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Tuesday, February 17, 2009

Take Down That Image

It’s a good idea to get some perspective before you issue a threatening DMCA takedown notice

This Article Features Photo Zoom

YouTube’s Chief Counsel, Zahavah Levine, responded to Potter’s request on October 14, 2008. According to Levine, “[l]awyers and judges constantly disagree about what does and does not constitute fair use. No number of lawyers could possibly determine with a reasonable level of certainty whether all the videos for which we receive disputed takedown notices qualify as fair use.” Consistent with the idea of leaving the dispute to the real players and the courts, Levine also noted that “YouTube does not possess the requisite information about the content in user-uploaded videos to make a determination as to whether a particular takedown notice includes a valid claim of infringement.”

Still, the exchange between the McCain campaign and YouTube highlights how effective DMCA takedown notices can be when seeking to prevent continued infringement of your work. Since many online providers don’t want to risk losing the DMCA’s safe harbor, the DMCA takedown notice can be a quick and inexpensive vehicle for enforcing your copyrights.

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Figure 2: The Copyright Office’s website; the list of online providers with designated agents may be found under the “Online Service Providers” link.

Preparing Your Own Takedown Notice
Step 1: Locate the designated agent

Not only is a DMCA takedown notice a highly effective way to enforce your copyrights and stop infringement, it’s also a relatively inexpensive way to police your copyrights. However, what many photographers fail to realize is how simple it is to prepare your own DMCA takedown notice.

The first step, after finding the infringement, is to determine whether the online provider has registered with the Copyright Office. You can visit the Copyright Office online at www.copyright.gov and select the “Online Service Providers” link (Figure 2).

Assume that you’ve discovered that someone copied one of your images without authorization and posted it on the popular social networking site, Facebook. Scrolling through the list of online providers with a designated agent, you’d eventually locate the reference to Facebook, Inc., which, in turn, will give you access to an Adobe Acrobat document containing the agent designation.

While identifying the designated agent for the more popular social networking sites is relatively easy—in fact, some online providers have information regarding DMCA notices available directly on their websites, saving you the time to visit the Copyright Office’s website—some instances of infringement may require extra digging in order to determine whether the online provider has a designated agent. For instances such as these, you’ll need to make a few stops at some other websites before looking up the designated agent at the Copyright Office.

3 Figure 3: If you have to write a letter, keep it short, polite and to the point. The language in this example is ideal.

For this example, assume that you’ve discovered your image being used on “The College Baseball Blog” (Figure 1). Since the website itself doesn’t identify the online provider directly, you’ll have to determine the identity of the online provider indirectly. This can be accomplished by determining to whom the Internet Protocol (IP) address—the unique numerical network address assigned to computers on the Internet—is assigned. In order to discover this, you first need to translate the domain name (e.g., thecollegebaseballblog.com) into the unique numerical network address. On both Windows and Mac systems, you should be able to issue the command line instruction “nslookup” and the domain name. The utility should return the IP address (in this case, 208.109.181.151).

Once you have the IP address, you’ll need to visit the American Registry for Internet Numbers (ARIN) at www.arin.net. On the main ARIN web page, you’ll find a unique “Search WHOIS” tool that will permit you to search based upon the IP address. Plugging in the IP address of 208.109.181.151 and searching returns the registration information for the online provider to whom the IP address has been assigned. In this case, the company is GoDaddy.com, Inc. (Figure 4).

Having discovered that GoDaddy is the online provider, you can now visit the Copyright Office website and look for the agent designation for GoDaddy (Figure 5).