Digital Millennium Copyright Act (DMCA) Takedown Notice for Online Copyright Infringement [USA Hosted Website]: DRAFT Only

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What are your legal rights if your copyright is infringed online by a USA Hosted website?

If you as the copyright owner or exclusive licensee of the copyright material or either's agent reasonably believe a USA Hosted website is infringing your copyright, you may issue a Digital Millennium Copyright Act (DMCA) Takedown Notice to the "Copyright Agent" of the USA based Internet Service Provider (ISP) who is hosting the website.

A breach of your copyright may include:

❌ A website posting your copyright material without your permission to do so;

❌ A website using your copyright picture, song, film or other work; +/or

❌ A website allowing its users to illegally access or download your copyright material.

Upon receipt of your DMCA Takedown Notice the Copyright Agent of the Internet Service Provider (ISP) will:

1️⃣ Immediately remove or block access to the infringing content; and then

2️⃣ Issue an Infringement Notice to the website owner or user who posted the material.

Step 1️⃣: Ask Nicely?

We recommend you contact the infringing website and make a direct request for the removal of the infringing material.

The website may not be aware they are breaching your copyright and once placed on notice, may promptly comply with your request.  

If the website refuses to take any action, then we recommend you ask the website owner:

Why do you think you have a legal right or permission to use the infringing material?

If the website owner fails to provide an adequate response, you can then consider whether to issue a Takedown Notice.

Step 2️⃣: Confirm the alleged copyright infringing website is hosted in the USA?

In order to confirm the USA based Internet Service Provider (ISP) is hosting the alleged copyright infringing website you can the following free search service:

➲ whoishostingthis? 🔎 Discover who is hosting any website

Step 3️⃣: Select the relevant Takedown Notice based on where the website is hosted

For websites hosted in:

⚖️ Australia ➲ Use our Takedown Notice for Online Copyright Infringement [Australian Hosted Website];

⚖️ USA ➲ Use this document which automatically generates a DRAFT Digital Millennium Copyright Act (DMCA) Takedown Notice + obtain professional legal advice from a practising USA Attorney before deciding whether to proceed.

⚖️ Elsewhere ➲ We recommend you obtain professional legal advice directly from a lawyer with knowledge of the relevant foreign jurisdiction.

Using the Digital Millennium Copyright Act (DMCA) Takedown Notice procedure

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are being hosted by overseas service providers which are often based in the USA.

See our FAQ ➲ For a USA Hosted Website: How does the DMCA Takedown Notice Procedure work?

DMCA Takedown Notice Checklist

See our FAQ ➲ What do I need to do before deciding whether to send a DMCA Takedown Notice for Online Copyright Infringement [USA Hosted Website]?

What happens when the DMCA takedown notice is received by the Internet Service Provider (ISP)?

Upon receipt of the Digital Millennium Copyright Act (DMCA) Takedown Notice the Internet Service Provider (ISP) must promptly remove, or disable access to, the copyrighted material.

What is a dmca counter-notice?

See our FAQ ➲ For a USA Hosted Website: What is a DMCA Counter Notice?

Important: If the website can prove that your Digital Millennium Copyright Act (DMCA) Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it is a Federal Crime to swear a false statement of good faith in a Digital Millennium Copyright Act (DMCA) Takedown Notice which is required to be signed under penalty of perjury.

Note: More information about the DMCA Takedown + DMCA Counter-Notice process may be found here.

Credits:

Social Media Sharing Image courtesy of Markus Winkler on Unsplash

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What is a *.law web domain?

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All about *.law domain names

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What do I need to do before deciding whether to send a DMCA Takedown Notice for Online Copyright Infringement [USA Hosted Website]?

DMCA Takedown Notice Checklist

1️⃣ Does the website hold a legally valid licence to use your copyright material?

Is it possible that your agent mistakenly issued a licence to use your copyright material on your behalf and failed to notify you?

✅ We recommend you always double-check by asking the website for a copy of its legally valid licence to use your copyright material (if they maintain they have one) before considering whether to issue a Digital Millennium Copyright Act (DMCA) Takedown Notice.

2️⃣ Does a "Fair Use" exception apply?

"Fair Use" is a concept used in the US copyright law.

It is a much more flexible, open-ended concept and does not apply in Australia.

In Australia, we use a more limited concept called "Fair Dealing".

See this FAQ: Australian Hosted Website v. USA Hosted Website: Does where the website is hosted make a difference? to learn more about the differences between the two concepts.

The following has been extracted from the Stanford Article, Measuring Fair Use: The Four Factors

The following 4 (arguably 5) factors are relevant in deciding whether the dealing is fair using a Balancing Test:

➲ The Transformative Factor: Purpose and Character of the Use,

➲ The Nature of the Copyrighted Work;

➲ Effect of the Dealing on the Potential Market/value of the work;

➲ Amount and substance copied relative to the whole; and the

➲ The "Fifth" Fair Use Factor: Are you good or bad?

3️⃣ Always ensure you obtain legal advice from a practising USA Attorney regarding whether a “Fair Use” exception will apply in your situation?

