Top 5 DMCA Mistakes

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It’s an email or IM I get almost every day. Someone has found their content on a site and, after trying to work with the person involved has failed, they filed a notice with the host and didn’t get a response.

However, since a small number of hosts receive the lion’s notices, I take a look at my own records and cases and see that I’ve never had a problem, at least not a significant one. I then ask them to forward me what they’ve submitted and, almost inevitably, find something amiss.

Filing a takedown notice is not something you should do lightly nor is it something that comes easily to the first-time filer. However, if you’re sure of your situation and you’ve read the instructions on this site, its worthwhile to take a moment and avoid some of the more common pitfalls that come with filing a notice.

1. Not an Infringement

A lot of time people send DMCA notices over issues that aren’t copyright infringements. For example, you can’t copyright a name, an idea or even a look. There may be other issues, such as trademark infringement, but the DMCA process is not the system to resolve those.

If you send a DMCA notice over a matter that isn’t an infringement, no response is the best thing that can happen, the worst being that the work is removed and you find yourself sued.

How to Fix: Simple, reserve the DMCA process for clear-cut cases of copyright infringement. If you have doubts, consult an attorney.

2. Not Using a DMCA Notice

If you’re complaining of copyright infringement to a host within the U.S., you need to file a full and proper DMCA notice. Otherwise, the host has no obligation to remove the content or take any action at all. They don’t even have to send you an email back.

Though many hosts will respond to non-DMCA-compliant takedown requests, others will not and the number in the latter camp is growing. As such, take a moment to make sure your notice is complete, meeting all of the requirements, before sending.

How to Fix: Simple, use the DMCA stock letters on this site. I’ve never had one I’ve filed rejected on the grounds of being incomplete.

3. Going International

The DMCA is a U.S. law aimed at U.S. hosts. If the site is hosted in a country outside the U.S., the law doesn’t apply and, nor do the stock letters. This doesn’t refer to where the infringer is, but where the server itself is located.

Still, sending a notice to a different country, especially one that doesn’t speak English, isn’t likely to get a response.

How to Fix: Most major Internet countries have similar laws on the book. The EU has the EDEC, which describes the takedown procedure that is used in most of its countries. However, in countries such as China and Russia, where hosts are routinely uncooperative, it may be best to focus on search engine removal.

4. Wrong Host

Finding the host of a site is no easy challenge but a host can’t take down material that isn’t actually on their servers. It’s physically impossible.

However, determining who is the correct host of the site requires a combination of both tech and sleuthing skills. Worse still, even the best can get it wrong from time to time as many infringers will take great precautions to hide their true source.

It’s important to double check you have the right host before sending the notice.

How to Fix: WhoIsHostingThis, which I blog for, provides a very solid host detection service for novice users. You will likely want to confirm your findings with Domain Tools. You can find out information on both in my video on the topic.

5. Wrong Person

Once you have the host, you have to be careful to submit the notice to the correct person. Many hosts are very large corporations and sending an email to the company itself does not guarantee it will make it to the right hands.

Finding who to send a DMCA notice to can be very tricky, especially since many companies deliberately hide this information, but finding the correct email address can be the difference between a quick response and no reply at all.

How to Fix: Read my post about the 6 Steps to find a Host’s DMCA Contact to learn how to find the contact information for a host and send the letter to the right person, on the first try.

Bottom Line

Sending a DMCA notice is not simple process, especially for those who have never done it before. It requires a decent amount of research and an understanding of both the tech that runs the Web and copyright law.

However, if you can invest a little time in the front end, it becomes very easy to file the notices yourself later. The first one can take hours of time to prepare, but the ones that come after it get progressively faster and faster, until it only takes a few minutes.

If you can get past the initial frustrations, the process becomes a breeze in no time at all.

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