A take down notice is a tool used to protect registered intellectual property rights (patents, trademarks, and copyrights). It is the phrase used to talk about the procedure for requesting an internet service provider remove or disable access to illegal content sold or uploaded without the permission of the original content creator.
For example, if you find someone else selling a product using your patented, trademarked, or copyrighted material on Amazon or Etsy, you can submit an infringement claim and Amazon or Etsy will stop the offending seller from being able to sell their infringing product. This kind of action is only used for the protection of registered intellectual property rights. There are 2 potential benefits to using a take-down process. First, it can be as effective as a courtroom case of infringement. And, second, it can be an effective tool to protect your immediate sales interests.
Example: Using A Take-Down For Registered Copyright Protected Original Works
Among the more common uses of a take-down notice is for copyright protected original works. A take-down for copyright protected work is also known as a Digital Millennium Copyright Act (DMCA) Take-Down Notice. This tool is extremely important in this digital age where everything is online and easily copied for infringement.
The Digital Millennium Copyright Act was enacted in October of 1998 by president Bill Clinton. The purpose of this act was to demand that the specific infringed proprietary material be taken down from the internet and any other public places. Take-downs were originally enacted to protect copyright infringement on material such as visual files, audio files, written material, artwork, or computer software. Fast forward to 2022, take down notices are used for all types of intellectual property, including copyrights, trademarks, and patents.
The DMCA of 1998 not only protects the victims of intellectual property infringement, but it also protects the internet service provider (ISP) as well as the website operator (e.g. Youtube or Facebook). The internet service providers and website operators cannot be held liable or sued by the content creator of the intellectual property if a website user posts infringed works on their site as long as they work to swiftly remove the copyrighted material off their site.
Each internet service provider has a process for removing infringed material from its site. An example being Youtube, who removes the audio from a copyrighted video but leaves the video posted without sound. Further, Twitch disables the channel posting copyrighted content. These swift actions are helpful to the victim of infringement as it saves them time and money.
Take-Down Benefit 1: A take-down notice can be used before court proceedings and sometimes even instead of litigation.
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How To File A DMCA Take down Notice Form
In order to file a copyright take down notice, a take down letter must be drafted up. In the take down letter, you must include three main pieces of information. It should include: 1. the infringing URL, 2. the source URL, and 3. a description of ownership. The infringing URL is the link to where the infringing content was found on the internet (internet service provider, social media platform, etc). The source URL is the link to where the content was stolen from (your site). The description of ownership must explain your ownership of the infringed material and what makes you sure it was stolen.
It is important to include the contact information of the original content creator so the internet service provider can reach out if needed. In the letter, you may also request the relief you are seeking from having your work violated.
Once the take down letter is written and complete, you must follow the DCMA instructions of the hosting website where the infringed content was uploaded and file the take down notice through that internet service provider. Each internet service provider may have a different process. For one example, check out YouTube’s process to submit a copyright takedown request. Keep in mind it can important to check details, for example in the footer of the site or FAQs – where instructions are frequently found.
Important Tip: Although you can easily draft and complete your own take down letters, there are websites available that can help by drafting a letter after one fills out a form.
Carson Patents®
Who Receives The Take Down Letter?
Notices are sent to the individual or business who is selling protected material online. In practice, this may be difficult to achieve. Frequently, it is the web hosting company, search engine company, sales platform, or the internet service provider that receives the notice rather than the posting user. The DMCA of 1998 protects all the internet services businesses from being sued.
Sending a take down notice to an internet service provider is used to bring their attention to the fact that there is protected content illegally posted on their site, so they can take action to remove the offending content. The internet service providers will nearly always remove the offending content quickly, because they can be held liable for contribution to infringement once they are aware if they do not stop the offender.
Today, infringement violations can be found online by the internet service provider (ISP) themselves. Many ISPs have their own algorithms that scan for copyrighted media being uploaded or used without permission.
Take-Down Benefit 2: A take-down notice can be used to quickly protect your online sales interests.
Carson Patents®
What Happens If A Take Down Is Falsely Received?
Once a take down notice is received, the receiver can challenge its validity. The first time a DCMA take down is filed will likely not lead to a lawsuit being filed against the infringer. Most internet service providers have their own copyright strike system to address repeat offenders of copyright infringement. The first strike would act as a warning. One may even potentially need to attend copyright school after the first strike depending on the internet service provider.
Can I File A DCMA Take Down Outside Of The US?
A DMCA take down form can be filed for an entity outside of the US. However, if an alleged copyright violator does not live in the United States, they do not have to comply with US laws. If they wish, they can comply voluntarily and remove the infringed content themself.
Fair Use Doctrine
The fair use doctrine of US law permits the limited use of copyrighted content without permission from the original content creator or paying royalties. It is used as a defense against copyright infringement in cases where alleged infringers believe their use was within fair use. The fair use doctrine allows copyrighted content to be used in limited purposes such as research, teaching, news reporting, criticism, and commentary. Therefore, if someone files a take down notice letter and it is challenged by the alleged violator, it is on filer to carry the burden of proving their use was within fair use. For an example of fair use in music, check out our music copyrights article.
The Cons Of Using a Take Down Letter
A take down notice is just that, a request to take down the infringed content that is already available on a site. The notice does not prevent the infringer from simply reposting the protected content on a different website or under a different account. All an infringer would have to do is change the file name and re-upload it in order to be back to violating the original content creator’s work. This is notably seen on seller sites such as Amazon or eBay.
The alleged infringer has a right to challenge a take down notice requirement if they believe they did not upload infringed material. To do so, a counter notification must be filed. The may lead to litigation between the two parties, resulting in legal fees and damages if one loses the case.
If an infringer challenges the validity of a take down and there isn’t an infringement lawsuit filed by the original content creator within 14 days, the Internet service provider is obligated to restore the infringed work back onto the website until further litigation occurs. Due to this loophole, DCMA take downs can be often ineffective at protecting intellectual property rights.
Not only can take downs be ineffective, but if a copyright infringement claim is found to be unjustified, the infringer can file a lawsuit against the original content creator for damages and loss in profits. Take downs are helpful for quick fix situations and can be a solution to violations of infringement.