4️⃣ Double-Check the details

You will need to double-check that you have provided sufficient information to enable the Internet Service Provider's (ISP) Copyright Agent to take the required action to quickly identify + remove your copyright material:

For example

✅ The specific infringing URL(s); and

✅ A copy of your copyright material so that it can be easily identified.

If you don’t provide accurate information your Digital Millennium Copyright Act (DMCA) Takedown Notice may not achieve the desired outcome + there will most likely be delays caused by requests for further + better information.

5️⃣ Send the DMCA Takedown Notice To the Internet Service Provider's (ISP) Copyright Agent

The Internet Service Provider (ISP) will usually provide an email address for the delivery of notices.

If not, a hard copy of the Digital Millennium Copyright Act (DMCA) Takedown Notice can be posted to the Internet Service Provider's (ISP) nominated address.

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a practising USA Attorney for legal advice specifically tailored to your needs & circumstances.

Australian Hosted Website "Fair Dealing" Defence v. USA Hosted Website "Fair Use" Defence: Does where the website is hosted makes a difference?

Increasingly, Australian websites are hosted by Internet Service Providers (ISP) in the USA 

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are hosted by Internet Service Providers (ISP) from overseas which are often based in the USA.

Q: Does where the website is hosted makes a difference?

A: Yes.

The Pirate Publisher: A Satirical Commentary on the state of copyright laws (pre 1911 treaty)

The Pirate Publisher—An International Burlesque that has the Longest Run on Record by Joseph Ferdinand Keppler, published as a centrefold in Puck, v. 18, no. 468 (1886 February 24).

A commentary on the state of copyright laws that, prior to a 1911 treaty, generally offered no protection to foreign authors and works.

In the cartoon, hordes of German, Norwegian, French, English, and American authors surround a publisher who republishes their newly-created works without attribution or royalties in a foreign country, as international law then allowed.

Of note is W. S. Gilbert, fifth from the right in the front row, as the many unauthorised or "pirate" productions of H.M.S. Pinafore caused him and Arthur Sullivan to première The Pirates of Penzance in America, to at least gain the initial profits there before anyone else could exploit it, and the title and subject of The Pirates of Penzance is sometimes - although somewhat dubiously in my opinion - considered to partially be a reference to the issue of pirate productions of their works. Other authors shown include Mark Twain, Tennyson, Robert Browning, F. C. Burnand, Émile Zola, Jules Verne, Victorien Sardou, Wilkie Collins, Oliver Wendell Holmes, Sr., as well as many others.

Source: From Wikimedia Commons, the free media repository.

Australian Hosted Website "Fair Dealing" Defence v. USA Hosted Website "Fair Use" Defence

It appears that the state of copyright laws have generally improved to offer more protection to Copyright Owners since 1911.

However, as an example: Due to the 'Fair Dealing" v. "Fair Use" distinction between Australian and the USA, Australian Copyright Material today still may be used + hosted on USA ISP's in situations or for purposes which would breach Australian Copyright law.

See this article Fair Use v. Fair Dealing: How Australian Copyright Law Differs to learn more about the differences between the two concepts.

The following examples have been extracted from the above article to help explain what you can do with "Fair Use" on a US Hosted website that you cannot do with "Fair Dealing" on an Australian Hosted website:

adapting to new technologies

Fair Use is flexible enough to adapt to change.

"For example, in the US, Fair Use made it legal to use a VCR to record television at home in 1984.
In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete."

artistic use

In Australia, it’s legal to use copyright material to create a parody or a critique, but not for purely artistic purposes.

"For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new."

uses that document our experiences

"Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way.
Without Fair Use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.
In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song.
Stephanie Lenz was able to have the video reposted under US Fair Use law – but an Australian wouldn’t have that right."

technical and non-consumptive uses

"The internet we love today is built on Fair Use.
When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on Fair Use.
Under Australian law, even forwarding an email without permission could be an infringement of copyright."

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

For a USA Hosted Website: What is a Digital Millennium Copyright Act (DMCA) Counter-Notice?

What is a DMCA Counter-Notice?

The owner of the USA hosted website who you have alleged is infringing copyright by serving the Internet Service Provider (ISP) with a DMCA Takedown Notice may issue a DMCA Counter-Notice claiming there has been a mistake and they dispute that the material infringes your copyright.

The Internet Service Providers (ISP) must then restore, or enable access to, the copyright material on its system or network; unless you provide notice, within 10-14 business days of receiving the DMCA Counter-Notice, that you or your agent have commenced legal proceedings seeking a Court order to restrain the activity that is claimed to be infringing.

The form of the DMCA Counter-Notice is suggested by the DMCA statute, which can be found at the U.S. Copyright Office's official website: https://www.copyright.gov.

This means that you will need to issue legal proceedings if you want the material to be permanently removed.

It will then be up to the Court to determine whether the publishing of the material on the website is an infringement of copyright or whether there is a valid defence to the claim of infringement of copyright.

Important: If the website can prove that your DMCA Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it is a Federal Crime to swear a false statement of good faith in a DMCA Takedown Notice (please refer to the minimum requirements above regarding making your statements under penalty of perjury).

Therefore, we strongly recommend you always have a USA Attorney review your DRAFT before you decide whether to proceed.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a practising USA Attorney for legal advice specifically tailored to your needs & circumstances.