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What are DMCA Takedown Notices and Takedown Counter-Notices?

What are DMCA Takedown Notices and Takedown Counter-Notices?
By Justin M. Jacobson, Esq.

What is the DMCA?

The Digital Millennium Copyright Act (DMCA) was passed by U.S. Congress to combat copyright infringement in today’s digital content age. This law applied existing United States copyright law to digital mediums and content distributors as well as created a “safe harbor” provision for internet service providers (ISPs) and other digital content providers. Consequently, this “safe harbor” insulates a digital content provider from potential liability for copyright infringement if they adhere to and follow an established “takedown” notice and counter-notice procedure formalized under this legislation.

What is a DMCA takedown notice? What is a DMCA takedown counter-notice?

As a result of this law, when a user is purported to be utilizing another’s work(s) without proper permission or authorization, a digital content provider’s DMCA takedown notice procedure may be utilized to enable a copyright owner to submit a formal takedown notice to a third-party website host, content distributor, search engine, or ISP to request the removal of an allegedly infringing work from the digital platform. A DMCA takedown notice may be submitted to a multitude of major content providers such as Facebook, YouTube, Instagram, Apple Music, TikTok, Spotify, Pandora, Soundcloud, and many other digital content distributors and aggregators. The formal notice received by an entity is then sent to the user who uploaded, monetized, or is otherwise claiming rights in the reported work.  The party who receives a DMCA takedown notice from a digital content provider can dispute and contest the provided takedown notice by submitting a DMCA takedown counter-notice. This counter-notice is submitted by the individual or company to challenge the issued takedown notice to maintain the current work and to dispute the allegations continued in the initial DMCA takedown notice.

Ultimately, both the initial DMCA takedown notice and any DMCA counter-notice must be signed by the submitting party (either the content owner or their authorized representative) under penalty of perjury which ensures that any sent DMCA takedown or counter-notice is provided in good faith. Accordingly, in order for an ISP or other digital platform to enjoy the “safe harbor” legislation protection of the DMCA, the digital content distributor must promptly comply with a proper takedown notice as the failure by the ISP or platform to do could subject the content site to contributorily liability for any copyright infringement and for any other violations occurring on its platform, including the complained about instance.

Who can file a DMCA Takedown Notice?

A DMCA takedown notice can be filed by any owner of copyright owner, including an individual content creator as well as by any third-party authorized company, including content publishers or distributors, whenever a protected work is allegedly being utilized by another party without proper authorization or rights from the proper owner(s). In fact, another party’s unauthorized usage could include both commercial as well as non-commercial ones as any permissionless use might violate a copyright owner’s rights in their protected work.

Overall, since every situation is different, it is crucial that a party who desires send as well as one who receives a DMCA takedown notice promptly act as the failure to do so could cause a user’s account to receive a “strike,” the content could be removed; or, worse, the entire account might be suspended or terminated for repeated violations. Therefore, in order to best navigate these situations, it is prudent to consult a qualified attorney in the field who can intelligently advise a copyright owner or other party on their right and duties under the DMCA and how to best protect their protected creative works.

This article is not intended as legal advice, as an attorney specializing in the field should be consulted.

© 2022 Justin Jacobson Law, P.C.