Hello again. We have spent a lot of time in the last month talking about piracy and the many things you can do as an artist to prepare for and, if necessary, handle leaks. Today we are going to revisit that topic once more to talk about the steps that need to be taken once your material has already leaked online. You may think all hope is lost, but with a little hard work you can curve the unwanted availability of your material in a big way and we are here to help. If you have any questions about the content of the blog, or if you would like more information regarding the distributional services offered by Haulix, please email james@haulix.com and share your thoughts. You can also find us on Twitter and Facebook.
If you have been following our company updates over the last few weeks may already know this, but recently Haulix began working on a new update to our distribution service that will allow clients to automatically issue DMCA takedown notices for their copyrighted material. We are admittedly still a few weeks from launch on that project, but we wanted to begin our promotional efforts this afternoon by shedding some additional light on the purpose of these notices and the creation/submission process currently in place.
DMCA stands for Digital Millennium Copyright Act, which is a group of laws that protect copyrighted content and its creators on digital mediums. The DMCA was signed into law in 1998 and has since been the source of the vast majority of infringement issues arising from the continuing spread of digital media. There are many aspects to the law that are worth taking the time to research and understand, but for the purposes of this post we are going to look at the part most are familiar with (at least by name): The DMCA Takedown Notice.
A DMCA Takedown Notice allows copyright holders to request an Internet Service Provider (ISP), search engine, host or other type of site-owner/manager to remove material that is infringing their copyright, regardless of whether or not said copyright has been properly registered. In other words – it provides a means for artists and the people who back them (labels/agencies) to ask that their content not be shared without authorization.
In order to file a DMCA Takedown Notice, you must first establish three things:
- You either own the copyright or have the right to claim infringement because of a copyright you license. If you do not have either of these, you are already wasting your time.
- The alleged infringement is not covered by an exception, like Fair Use or free speech laws. Stanford Law’s website describes Fair Use as ‘any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an illegal infringement.’ You do not need to understand all the ins and outs of this law to file a DMCA, but you do need a “good faith” belief that the alleged infringing use is not covered by any law which would permit its use.
- The content is capable of being infringed online, which essentially means that the work in question is available in digital form. Some examples include text files (txt, rtf, doc, docx, etc), Images (smb, jpg, png, gif, etc), video (mpg, avi, mov, etc.), Music/Audio (aif, mp3, mp4, wav, etc), and images found on social networks (Facebook, Tumblr, etc.).
Once you have determined all three of these things to be true, it is time to move forward with filing a DMCA Takedown notice. It is important to understand that there are very specific provisions of the law you must comply with or the receiving agent may ignore your request:
1. Make sure you have found the proper source of the infringement – When you find your content on another website it may or may not be common knowledge who their hosting company is, but thankfully the internet provides a number of tools to aide in the discover process (I recommend domain tools.
When contacting ISPs with Takedown Notices that are often specific email addresses provided on the host company’s website. You may need to hunt for it, as no two sites are ever the same, but searching DMCA may quicken your hunt for results. If you try and discover there are no specified contacts listed for DMCA Notices, search the US Copyright Office List Of DMCA agents. It should be current.
2. If an online form specifically for DMCA Takedown requests is provided by the contact you are trying to reach it is wise to use that form as your initial point of contact as it is – unsurprisingly – your best bet for yielding a timely response. This may not happen with larger companies (like Google or Bing) generally use forms to direct specific issues to their different departments. There may be separate departments for music and images, for example, or perhaps a bunch of smaller teams dedicated to all digital piracy. You experience will vary by contact.
3. If you discover there are not forms provided and you still feel driven to fight for your rights as copyright holder you will need to take it upon yourself to send your notice to the designated DMCA agent (refer to #1 for help with locating this individual). Email will likely be acceptable for complaint submissions, but you will need to check with your specific agent to learn how they prefer to handle requests. It may be 2014, but some people still think fax machines are the best way to send business materials. Don’t waste time thinking about how much simpler or quick things could be and comply. This is another war for another day.
4. If you find yourself in a position where you need to create the Takedown Notice, there is a very specific set of information you will need to provide (and it is the same as what any form would ask you to fill out). According to lawyer Sarah Hawkins, your DMCA Notice must:
• Be in writing (this includes both hardcopy or digital)
• Be signed (whether in writing of via electronic signature) by the copyright owner or agent
• Identify the original copyrighted work (or works if there are multiple) you claim has been infringed
• Identify the material that is infringing your copyrighted work
• Include contact information so the designated agent can reach you, if necessary
• Include a statement your complaint is in “good faith"
• Include a statement the information in the notification is accurate
• Include a statement that under penalty of perjury you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
I know that list can be a little overwhelming upon first glance, but in the age of the internet there is virtually no form letter in existence that does not come with hundreds, if not thousands of examples available online, for free, that you can copy/paste and adjust to fit your needs. You should always triple check your letters to make sure everything comes across in your own voice and that the above list is followed to a ’t,’ but it’s completely understandable if you choose to use a template letter in order to begin filing your first DMCA Takedown Notices. In fact, I have included a letter below you can feel free to duplicate, manipulate, and use however it is needed. If you have any further questions about these notifications, just comment below and let us know!
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Sample DMCA Takedown Notice:
To Whom It May Concern:
Hello. My name is [YOUR NAME] and I am the [Job title] of [company/band/agency]. A website that your company hosts is currently infringing on at least one of my copyrights and the following serves to assert my rights to request removal of the content under the Digital Millennium Copyright Act (DMCA). I am filing this report in good faith of alleged copyright infringement am contacting you as the designated agent for the site upon which the infringing work currently appears. This letter is a Notice of Infringement as authorized in article 512© of the U.S. Copyright Law.
I am the copyright owner of the works listed below and the following is true and accurate to the best of my knowledge.
The original work, which I claim copyright for, appears online with my permission at the following locations:
[Insert URLs where your original work is located]
Copies of this original work have been attached to this email for your evaluation and determination.
The allegedly infringing [work – image/sound/video] appears on the following sites:
[Insert URLs where your work is being used without your permission]
My contact information is [address/phone]
The information of the alleged copyright infringer based on what I have been able to find is [insert all the information you have about the site/person behind the infringement]
I have a good faith belief that the copyrighted works referenced above that appear on the website for which you are the registered DMCA agent is not authorized by the copyright owner, its agent, or by law.
I declare, under penalty of perjury, that the following information is true and correct to the best of my knowledge and that I am the copyright owner [or have the license to the copyright] entitled to exclusive right which I believe are being infringed.
signed [insert name] on [date – day/month/year] in [city/state]
[signature]
**TERMS & CONDITIONS OF USE: While forms are commonly used and available elsewhere around the Internet it is important to understand the limitations provided by forms. A form, by its very nature, is previously written, usually to address a typical situation. Unfortunately, in law there are few typical situations. While this form will be useful for some, the use of a form should not be viewed as a replacement for competent legal advise adapted to your particular situation. Haulix accepts no liability if you do use this or a modified version of this Agreement.**
