Submitted by New Media Rights last modified Tue, 01/08/2008 - 12:25pm
|This guide, originally created by the Fair Use Network, has been edited by New Media Rights and is provided for users and creators who have received a DMCA section 512 "takedown" notice.|
Step 1. Critical evaluation of the notice.
The core of every takedown notice is a demand for an ISP to "take down" material - to disable access or remove links. There can be significant variation among takedown notices, though, so it pays to look carefully at any notice that an ISP may pass along to an Internet user.
Many takedown notices are automatically generated, or produced by filling out an online form. An automatically generated notice may not include much useful information. At its sparsest, a takedown notice may include only contact information, a list of allegedly infringing files, a reference to the work claimed to be infringed, and some brief formulaic statements - for example, that the sender has a "good faith" belief that the material is infringing. Other takedown notices may be much more elaborate, or even include a takedown demand in the midst of a longer cease and desist letter.
In these pages, we will address only Section 512 takedown notices - demands sent to an ISP - and what notice targets can do in response. The "Cease and Desist!" guide has information about examining other kinds of claims and demands.
Four key facts are essential to evaluating any cease and desist letter, including a takedown notice.
1.Who is sending the notice?
2.What kind of ISP received the notice?
3.What is the sender demanding?
4.What is the complaint about?
Who is sending the notice?
Who is the original sender? An individual? A large corporation? Is the rightsholder a person or company that the person whose material is targeted recognizes? Perhaps the sender has a reputation for trying to intimidate people or extort money from them. On the other hand, the rightsholder may be aggressive about enforcing its rights, but not known for sending takedown notices (or cease and desist letters) based on weak copyright claims. What are the resources available to the rightsholder, should it choose to pursue its claim beyond the initial takedown notice?
Is there a business relationship between the original sender and the targeted user? The legal issues surrounding works-for-hire, transfers of copyrights, and joint authorship can be complex, and may affect the legal status of the original work. In such a situation, the recipient should probably seek the advice of an attorney right away.
One might also measure how serious the rightsholder is by seeing who actually wrote and sent the takedown notice. Is it from the rightsholder itself, its in-house legal counsel, or an outside attorney? Or is it from another agent of the rightsholder, such as a publicist or rights-enforcement company? Notices from law firms don't necessarily mean that the rightsholder will be prepared to file a lawsuit, but at the least, they suggest that the rightsholder has some financial resources available to pay legal fees.
Is the sender targeting the recipient specifically? Or is the target just one among many? A cease and desist letter may target one individual, or it might be part of a larger campaign by the sender. Some entities and individuals have become known for aggressive, or even over-aggressive, assertion of IP rights. A check of Chilling Effects and other sites may give information about whether the complainant is a repeat sender.
What kind of ISP received the notice?
What kind of online service does the ISP perform? Is the ISP the webhost for the targeted material, or it is some other kind of hosting service? Is it a search engine; or an Internet access provider? Different kinds of online service providers have different legal obligations that will likely affect what happens when they receive a takedown notice.
What is the sender demanding?
What is the sender asking the ISP to do? A § 512 takedown notice, by definition, is a request to remove access or links to content. But some notices may include other demands or threats. Demands that go substantially beyond the takedown request should be separately evaluated, as if the notice were a cease and desist letter.
Has the sender assigned any timetables to its demands? While IP owners may or may not have a right to demand action on a particular timetable, or at all, a date may suggest that they plan further action after that date.
What is the complaint about?
Finally, what is the complaint really about? What is the context, or larger issue, behind the letter? The underlying issue, for example, may be that the sender feels upset about the content of the target's work, because it is a satire, casts the sender in an unflattering light, or discloses something private or secret. Or the underlying issue may be that the sender wants a credit or a licensing fee. Understanding the sender's motivations may help determine what responses will be most effective in resolving the situation.
An examination of the letter itself can indicate whether it appears to be automatically generated, a standard form notice, or detailed and closely tailored to the particular facts. Many takedown notices are automatically generated, or the products of online forms. But some notices may be detailed and specific, including information about claims beyond the takedown request. A detailed and specific notice may suggest that the sender is taking the issue seriously, and is prepared to go beyond the § 512 takedown process. On the other hand, an aggressive tone by itself does not necessarily mean that the claims are more legitimate, or that the rightsholder is more serious about pursuing them.
Chilling Effects has hundreds of takedown notices to look at for comparison. Regardless of the tone, however, a takedown notice is likely to have one concrete outcome: the ISP will take down the targeted material.