DMCA Violations and Notices: An In-Depth Guide

The DMCA violation notice is a digital copyright protection mechanism that ensures the safety of digital copyrights, trademarks, and IPs. Not every organization is aware that when you receive a DMCA violation notice, you might be able to fight to retore the disputed content.

In this in-depth guide, we'll discuss the meaning of DMCA violation, what protocol to follow when you receive one, and how to respond to a notice to regain access to your content.

What is a DMCA Violation, and How Does it Work?

The Digital Millennium Copyright Act was enacted in 1998, just before the dot com boom, to provide stakeholders sufficient coverage and protection against a growing number of malefactors misusing the anonymity of the internet to bypass copyrights.

The DMCA violation notification or takedown notice is the primary action tool that empowers creators and businesses to protect themselves, and their brand’s reputation. The notice is a declaration of infringement that the affected party makes to the ISP or web host, after which the latter must remove the unlawful content.

Once the internet platform receives the notice, it informs the alleged malefactor of the same before removing the material from its platform.

How to Respond to a DMCA Violation Notification?

Receiving a DMCA takedown notice can be nerve-wracking. Not only is it expensive to resolve (legal fees and civil fines, if deemed by the court), but it also forces you to remove the content in question immediately. There are options if your organization is hit with a DMCA violation notice and you believe there is no real violation; you can fight the takedown with a counter-notice.

Before responding to the notice, you should check whether you're accidentally violating someone's copyright. If there's even a slight chance of an infringement, it's best to remove all the material and not repeat the mistake. If you take the matter to court and you're proven to be at fault, the civil and criminal penalties can be extremely severe, from a fine of $250,000 to five years in prison.

If you’ve done the necessary research and still feel there was no infringement, you can file a counter-notice with your ISP.

When Does it Make Sense to File a DMCA Violation Counter-Notice?

We know budgets are tightening, and it’s crucial to spend cybersecurity budget as efficiently and effectively as possible. You want to make sure you’ve thoroughly evaluated if the disputed assets are owned by you. You then can take the necessary steps to file a DMCA violation counter-notice if your situation is one of the following:

• No copyright to infringe: If there was no copyright protecting the material you used, then there can't be an infringement. Check to see if the copyright has expired. Also, remember that not all content is permitted to be copyrighted.
• You have permission: If you have a valid license or written permission to use the content, the takedown notice can be deemed false.
• The wrong party sent the notice: A DMCA violation notice can only be sent by the party that owns the copyright. If an unrelated party filed the notice, then it can be contested.
• Fair use: Fair use is a complicated yet popular defence against takedown notices. If your content qualifies as fair use, you can use it without requiring permission from the copyright owner.

What qualifies as fair use?

Understanding what is covered under fair use is vital to avoid legal repercussions. Fair use, in most countries, generally includes specific uses of copyrighted work, such as criticism, commentary, news reporting, teaching, scholarship, and research. Judges use a four-factor approach to deal with fair use cases:

1. The purpose and goal of usage: Is it purely commercial, transformational, or has a non-profit educational purpose?
2. The nature of the copyrighted work: Is it fictional or factual?
3. The amount of the protected work being used: Is only a tiny part used? Or has the entire central idea been copied?
4. The effect of the infringing content on the protected work: does the infringing content hamper the commercial value of the protected work?

How to File a Counter-Notice?

It is advised to file a counter-notice, you should act as soon as possible. Even though there is no defined deadline, the longer you wait the more time the ISP or web host will have to act on the DMCA violation notice and take down the disputed material.

You must check with your ISP or web host to file a counter-notice. Most have online forms to respond to DMCA violations with a counter-notice. If your web services provider doesn't have one, you can respond with a letter.

Here is a list of the information your legal counter notice should contain:

• The date.
• Your contact details, including address, email, and phone number.
• A description of the nature of the removed material with the URL of the location it was hosted on before removal.
• Your statement reasoning why you think the takedown was wrong and that you are within your rights to use the content in question.
• Acknowledge that you accept service from the person who served you the notice.
• Remember to sign and add that you're filing the notice within the penalty of perjury.

You should also send another statement with your consent to the jurisdiction of the federal court in your district.

What Happens After You've Filed the Counter-Notice?

Once you've filed the counter-notice, the ISP or web host will notify the party that sent the original takedown and give them 14 days to file a lawsuit against you.

Much like the takedown notice, the ISP doesn't have the power to judge the case's merit. All it can do is inform the relevant stakeholders and take the next legal steps.

If the accusing party doesn't question the reasoning behind the counter notice and fails to file a lawsuit within 14 days, your content will be restored. Any 'strike' against your account, especially in the case of YouTube, will be erased.

On the other hand, if the party chooses to file a lawsuit, you'll be required to go to court and defend your position. Copyright lawsuits can be expensive, and the reputational damages incurred can be detrimental. That's why it's only wise to file a counter-notice if you're sure of your position.

Another point to remember is that the 14-day period isn't a concrete deadline. The party retains the right to file an infringement suit against you even after that period if it deems fit. The 14 days only guarantee that the web host will put your work back up; it doesn't mean you've not infringed on any copyrights.

Why Do You Need to Protect Your Brand?

The Digital Millennium Copyright Act was enacted to protect the digital property of people, institutions, and brands from being distributed without permission. And to a very large extent, it has done so. But despite the layer of protection the DMCA takedown notice offers, it can become a time-consuming and expensive hassle for brands.

The massive digital footprint of today's brands, coupled with their large number of digital assets, make it nearly impossible to rely just on the DMCA notice for optimal digital risk protection. Today's fast-growing brands need a robust solution that automatically monitors brand and content infringements across the internet and conducts takedowns without manual interference. Bolster does precisely that.

Bolster is an AI-powered automated digital risk protection solution that scans and analyzes threats across web domains, social media, app stores, and the dark web. With a 60-second MTTR and a false positive rate of less than 1/100,000, it can take seconds to identify threats accurately and initiate takedowns automatically.

Contact us today to protect your digital brand with Bolster and avoid the cumbersome process of the DMCA takedown.

*** This is a Security Bloggers Network syndicated blog from Bolster Blog authored by Bolster Research Labs. Read the original post at: https://bolster.ai/blog/dmca-violations/