Personal Info and DMCA Notices

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One of the most common questions I get about filing DMCA notices is “Do I have to give up my address.” With privacy being such a big concern and most spammers/plagiarists not being too pleased about being targets for DMCA notices, people are understandably wary about putting their home address on something that may well be sent out directly to an infringer.

The truth is that the DMCA itself doesn’t provide much guidance on this front. Section 512, the area of the law that spells out the requirements of a DMCA notice, doesn’t go into great deal and simply says the following is required:

“Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.”

This means that, theoretically, all one has to do is provide any information that would let the service provide contact them, including just an email address. This would make Google’s new DMCA form more than compliant with the law.

However, this has not always been the view of other hosts. Some sites, notably eBay, reject notices that do not contain a full address and other contact information. Part of this stems from the requirements for filing a counter-notice, which says that a user must provide:

“The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located…”

This is because the next step after a counter-notice has been filed is for the copyright holder to file a lawsuit and seek an injunction. For that, they need to be able to serve the user with papers for the suit and, to that end, an address is required.

In short, filing a DMCA notice, theoretically, requires nothing more than an email address but a counter-notice requires a full address and phone number. This imbalance has caused many hosts to demand full contact information from those filing DMCA notices. Many of these companies will then forward on the full DMCA notice, contact information intact, to the person being filed against, giving that person the power to harass and annoy.

As such, many are wary of giving out too much personal information when filing a DMCA notice, but there are ways around this issue.

How I Handle It

When developing my DMCA system, I focused on creating one that can be used consistently and without fear of notices being rejected. Since the DMCA is the last resort in most cases and the takedown regime is a fairly standardized system, it was more important to ensure that the notices would be accepted as close to 100% of the time as possible and could be sent out quickly.

Since some hosts demand full contact information and this behavior isn’t even consistent when sending several notices to the same host, I made the decision to include all of my contact information, including address.

Though this meant many my DMCA notices had my mailing address, I recently made the switch to using my attorney’s address. Since it is an address where one can contact me, all that is required, it should be sufficient. Also, one could easily use a P.O. box or any other location they collect mail.

Remember, this is an address where people can contact you, not necessarily where you live.

You can also do something similar with your phone number, forwarding it to an answering service that you check or directing it to your attorney’s office.

The main goal is to give out the information that the host needs to contact you without giving up your personal data. This is something that can be fairly easily done, especially if you plan in advance.

What Hosts Should Do

Ideally, privacy issue should not exist. Though I don’t think it is unreasonable for hosts to ask for additional contact information beyond just an email address, though the law doesn’t require it, that information should not be passed along blindly to the person being filed against.

The reason is that the vast majority of DMCA notices, despite their reputation, are not controversial and only a very small fraction of a percent escalate to a counter-notice or a lawsuit. As such, there isn’t much point in forwarding the full contact information, especially if it belongs to an individual, until the decision is made to dispute the notice.

Ideally, I would like to see hosts forward on the complete DMCA notice with the identifying information removed. They can withhold that information until they receive a counter-notice, this way there is a balance in the information both sides have.

Of course, the law doesn’t require that and, given the expense and effort involved, it is unlikely hosts will actually do this. Still, it seems to be the fairest route.

Bottom Line

If you are worried about your privacy and need to file a DMCA notice, I would encourage you to provide your full information but use an address where you can be contacted but isn’t a place that you live or work at. The same goes for your phone number.

If that can’t be done for whatever reason, then you can attempt to file the notice using only your email address, perhaps even using a special one just for DMCA notices, but don’t be surprised if some hosts reject that notice on the grounds of insufficient contact information.

If that happens, you are definitely in a predicament but most would be better off by just resubmitting the notice with the needed information.

In the end, after hundreds of DMCA notices, I’ve never had an issue with someone coming after me, calling me or otherwise using my personal information against me. I grant that the danger is there and I am just lucky, but I also don’t think the risk is as high as it would seem.

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