Morris Manning & Martin, LLP

Elements of a DMCA Takedown Notice

09.17.2019

The Digital Millennium Copyright Act (DMCA) is an extension of U.S. copyright law, passed by the federal government in 1998, clarifying rights as they apply to digital media. The DMCA includes notice and takedown provisions as a means for copyright holders to enlist service providers’ help in removing infringing material from internet sites. To initiate the takedown process, a copyright owner or the owner’s agent must send a takedown notice to the applicable service provider requesting that the provider remove infringing material.  A website’s Terms of Use often offers details on how and where to send a takedown notice.  Before sending the notice, a copyright holder should ensure that the other parties’ use of the material does not qualify as fair use.

Under U.S. copyright law, the following elements should be included in a takedown notice:

  1. The signature of the copyright owner or owner’s agent, in physical or electronic form.
  2. Identification of the: (i) copyrighted work(s) infringed; (ii) the infringing activity; and (iii) the location of the infringing activity (typically by providing the URL).
  3. Contact information of the notice sender, including an email address.
  4. A statement that the notifier has a good faith belief that the material is not authorized by the intellectual property or copyright owner, its agent, or the law.
  5. A statement that the information provided is accurate and the notifier is authorized to make the complaint on behalf of the intellectual property or copyright owner.

For further information about the DMCA’s notice and takedown provisions, counter notices, and fair use, please contact Whitney Coble at [email protected] or any member of the Technology Transactions or Intellectual Property practice groups at Morris, Manning & Martin, LLP.  If your company is providing services in the EU, you may also wish to review this legal update pertaining to the new EU Directive regarding liability for posting infringing material.