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Hey, That’s My Work on Their Web Site!

by Lisa Shaftel and Linda Joy Kattwinkel, Esq.

Published with permission of LInda Joy Kattwinkel, Esq.

Has your work been infringed on someone’s Web site?  What are your legal rights?  Who is responsible for removing it?

You could try contacting the person who posted the file, but you may not be able to find out who that is, and they may not respond to you. Fortunately, the Digital Millennium Copyright Act of 1998 (DMCA) gives you an alternative.

Whenever your work is copied without permission, everyone who participates in making or distributing the unauthorized copy is legally liable for infringement. On the Internet, this includes the Internet service provider (ISP) which hosts the website where the infringing copy is being displayed, even though ISPs are not involved in deciding what content will be posted.

The DMCA gives ISPs a “safe harbor” from this kind of liability. It established a legal “notice and take-down” process which allows you to demand that infringing copies of your work be removed from online sites. If your notice complies with the statutory requirements, the ISP will not be liable for infringement if it takes down the infringing content.

The entire text of the DMCA can be found at www.copyright.gov/legislation/dmca.pdf.
Here’s how to use the DMCA process:

First, find out if the ISP has a DMCA “designated agent.” In order to qualify for the DMCA safe harbor, an ISP must register a designated agent to receive DMCA notices. The ISP is supposed to submit the designation to the Copyright Office and to post contact information for their designated agent prominently on its Web site. The Copyright Office maintains a list of designated agents on the Copyright Office Web site, www.loc.gov/copyright/onlinesp/list/.

If you don’t find a designated agent, you can still use the DMCA process. Many ISPs have not heard about this law, but when they find out about it, they want to comply.

How do you find the ISP for the infringing website?  One way is to run a “whois” search for the site’s URL. There are several sites that will do a global “whois” search, for example, www.Betterwhois.com or www.register.com.

Enter the URL for the Web site.

When you get the results, look for the “domain servers.” This will tell you the URL of the ISP for the site, at least as of the date the whois record was last updated.
Another method is to go to your “start” button on your computer, select “run,” and enter “rmd.”  This will bring up a dos text screen. Enter “ns lookup” followed by the website URL and hit enter. You should get a string of numbers, which is the numerical URL for the domain name server currently hosting that URL.

Then type “ns lookup” again, followed by that numerical URL and enter. That should give you an alphabetical URL, which you can type in your browser and hopefully find the Web site for the ISP.  (Note: unfortunately, these methods are not always successful. Some unscrupulous ISPs hide their identification information from these programs).

Second, write a formal take-down notice to the service provider with the following required information:

  • Your name, address, phone, and email
  • Your electronic or physical signature
  • Identification of your work that is being infringed, such as its title or an image (If you have registered your work, it wouldn’t hurt to include a photocopy of your registration certificate. However, it is not necessary to have a copyright registration to use this procedure.)
  • The Internet location of the infringing content, such as a URL
  • Sufficient information or description of the infringing content so that the ISP can identify it correctly, e.g., a print-out of the infringing webpage with the infringing content circled
  • A statement that you believe in good faith that the infringing content was not authorized
  • A statement, under penalty of perjury, that the information in your notice is accurate, and that as the copyright owner, you are authorized to submit the notice

This list of required information can be found in Section 512(c)(3) of the DMCA.

San Francisco intellectual property attorney and Guild member Linda Joy Kattwinkel has prepared a fill-in-the-blank DMCA take-down notice. Click here for the form.

Third, send your take-down notice to the designated agent by e-mail and certified return receipt mail or private courier (e.g., FedEx) and save the receipt.

Once the ISP receives your formal notice, it is required to “expeditiously” remove or block access to the infringing work.

The ISP is not required to notify the person who posted the infringing content (the ISP’s “subscriber”) before removing it, but the ISP must notify the subscriber after the content is removed. The DMCA also provides a process by which the subscriber can appeal the takedown with a “counter-notice.” That counter-notice must include a statement under penalty of perjury that the content was taken down as a result of mistake or misidentification, and that the subscriber will accept service of a lawsuit in the subscriber’s geographic jurisdiction.  See Section 512(g) of the DMCA.

If the ISP receives such a counter-notice, it will notify you. Then, if you don’t tell the ISP that you have filed a lawsuit against the subscriber within 10 days, the ISP must re-post the disputed content.  This is rare, however. Most people will consent to removal of the content rather than submit a counter-notice. The DMCA includes penalties for making misrepresentations in take-down notices or counter-notices.

© 2007 Lisa Shaftel, National Advocacy Committee Chairperson, and Linda Joy Kattwinkel, Attorney-at-Law

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