Legal Building Blocks: Takedown Notice

You’re surfing the web or reading a craft-related blog and suddenly you see it: a website you’ve never heard of is offering one of your original patterns to its readers as a free download. Or maybe your original photograph is posted on someone else’s blog without your permission or attribution, or a company is selling mugs decorated with a graphic you created. You contact the website and ask them to remove your content, but nothing happens. Is there anything you can do to stop others from infringing upon your work in this way, short of hiring an attorney?

Luckily, there is a legal remedy that is less drastic—and less expensive—than litigation. It’s called a takedown notice: a formal request by a copyright holder asking an Internet service provider to remove content that infringes upon copyrighted work. It sounds simple, but, like any legal remedy, to be effective it must be done right. Read on to learn about takedown notices, then use our template to craft your own.

Download the Takedown Notice Template here. Please note that this Word document has markup language turned on to show notations of specific sections. Before using this template as your own, delete the notations and highlighted formatting.

What is a takedown notice?

As the Internet grew and copyright infringement became as easy as a right-click or a quick copy-and-paste job, lawmakers came under increasing pressure to reduce the amount of infringing content being distributed online. In 1998, Congress passed a statute called the Digital Millennium Copyright Act to tackle some of these problems. One of the DMCA’s provisions creates a very important quid pro quo: it protects Internet service providers (or ISPs, companies which provide internet access or other web-related services) from some liability for copyright infringement in exchange for their cooperation in removing infringing material from their sites.[1]

The DMCA creates a safe harbor for ISPs, eliminating the ISP’s risk of secondary liability if it takes certain steps to protect copyright holders. To get this protection, an ISP must first register the name of an agent, a designated entity to receive communications about potential infringement. When a copyright holder believes that protected work is being infringed on a website hosted by the ISP, the copyright holder can send notice formally requesting that the ISP remove the infringing content. This specific form of notice is called a “takedown” notice; sometimes you’ll see the process called “notice and take down.”

When an ISP receives a takedown notice, it has two options: (1) it can remove the allegedly infringing content and thereby be exempt form secondary liability for infringement; or (2) it can leave the content up and remain exposed to secondary liability. As a practical matter, most reputable ISPs tend to remove allegedly infringing content after receiving a properly submitted takedown notice in order to protect themselves from secondary liability. This gives copyright holders one way to protect copyrighted work without resorting to full-on litigation.

How does a takedown notice work?

 The take down process starts when you discover an unauthorized use of your copyrighted work posted online. Make sure you note the name of the infringing website and the URL of the page where your content is posted. Begin by contacting the infringing website directly and requesting removal of your copyrighted item. (You may get lucky and encounter someone who simply doesn’t realize that they’re infringing your copyright.) If your copyrighted content is not removed after a reasonable period of time, then it’s time to consider a takedown notice.

Determine where to send the takedown notice

Once you’ve identified the website that’s posting your protected work, it may be quite easy to determine where to send a takedown notice. For example, most popular blog-hosting sites have a link that will take you to the page where copyright infringement is addressed (it may be called Terms and Conditions; Abuse; FAQ; or Contact Us). Most reputable sites will post their definition of what constitutes copyright abuse, along with the postal or email address of the agent or employee who handles takedown requests. Some websites will also set out a specific procedure they would like followed in copyright disputes; some even include a submittable form to alert the ISP of claims of infringement.

If you can’t find information on the website itself, it’s time to put on your Nancy Drew hat. It’s usually easy to find out which ISP hosts a website by doing an online search called a WHOIS search. Plenty of websites will perform a free WHOIS search, including whois.domaintools.com; whois.net; and whoxy.com.[2] Usually the WHOIS search will identify the ISP server; sometimes you’ll get even more information, such as an email address or contact name (which may be called “Abuse Contact Email” or something similar). If the website is a bit, well, sketchy, the WHOIS search may not contain as much information, but you can do an online search for additional ways to identify a website’s ISP server if need be.

Check the ISP server’s procedures

Once you know the name of the infringer’s ISP, go to the ISP website and see if it has a link to its preferred procedures for claims of infringement. Again, you may find this information by scrolling down to the bottom of the home page and clicking on a link, or do an internet search for the ISP name plus the terms “copyright,” “take down,” or “DCMA.”)

If the ISP contains a page specifying how to report alleged infringement, then carefully note all of the requirements so that you can comply. For example, some ISPs or their agents will ask that you send a takedown notice in a specific manner (postal mail, say, instead of email). Some will ask you to include specific information; again, to get the best results, include all the information that the ISP or its agent requests. Other ISPs will not ask for a specific format, but put the burden on you to draft an appropriate takedown notice.

Draft the takedown notice

The DCMA requires that takedown notices contain very specific information. Many of these are common sense but it’s important that your takedown notice contains all of the information that the DCMA requires or the ISP may not act on it. Required information includes:

• your contact information;
• the specific material on the website that infringes your work (including a URL);
• a description of the copyrighted work that you claim is being infringed;
• a statement that you are submitting the notice “in good faith”;
• a statement attesting to the accuracy of the information in the notice: “under penalty of perjury, I attest that the information contained in this notification is accurate”;
• a statement that you are the copyright holder or the holder’s agent, and therefore have the right to send the notice.

If the particular ISP asks for other reasonable information, provide that too. The takedown notice must be sent “in writing,” but the DCMA provides that email is a form of “writing.”

Once the takedown notice is complete, send it to the ISP and/or its agent, keeping a copy for yourself and a record of when and how it was sent. Follow up within a reasonable period of time to confirm that the infringing content was removed.

Before you hit send. . .

Some important things to keep in mind when you are considering sending a takedown notice:

• A takedown notice is a binding legal document. It’s a criminal offense to knowingly send a takedown notice that you aren’t entitled to send. Govern yourself accordingly.
• Be sure all of the requested information is included in your notice. Some websites are very persnickety about only acting on takedown notices that precisely comply with the DCMA or even their own internal procedures.
• If you are permitted to email the takedown notice, try using the phrase “copyright infringement” or “DCMA copyright takedown notice” in the subject line. It may get processed faster.
• Make sure you really do own the copyright before sending a takedown notice. For example, models often ask an ISP to remove photos even though the photographer owns the copyright. Do not send a takedown notice if you do not own the copyright or an appropriate license.
• Be sure you understand exceptions to copyright protection, like fair use and parody. For example, it’s permissible to use a short quotation from a book for purposes of a book review; a takedown notice is not appropriate for this type of use.

If you have any questions or concerns, please find a qualified IP lawyer to advise you. This area of the law is complicated and changes quickly.

Download the Takedown Notice Template here. Please note that this Word document has markup language turned on to show notations of specific sections. Before using this template as your own, delete the notations and highlighted formatting.

[1] Someone who is found to have committed copyright infringement faces potential criminal and civil liability. An ISP that hosts copyright infringement can also be held liable for damages, even if it is merely the hosting mechanism and not the poster of the infringing content. This is called secondary liability. ISPs have such large quantities of material on their servers that it would be practically impossible to monitor them all for copyright infringement, yet the risk of a court judgment, particularly one with significant monetary damages, is a serious concern.

[2] I have no affiliation with any of these links but am providing them merely as an example of places to perform a WHOIS search.