Key Takeaways:

  • A DMCA claim is a legal request for the removal of copyrighted material that has been used without authorization.
  • The DMCA takedown process requires detailed documentation, including proof of ownership and specific location details of the infringing content.
  • Website owners can file a counter-notice if they believe the takedown request was made in error or maliciously.
  • There are safe harbor protections for online service providers, provided they adhere to DMCA compliance guidelines.
  • Fair use and other legal exceptions to copyright infringement can apply in some cases.
  • Penalties for false DMCA claims can include perjury charges and legal action against the filer.
  • Content creators and website owners should implement preventative measures to minimize the risk of copyright infringement claims.
  • UpCounsel can connect individuals and businesses with experienced copyright attorneys for assistance with DMCA claims.

What Is a DMCA Claim?

A DMCA claim, also called a DMCA Takedown Notice, is a complaint made if someone suspects a website of copyright infringement. The Digital Millennium Copyright Act (DMCA) is a set of laws that exist to protect copyrighted content on all digital mediums.

Enacted in 1998, the DMCA implemented treaties signed in 1996 by the World Intellectual Property Organization (WIPO) Geneva Convention. The treaties address issues that affect photographers directly.

The DMCA says that, while an Internet Service Provider (ISP) is not liable for displaying information that infringes a copyright, the ISP needs to remove the material from their users' websites if they receive proper notice. 

A DMCA claim requires that hosting providers, upon receipt of an infringement claim, remove or disable access to any websites that are potentially infringing.

Your copyright does not have to be registered with the U.S. Copyright Office to take advantage of this DMCA regulation.

Understanding DMCA Takedown Abuse

While the DMCA takedown process is meant to protect copyright holders, it is sometimes misused for censorship or unfair competition. Some individuals or companies file false claims to suppress criticism, competitors, or even legitimate fair use. Examples of DMCA abuse include:

  • False copyright claims to silence negative reviews.
  • Mass takedown requests against competitors’ content.
  • Fraudulent claims to remove content that does not actually infringe copyright. To combat abuse, the DMCA provides a counter-notice process, allowing the alleged infringer to challenge the claim and restore the content.

How to File a DMCA Claim

If you discover that someone is using your copyrighted works on their website, you should immediately file a valid DMCA Claim. It's important that your DMCA complaint has all the necessary information and is written properly. Otherwise, it is invalid and a website can simply disregard your DMCA violation report.

The notice should have:

  • A physical or electronic signature of the person that owns the copyright or a person authorized to act on behalf of the owner.
  • Identification of the work or works that you are claiming infringement upon and a list of all the works.
  • The location and identification of the material that you want removed.
  • The address, telephone number, and email address where you can be contacted.
  • A statement that says you have a good faith belief that use of the material in the way it is being used has not been authorized by the copyright owner, its agent, or the law.
  • A statement that the information in your notice is correct and that you are either the owner of the copyright or that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Before you send a DMCA Takedown Notice, you need to make sure that:

1. You own the copyright or have the right to assert infringement of a copyright you license.

2. The supposed infringement is not covered by laws such as Fair Use or free speech.

3. The content is capable of being infringed online and is in a digital form such as:

  • Text: TXT, RTF, DOC, DOCx, PDF, PPT, PAGES
  • Images, pictures, and photos: BMP, EPS, SVG, JPG, JPEG, GIF, PNG, PSD, RAW, TIFF
  • Video: MPG, AVI, RM, MOV, Quicktime, Windows Media Player, RealPlayer
  • Music and audio: AIF, AU, MP3, MP4, MID, WAV
  • Images found on: Facebook, Tumblr, Pinterest, Flickr, Instagram

Once you have ensured that the copyright is actually being infringed upon and you have all the information you need to fill out your DMCA violation report correctly, there are precise steps that then need to be followed in order to correctly file a DMCA Takedown Notice.

1. Locate the Right Person

If you find your content on another website, it can be somewhat difficult to find out who the hosting company of that website is. If you are sending the notice to an Internet Service Provider (ISP), there's usually an email or form provided on their site.

You might need to hunt. There is no consistent location. Some popular locations are under Copyright or in their Terms and Conditions.

If the offending page is on a hosted a blog like LiveJournal, Wordpress, or Blogger, finding the right ISP is should be easy. 

If you can't find the DMCA contact on the website, you can search the U.S. Copyright Office list of DMCA agents. If that has not been updated recently, you can look at the website Who Is.

2. Look for Online DMCA Takedown Forms

Some websites have specific online forms for DMCA Takedown requests. It is best to use this form as your first point of contact since it is probably going to give you a quicker response. Most large websites, especially search engines, use forms to send issues to specific departments to deal with them.

3. Send Notice to DMCA Agent

If there is no online form provided, you have to send your notice to the designated DMCA agent in exactly the way that they request. Some agents do not want requests by email and instead prefer to have them faxed or sent by registered mail. 

Common Mistakes When Filing a DMCA Claim

Filing a DMCA takedown request requires accuracy and completeness to be valid. Some common mistakes that can lead to rejection or legal consequences include:

  1. Failing to identify ownership – If you cannot prove that you own the copyrighted material, the request may be denied.
  2. Not including all required information – Missing details, such as the specific URL of the infringing material, can lead to delays or rejection.
  3. Targeting content that qualifies as fair use – If the material is used under fair use, the takedown request can be invalid.
  4. Not considering jurisdiction – The DMCA applies mainly to U.S.-based hosting providers, and different countries have their own copyright laws.

