Once you have discovered that your content has been copied by another website and you have contacted them or their DMCA Agent but to no avail, the next step is to file a DMCA Takedown Notice with the infringing website’s hosting company. To find the website’s hosting company and contact information, use one of the many free portals such as Who is Hosting This?.
Filing a DMCA Takedown Notice places the hosting company on notice that one of its users has posted infringing content. The Digital Millennium Copyright Act (DMCA) creates a safe harbor for online service providers against copyright infringement liability, both direct and secondary, provided they meet specific requirements. For purposes of the DMCA, hosting companies are considered online service providers, or OSPs. This protection manifests itself in immunity from being sued for hosting infringing content, but as Section 512 of the Act states, the hosting company must respond reasonably and expeditiously once they have been notified. To ensure maximum protection for themselves and to keep their immunity, upon notfication, hosting companies will almost always immediately require the infringer to take down the infringing content, or in many cases, they will do it themselves.
As stated in Section 512(c)(3) of the DMCA, the Takedown Notice must be formatted in a particular way and the following SIX elements must be sent by the copyright owner to the hosting company in writing:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Electronic signatures such as /s/NAME will suffice.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
A sample DMCA Takedown Notice is provided below — please remember that it is merely a template and should not be considered complete as-is. It must be tailored to your own situation and your individual needs. As usual, it does not constitute legal advice and it does not create a client-attorney relationship.
SAMPLE DMCA TAKEDOWN NOTICE
To Whom It May Concern,
I am writing this email to officially inform you that a website that your company hosts is infringing on at least one copyright owned by [YOUR NAME/COMPANY]. As such, [I/WE] request your help and cooperation in removing the infringing material immediately from your servers.
- The original [ARTICLE/PHOTO], to which [I/WE] own the exclusive copyrights, can be found at [WEBSITE].
- The unauthorized and infringing content can be found at [WEBSITE].
I have a good faith belief that the content described above is not authorized by the copyright owner, its agent, or the law. The information in this notification is accurate and I swear, under penalty of perjury, that I am the copyright owner or an authorized agent to act on behalf of the owner of an exclusive right that is allegedly infringed.
If you need any additional information or if you have any further questions, please contact me directly.
Thank you for your cooperation.
-Address (City, State, ZIP Code)