DMCA Abuse in a Nutshell

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What Is DMCA Abuse and How To Protect Your Work From It?

Since the introduction of the Digital Millennium Copyright Act (DMCA), copyright owners enjoy full DMCA protection and various tools that enable them to fight copyright infringement.

The rules brought on by the copyright laws still seem to favor big copyright owners, such as music labels and corporations, instead of the individual creators.

This makes authors vulnerable to DMCA abuse and left without proper means to fight against it.

What Is a DMCA Takedown Notice?

The Copyright Act of 1976 grants default copyright to content creators as long as they put their work in a tangible form.

This copyright protection covers any original content. Copyright refers to both published and unpublished works of authorship and lasts during the author's lifetime and an additional 70 years.

While this default copyright establishes the basis of ownership, it doesn't do much to fight copyright infringement.

This is where DMCA steps in. The Act, signed into law in 1998, was meant to establish two 1996 World Intellectual Property Organization (WIPO) treaties.

The goal was to protect Internet Service Providers (ISP) and Online Service Providers (OSP) from copyright liability and enable copyright holders to report copyright infringement quickly.

DMCA takedown notice allows copyright holders to deal with infringers and ISPs and OSPs to enjoy their safe harbors.

When someone infringes on your copyright, you draft a DMCA copyright infringement notice and send it to the appropriate ISO/OSP, instructing them to take down the stolen content.

This is an excellent way for you to keep your content safe, but it's also a perfect tool for corporations to abuse their DMCA-given power.

DMCA Misuse and Safe Harbors

Once an ISP or OSP receives a takedown notice, they have to act upon it to keep their Safe Harbor privileges.

The Safe Harbor concept gives ISPs and OSPs immunity from prosecution, establishing that, as long as they remove the infringing content, the copyright holder cannot send demand letters to them.

The problem is that the copyright holders are usually corporations, with the means to send a massive amount of takedown notices. This DMCA-notice flood pushes platforms like Twitch, YouTube, or Google to remove their users’ content in a somewhat questionable way.

Twitch DMCA takedowns and YouTube strikes caused by copyright claims have taken their users by surprise. Platforms have removed an enormous amount of content and asked their users to go over their remaining works to avoid getting their accounts suspended.

Both platforms stick to the Repeated Infringers policy, meaning that:

  • Each time a user gets a takedown notice, their account gets a strike
  • Three strikes lead to the permanent termination of the user’s account

This doesn't sit well with the creators, who often claim fair use in their content or have been active on the platforms for years, and going over everything they posted would be impossible.

It also doesn’t help that their content gets taken down without precise info on infringing parts and without a chance to file a counter-claim.

Abuse of the DMCA Takedown Notice

The main issue with takedown notice is that ISPs must act upon it quickly, regardless of whether the claim is legitimate or not.

They will remove supposedly infringing content first, and the recipients of takedown notices can file a counter-notice later. The content remains removed, and there is a mandatory waiting period of ten business days before restoration if it occurs.

DMCA abuse usually takes on one of these three forms:

Misuse of Automated Systems

Big corporations, such as record companies, often use automated systems to check for infringing content and send DMCA notices.

This can cause accidental takedowns of legitimate content that go to a ridiculous extent.

One example is Warner Bros filing a bunch of DMCA takedown notices against their own websites

The Exploitation of the Fair-Use Policies

Fair-use policies are misused from two sides:

    • The copyright holders ignore the concept when considering possible infringers
    • Authors sometimes overstep the fair use boundaries

Fair-use is a grey area, and even when claimed in court, the judges seem to decide on the case-by-case basis

No Consequences for Perjury

Copyright holders have to provide a statement under penalty of perjury in their notices, claiming that everything stated is valid. Still, ISPs don't check the validity of notices.

This has caused brief takedowns of legitimate content. The practice has been used by businesses to censor competition and by different stakeholders to silence journalists

What To Do if You Get a DMCA Notice?

You can take all precautions to avoid copyright infringement and still end up getting a DMCA notice.

Your ISP will probably react immediately and get your content taken down, but you should respond with a counter-notice anyway.

If you believe there has been misidentification or a mistake, send a counter-claim both to the copyright holder and your ISP, asking them to reinstate your content.

It's essential to include the following details into your counter-claim:

  • Your contact details, such as name, phone number, and email address
  • Description of the content that was taken down
  • A statement that you agree to the jurisdiction of Federal District Court for the judicial district in your area
  • A declaration under penalty of perjury that everything mentioned in the counter-notice is true
  • A good-faith statement that you believe that ISP removed the content due to mistake or misidentification
  • Your physical or electronic signature

Keeping Your Content Safe

Dealing with copyright infringement accusations and avoiding penalties is only a fragment of the copyright-related troubles every creator has to deal with.

Getting the best protection for your work requires you to go a step further than relying on the default protection granted by the Copyright Act.

Here are some other methods for copyrighting your content and keeping it safe:

  1. Register your work with the U.S. Copyright Office to get a copyright certificate, a public record of your ownership. It will allow you to prosecute infringers in court
  2. Add a copyright notice to your website to let people know the content is copyrighted. It's not required by law, but the process may deter potential content thieves
  3. Send a DMCA notice in case someone infringes on your content—it's not a tool reserved only for corporations

Send a DMCA Notice With DoNotPay

DoNotPay is a virtual lawyer app that can help you remove any infringing content from the internet. We are here to simplify this overly complicated process and create a high-quality and effective takedown notice.

Follow these steps:

  1. Open DoNotPay in your
  2. Tap DMCA Takedown
  3. Give us the info and the link to your content
  4. Paste the link to the website hosting your content without permission
  5. Click on Sign and Submit

DoNotPay will generate the notice and send it on your behalf.

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