In this post, I’m going to review and discuss the notice and takedown procedures of the Digital Millennium Copyright Act (“DMCA”).

To steal a trope from Tim Rogers, let me start with The Bottom Line: the DMCA’s notice and takedown procedures, while providing an effective way to remove infringing content on the Internet, is often abused by those seeking to quash legitimate criticism or commentary in ways never intended by Congress. How is this possible? Let’s get into it.

First, the players:

  • The Rightsholder—the person or entity holding the copyright to the content that is allegedly being infringed. 

  • The Uploader—the person or entity that uploads the material containing the allegedly infringing content.

  • The ISP—the website hosting the uploaded allegedly infringing content.

Step 1: The Takedown Notice 

The Rightsholder sends a “Takedown Notice” to the ISP. Under U.S. law, the Takedown Notice must include:

  1. A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or intellectual property right that has been allegedly infringed upon;

  2. Identification in sufficient detail of the material being infringed upon;

  3. Identification of the material that is claimed to be infringing upon the intellectual property. Include information regarding the location of the infringing material with sufficient detail so that the web host is capable of finding and verifying its existence;

  4. Contact information about the notifier including the name of the intellectual property owner, the name and title of the person contacting the web host on the owner’s behalf, the address, telephone number and, if available, e-mail address;

  5. A statement that the notifier has a good faith belief that the material is not authorized by the intellectual property or copyright owner, its agent, or the law; and

  6. A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the intellectual property or copyright owner.

Step Two: The Counter Notice

After receipt of the Takedown Notice, the ISP will almost certainly remove the allegedly infringing content, and will send a copy of the Takedown Notice to the Uploader. At this point, the Uploader has essentially two options: (1) go along with the takedown or (2) file a counter notice challenging the DMCA claim. A counter notice is appropriate if the Uploader has secured the rights to the content or believes that their content is protected by the fair-use doctrine. Put a pin in the fair use doctrine—I will revisit fair use in a future post.

A counter notice must include:

  1. The Uploader’s physical or electronic signature;

  2. The Uploader’s name, address, and phone number;

  3. Identification of the material and its location before it was removed;

  4. A statement under penalty of perjury that the material was removed by mistake or misidentification;

  5. The Uploader’s consent to the jurisdiction of a federal court in the district where they live (if Uploader is in the U.S.), or to the jurisdiction of a federal court in the district where the ISP is located (if Uploader is not in the U.S.); and

  6. The Uploader consent to accept service of process from the party who submitted the takedown notice.

Step Three: Potential Litigation

If Uploader gives counter notice to the ISP, the ISP must restore the content within 14 days unless the Rightsholder files a lawsuit for copyright infringement against Uploader. If a lawsuit is filed, the content will stay removed pending the outcome of the litigation.

So, to recap, the process is takedown notice, counter notice, potential lawsuit in federal court.

Now, let’s see how this plays out in real world. As a big fan of long-form YouTube criticism and musicals, I was jazzed to hear that popular YouTube critic Jenny Nicholson posted a video critique of the movie adaptation of the Tony award winning musical Dear Evan Hansen.

Jenny posted her video on October 12, 2021, titled “A needlessly thorough roast of Dear Evan Hansen.” In this video, Jenny offers detailed criticisms of the Dear Evan Hansen movie and why the adaptation of this musical into a movie failed. Six days later, Jenny received a takedown notice on her video by AMRA Music, the apparent enforcement arm of the Dear Evan Hansen Company. Because Jenny is a prominent YouTuber with 800k subscribers and tens of millions of views, YouTube did not automatically takedown the content, and Jenny filed a counter notice.

But what if this was Jenny’s first video? Without the substantial audience that she has already built, in all likelihood YouTube would have removed her video, and all of the ad revenue that goes along with it. For a content creator, a 14-day waiting period to give the chance for the Rightsholder to sue has significant effects on the ad revenue the video will receive, and its place in the YouTube algorithm. For most creators, the risk is not worth the reward. What fledgling YouTuber can afford to defend themselves in federal court? So, in essence, the Rightsholder has already won, and didn’t need to file that pesky lawsuit. And all it had to do was send an email.

Are you a content creator faced with a DMCA takedown notice? Are you a Rightsholder that wants to ensure your DMCA claim isn’t abusive? Be certain to seek out counsel with experience in these matters.

For more information on this article and this topic, contact Christopher L. Harbin.