Digital Millennium Copyright Act Takedown Notice

Congress passed the Digital Millennium Copyright Act (DMCA) in 1998 to make a number of changes to copyright law, including a new set of "notice and takedown" procedures that give copyright holders a quicker means of removing unauthorized content from the Internet than an infringement lawsuit.

Under the DMCA, copyright holders who believe their work is being infringed online can send a notice to a service provider (like YouTube or deviantART) with information on the asserted unauthorized use of their materials.  The service provider can decide to comply with the request promptly and notify the original poster of the material. If it does so, it will maintain its “safe harbor” from liability and cannot be sued by copyright holders seeking monetary damages or other legal remedies.  On the other hand, if the provider declines to comply with the takedown notice, it risks defending a lawsuit. Since service providers don’t want to be sued, they usually comply right away.  While having the material taken down often satisfies the copyright holder, the copyright holder still has the legal right to sue the individual who posted the material.

Even if a copyright owner requests that your work be taken down under the DMCA, you can provide a counter notification requesting that it be put back up if you believe you have the right to post it. In order to qualify, your counter notification must contain four parts:

  • Your physical or electronic signature;

  • identification of the materials that were removed or disabled, and their location;

  • a statement under penalty of perjury that you have a good faith belief “that the material was removed or disabled as a result of mistake or misidentification"; and

  • your name, address, phone number, and consent to the jurisdiction of the Federal Court for the area where your address is located (or, if the address is outside the United States, consent to the jurisdiction of any judicial district in which the service provider to whom you’re writing can be found), and consent to accept service of process from the copyright owner.

The language of the DMCA, requiring “a statement under penalty of perjury,” and its particular requirement of “mistake or misidentification,” sounds intimidating. However, the Electronic Frontier Foundation (EFF) and other free speech advocates have persuasively argued that a copyright holder is “mistaken” if she or he fails to consider fair use.  For example, in the “dancing baby” case involving a Prince song, the district court agreed with EFF and explicitly stated that “[a] good faith consideration of whether a particular use is fair is consistent with the purpose of the statute,” meaning that it is a mistake for a copyright owner to issue a takedown notice without considering whether the work qualifies as fair use. The outcome of the copyright holder’s appeal in that case is still pending.

If you have a strong enough fair use claim or other right to post the material, you may even be able to bring a suit against the copyright holder for misrepresenting that your material was infringing.

However, be aware that filing counter notice ups the ante, as the next step required of the copyright holder, if she or he insists that the work should be taken down, is to go to court to seek a restraining order against posting the material.  The copyright holder might also be more inclined to file an infringement suit once someone has stepped forward to oppose the takedown.

Related Cases

Lenz v. Universal Music Corp.-- Lenz posted a home video of her kids with a Prince song playing in the background. In response to a takedown notice, Lenz claimed the video was fair use of the song. 

These materials are not intended, and should not be used, as legal advice. They necessarily contain generalizations that are not applicable in all jurisdictions or circumstances. Moreover, court decisions may be superseded by subsequent rulings, and may be subject to alternative interpretations. Corrections, clarification, and additions are welcome here.