Step One: Find the Site’s Designated Agent.
Use one of these sites to get the web site’s registration information:
Let’s use “infringer.com” as an example. On internic.net/whois.html, I might see this:
Domain Name: INFRINGER.COM
Sponsoring Registrar: Network Solutions LLC
Name Server: NS3.WORLDNIC.COM
Name Server: NS4.WORLDNIC.COM
To translate, the (fictional) domain name “infringer.com” is registered with Network Solutions. The host is what’s listed after the words “Name Server.” Both servers listed have the name root: worldnic.com, which is the web site of Network Solutions. (In this case Network Solutions is both the site’s registrar and host, but more often the registrar and the host are different.) That’s the way to decode the host’s url: just look for the extension (.com, .net, .org, etc.) and whatever precedes it, ignoring everything up to the first period.
So, knowing this, you’d go to Network Solutions’ web site to see if it has listed a designated agent for DMCA notices. It does, under its “DMCA Policy.” If it didn’t, you’d simply go to the Designated Agent directory on the Copyright web site at http://www.loc.gov/copyright/onlinesp/list/index.html. (If the hosting site hasn’t designated an agent, go to Step 3 below.)
Step Two: Send a Takedown Notice
Your next step is to notify the ISP of the infringement, using what the DMCA calls a “Takedown Notice.” For your notice to be effective, you must:
- send a written notice to the ISP’s designated agent;
- identify the copyrighted work claimed to have been infringed;
- identify the infringing material with specificity (i.e., the exact URL – vague statements that a network has infringing copies of content somewhere on its system are insufficient);
- provide sufficient information so that the service provider can contact you (address, phone number, and e-mail address);
- include a statement that you have a good faith belief that the poster is using the material without authorization from you; and
- sign the notice with a statement that the notice is accurate under penalty of perjury.
Although these elements are a required part of the notification, the law does not require perfection, except with respect to the requirement that notification be in writing (whether an e-mail is sufficient depends on the case law in each federal circuit; when in doubt, follow up with a certified letter).
“Substantial compliance” with the other requirements is adequate. The following form, however, meets these requirements:
|NOTICE OF TAKEDOWN REQUEST PURSUANT TO
TITLE II OF THE DIGITAL MILLENNIUM COPYRIGHT ACT
TO: [ISP’s designated agent and address]
RE: [web site displaying your work]
1. Identification of Copyright Work Claimed to have been Infringed:
2. Identification of the Infringing Material:
3. Statement of Good Faith Belief:
The undersigned hereby certifies its 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.
I hereby certify under the penalties of perjury that the foregoing is true and accurate, and that I am authorized to act on behalf of the owner of the copyrighted material being infringed.
Now for the good part. Upon receiving your Takedown Notice, the DMCA requires the ISP to: “expeditiously take down or block access to the material,” and many ISPs will do so immediately.
The ISP hosting your content is entitled to respond with a counter notice stating that the content in question is not infringing. This rarely happens unless there is a genuine issue of ownership. The counter notification, like the initial notice, must be given pursuant to the DMCA’s provisions. If the ISP receives an acceptable counter notice from the web site’s subscriber, the ISP must give a copy of the counter notice to you. The ISP will replace the removed or disabled material within 10 to 14 business days following receipt of the counter notice unless it first receives a notice from you that an action seeking a court order to restrain the web site’s subscriber from engaging in infringing activity has been filed.
[last updated 2012]