ByDMCA Fair Use Rules—When Can Someone Use Copyrighted Content?
When dealing with copyright infringement, you should use the most powerful tool at your disposal—the DMCA takedown notice.
The Digital Millennium Copyright Act (DMCA) and other U.S. copyright laws grant you the default ownership over your creations and the right to take down unauthorized copies of your work.
Before sending a takedown notice, you should check if the suspected infringers are using your content within the fair use limits.
What Is Fair Use?
Fair use doctrine might seem like a way for someone to avoid copyright infringement while still using your content, but its primary purpose is to protect the freedom of speech, guaranteed by the First Amendment.
When someone uses copyrighted content without getting permission from the copyright owner and claims fair use, they should use that material in a transformative way.
This means that they can use a portion of the original content for:
- Commentary
- Criticism
- News reporting
- Research
- Education
Without fair use, there would be no journalism, education, or any critical content. Even YouTube, with its strict copyright system that allows anyone to file a copyright claim, acknowledges fair use as a legitimate protection method against copyright infringement accusations.
How Does Fair Use Affect Your Copyright?
It may seem that fair use clashes with DMCA protection you get over your creative endeavors, but you always have a right to report copyright infringement.
Your default copyright lasts during your lifetime and an additional 70 years, but you can implement additional measures to keep your content safe.
These measures include adding a copyright notice to your website or registering your work with the U.S. Copyright Office.
None of these rights are affected by the fair use policy, as it is a grey area, even within the system.
Courts don't apply any general rule when parties claim fair use in copyright infringement cases. Judges rule each lawsuit on a case-by-case basis.
There are four factors considered in the fair use disputes:
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The Transformative Factor |
Relates to the purpose of use and the way the material changes. This includes:
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The Nature of the Copyrighted Work |
This factor considers whether the copied content is informational or entertaining. It also examines the nature of the original content—whether it is factual or fictional, published or unpublished |
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The Amount and Substantiality of the Section Taken |
There is not a predetermined percentage of the original someone can safely take, but the rule is: the less, the better |
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The Effect on the Potential Market |
This factor examines whether copied work affects the copyright owner's income |
What To Do if Someone Uses Your Content Outside of the Fair Use Scope?
Even if you learn how to copyright your work and apply all available protection measures, this may not stop someone from copying your content and claiming fair use.
Copyright works in a way that, if you disagree with the way someone used your content, you can file a DMCA takedown notice to the Internet Service Provider hosting the content.
If you are confident that the infringers didn't stick to the fair use doctrine, sending a copyright infringement notice allows you to remove stolen content quickly. They may file a DMCA counter-notice, but it will not have any effect if there is no concrete proof of fair use.
Some websites allow you to fill out a predetermined DMCA form, but, in most cases, you will have to draft the notice yourself.
This can be a bit demanding because there are specific details that every DMCA notice needs to contain.
What Are the Mandatory Parts of Every DMCA Takedown Notice?
A copyright infringement notice doesn't have a predetermined template, but there are sections that you have to include.
Here is an overview of mandatory parts:
- Identification of the infringing content—Such as description and links
- Details about the original content—Title, description, and links
- Proof of ownership—This only applies in case you have a copyright certificate
- Contact info—Such as name, email, and phone number
- A statement of good faith—You have to proclaim that you are the copyright owner and that the content was used without your permission
- A statement under the penalty of perjury—You need to confirm that to the best of your knowledge, everything you claim in the notice is true
- An electronic signature
These sections don't have to be arranged in a specific order, but it is essential not to leave anything out.
DoNotPay—A Simpler Way To Deal With Infringers
Another factor to consider when sending your takedown notice is that ISPs are usually large companies. They are often bombarded with copyright claims and takedown notices and will not pay attention to anything that looks unprofessional.
A high-quality takedown notice is essential in this case. If you don't want to spend hours researching how to format this document, you're in the right place.
DoNotPay is a virtual lawyer app specialized in drafting documents and making the whole process super simple for you.
Our app will not only generate a takedown notice tailored to your case but also send it to the appropriate ISP.
Follow these steps to file a DMCA notice with DoNotPay:
- Open DoNotPay in your
- Click on the DMCA Takedown feature
- Enter the title of your content
- Give us the link to the website hosting your content without authorization
- Paste the link to your original content
- Click on the Sign and Submit button
We take over from there! You can check your results in the My Disputes tab.
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