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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

Figure 4: Results of the ARIN search for IP address
Step 2. Draft the takedown notice
There’s no great mystery to what needs to go into a DMCA takedown notice. In fact, the more straightforward the notice, the more successful it’s likely to be.

The applicable provision under the Copyright Act requires that the DMCA takedown notice contain certain information. In order to comply with the statutory requirements, a DMCA takedown notice must:
• be in writing and sent to the online provider’s designated agent;

• include the signature (physical or electronic) of the owner, or a person authorized to act on behalf of the owner, of the right being infringed, together with contact information (including an e-mail address if you have one);

• identify the work infringed and the material that’s claimed to be infringing (when identifying the infringing material, the identification should provide sufficient detail to permit the online provider to locate the infringing material on the online provider’s system);

• include a statement that infringing material is being used without permission from the copyright owner; and • include a statement that the information in the letter is accurate (and where the person sending the letter isn’t the owner, a declaration that the person sending the letter is authorized to act on behalf of the owner).

If you want to make it clear that your notice is a DMCA takedown notice, you can add the language that the letter is “a DMCA takedown notice sent pursuant to 17 U.S.C. §512.” There’s no reason to go beyond the statutory requirements, and doing so actually may be counterproductive (I’ve seen letters from attorneys who have included incorrect references to legislation and even to entirely irrelevant Internet request for comments (RFC) documents; the inclusion of such incorrect information only raises questions regarding the legitimacy of the takedown notice) (Figure 3).

Possible Negative Ramifications Of DMCA Takedown Notices
In certain extreme cases, the DMCA takedown notice also may give rise to a lawsuit against the person who sent the DMCA takedown notice. This happened in California last year. A mother who videotaped her young children dancing to the Prince song “Let’s Go Crazy” posted the video to YouTube. The video itself was 29 seconds long, and the song can be heard for approximately 20 seconds. Several months after uploading the video, Universal Music Publishing Group—the owner of the Prince song—sent a DMCA notice to YouTube. The mother, after seeking counsel, sent a counter-notice asserting that her use of the song constituted fair use and, thus, did not infringe Universal’s copyright. YouTube restored the video on its website about six weeks later.

Figure 5: GoDaddy’s Agent Designation filed with the Copyright Office.
Shortly after access to the video was restored, the mother filed suit against Universal. The case is unique in that the mother is seeking damages based upon Universal’s sending of a DMCA takedown notice in bad faith. While the court has expressed that it “has considerable doubt that [the mother] will be able to prove that Universal acted with the subjective bad faith required…,” the court is nonetheless permitting the case to proceed beyond its preliminary phase.

Notwithstanding the court’s doubts, it’s still worth tracking the progress of the case. Depending upon the outcome, it may be necessary for copyright owners to perform a fair-use analysis before sending a DMCA takedown notice.

Samuel Lewis is a Board-Certified Intellectual Property law specialist and partner at Feldman Gale, P.A. in Miami, Fla., and a professional photographer who has covered sporting events for a quarter-century. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it or This e-mail address is being protected from spambots. You need JavaScript enabled to view it .


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