCA demands the removal of the work either from the search engine or the host.
Hosts, in order to preserve that safe harbor, need to comply with properly-filed DMCA notices.
Should I file with Search Engines or Hosts?
There are different schools of thought here. Some feel that, by filing with the search engines and waiting to file with the hosts until the search removal is complete, you can more completely wipe out an infringing site and prevent it from coming back.
However, search engines are slow to respond. Google can take several weeks and has complicated notification requirements. The quickest route is almost always to file directly with the host and have the work removed directly. It is also by far the easiest way, requiring just one notice, as opposed to five or more the other route.
Still, in most cases the decision is up to the filer. However, if the site is hosted in a country that does not have a takedown provision, search engine removal may be the only option.
I Am From Another Country, Can I Use the DMCA?
Yes. The DMCA allows all copyright holders, no matter where they are located, to use the takedown process. THe jurisdiction of the law is based upon where the site or search engine is hosted and the vast majority of both are within the U.S.
I have seen cases where a British man used the DMCA against an Australian plagiarist simply because the plagiarist hosted the infringing site with the U.S.
What if the Site is Hosted in Another Country?
The procedure for requesting a takedown was created by a WIPO treaty that mots countries are signatories to. However, many have not fully implemented the treaty and, as such, have no such procedure.
However, most countries that host a large number of sites, including the whole of the EU and Australia, have a process in place that functions very similar to the DMCA.
In many cases, sending a DMCA notice will work, even if the host is foreign. However, even hosts in countries without takedown procedures consider copyright infringement to be a violation of their terms of service. Therefore, even in those cases, you can often file an abuse report and secure removal of the site.
Can they Get the Work Restored?
One who has a DMCA notice filed against them has two choices for restoring the site. First, they can move to a different host and restore the site that way. Second, they can file what is known as a counter-notice and secure the return of the work.
A counter-notice is much like a DMCA notice but in reverse. Where a DMCA notice claims that the work is infringing, the counter-notice claims that it is not and demands that it be restored. Unless the person who filed the original notice files suit and secures an injunction, the work will be reposted after a waiting period.
Counter-notices, however, are extremely rare, especially if the DMCA notice was clearly justified. Such notices open up the person filing them to a slew of legal problems and, in general, it is easier to just move on.
Most cases where a site is restored involve moving the content to a new host.
How Many Should I Report?
There is no set answer to this. You can send as many or as few as you want. Just remember that any you don’t include you can always file another notice regarding later, in the event that the entire site isn’t taken down.
Still, most DMCA notices include between 5-10 items whenever a large list is involved. Some will include far fewer and others will do one item per notice. However, for the most part, it’s better to find a balance.
How Long Does it Take to for a Response?
The answer varies. Some hosts will act in less than 24 hours, others will take over a week. The more typical timeframe is between 48 and 96 hours.
However, it is important to note that hosts will typical secure removal of a work and then wait a day or two before sending an email to confirm the takedown. The reason is that they want to ensure that all cached copies of the work are cleared to avoid any confusion about the work still being up.
Will the Host Shut Down the Whole Site?
This depends on the circumstance and on the host.
If the site is largely composed of infringing material, such as with a spam blog, the host is likely going to just cancel the whole account. If the infringing work is just one or two items in a larger site, they will likely have owner of the site take down the specific items or, in some cases, surgically remove the works themselves.
Some hosts, such as Myspace, are known for surgically removing infringing works and almost never shut down an account on DMCA complaint. Others, such as iPowerWeb, frequently shut down whole sites.
To improve the odds of a domain being shut down, if you have more items to include in your DMCA notice, do so. If you reported the site once and the works were surgically removed while other infringing items remain, report the other works in a second notice.
Under the DMCA, hosts are required to ban repeat infringers from using their service.
Can I Get Into Trouble?
In order to file a DMCA notice you need to swear under penalty of perjury that you have a “good faith” believe that the work is infringing and that you are the copyright holder or an authorized agent.
If you file a knowingly false DMCA notice there are many potential legal consequences, some of them very dire. However, there is much debate and even conflicting rulings about what constitutes a “good faith” belief and where the bar is placed for meeting that test.
Generally speaking, though I am not an attorney, if you stick to cases of clear-cut copyright infringement such as scraping, plagiarism, etc. and avoid cases that raise fair use issues, the risk of trouble is relatively low.
Sadly, even cases where the DMCA notice was clearly false rarely result in as much as a counter-notice due to the legal uncertainties. This has enabled much of the DMCA abuse we see and has contributed to the reputation of the law as being one used to silence critics or stop fair use.
Is There Anything Else?
The DMCA is a powerful tool and should be used carefully. Be responsible with your plagiarism fighting and be cooperative with hosts as much as possible.