Sample DMCA Takedown Notice

To Whom It May Concern,

The following information is to assert my rights and request a removal of allegedly infringing web content under the Digital Millennium Copyright Act (DMCA). I am contacting you as the agent for the site where the infringing content currently appears. This is a Notice of Infringement as authorized in §512(c) of the U.S. Copyright Law.

I am the copyright owner of the content, and the following information is true and accurate.

1. The original work, for which I own the copyright, appears, with my permission, at the following locations online:

  • List the URLs where your original and work appears and is authorized.

2. I have attached copies of my original copyright work to help with your evaluation and decision-making process.

3. The allegedly infringing work can be found in the following locations online:

  •  List the URLs where the infringing work is currently located

4. My contact details are as follows:

  • List all contact details including your address, preferred phone number, and email address.

5. The contact details of the alleged infringer are:

  • List any contact details you were able to find on the U.S. Copyright Office website or Who Is.

6. I have a good faith belief that the use of the above copyrighted works that appears on the website for which you are the  DMCA agent is not authorized by the copyright owner, its agent, or by law.

I declare, under penalty of perjury, that this notice is true and correct and that I am the copyright owner entitled to exclusive rights which I believe are being infringed.

Signed this ________ day of ___________, 20_____ in (Your City, State, Country).

(Your Signature or eSignature)

— — — — — — — — — — — — — — —

Responding to a DMCA Takedown Notice of Your Content

If your hosting service or other ISP receives a DMCA Takedown notice regarding your content, it usually responds by removing the material in question. It will do this without judging whether your content is actually infringing or not.

The DMCA notice-and-takedown procedures offer you protection from wrongful claims of copyright infringement. The DMCA requires service providers to tell you immediately when they remove any of your content due to a takedown notice. You then have the right to submit a counter-notice asking that the material be put back up.

There is no time limit for submitting a counter-notice, but you should reply as soon as you can. If you send a counter-notice, your service provider must then replace the disputed content unless the first complaining party sues you within fourteen business days of sending your counter-notice.

If you are not a U.S. resident, you need to consent to the jurisdiction of a U.S. court in your counter-notice. If you never go to the U.S. and you don't have any assets there, then there may not be a case because a plaintiff would not be able to enforce a judgment against you in the U.S.

If you can't show sufficient assets in the U.S., a plaintiff may be able to convince a court in your country to enforce a foreign judgment. These proceedings don't usually give you an opportunity to make your case. If you are a non-U.S. resident and you send a counter-notice, you give up a powerful argument that you would otherwise have, so it is not recommended for non-U.S. residents to send a counter-notice unless they are willing to fight a copyright infringement claim in the U.S. 

Before sending a counter-notice, be sure to carefully consider whether you are infringing on the other party's copyright. The counter-notice requires that you have a good faith belief that your material was wrongly taken down. If you send a counter-notice and the complaining party has a good case for infringement, you could trigger a lawsuit.

If you are not ready to stand up to a lawsuit for the use of the copyright owner's work, you should not send a counter-notice.

To be effective, your counter-notice needs to have:

  • Your physical or electronic signature
  • Your name, address, and contact number
  • An identification of the alleged infringed material and its location before it was taken down
  • A statement, under penalty of perjury, that the material was taken down by mistake or misidentification
  • Your consent to the jurisdiction of a federal court in the district that you live in (if you are in the U.S.), or to the jurisdiction of a federal court where your service provider is located (if you are not in the U.S.)
  • Your consent to accept service of process from the person who submitted the first DMCA takedown notice

A host then passes along the counter-notice to the person who filed the original notice. The works stay offline for 10 business days, after which, if no more action has been taken by the filer, the works can be restored.

The copyright holder can petition the court for an injunction to prevent the restoration of the original works, but if it is not obtained within the time allotted, the works are restored to the site.

How to File a DMCA Counter-Notice

If you receive a DMCA takedown notice and believe the claim is incorrect, you can file a DMCA counter-notice. The counter-notice should include:

  • Your contact details.
  • Identification of the removed content and its previous URL.
  • A statement, under penalty of perjury, that you believe the content was removed due to a mistake or misidentification.
  • A declaration of consent to the jurisdiction of U.S. courts (if applicable).
  • A request to reinstate the removed content. After filing the counter-notice, the service provider must notify the original complainant. If the complainant does not take legal action within 14 business days, the content may be restored.

How to Protect Against Copyright Claims

Section 512 of the DMCA has provisions for online service providers called "safe harbors." Safe harbor provisions can shield you from liability for any copyright infringements made by your site's users, as long as you have an effective "notice-and-takedown" procedure.

If you publish the creative work of others online without getting their permission, you could be exposing yourself to legal liability. Fortunately, you can protect yourself from copyright infringement claims as long as you set up effective "notice-and-takedown" procedures. You need to make sure that if you receive notices of infringement, you act quickly to remove the content and ensure you never knowingly publish copyright materials.

Another safe-harbor provision states that an online service provider will not be held liable for money damages "for infringement of copyright by reason of the provider referring or linking users to an online location containing infringing material or infringing activity, by using information location tools, including a directory, index, reference, pointer, or hypertext link."

This basically means that if you link to websites that contain infringed copyright, but you didn't know that they were infringing, then you are not liable for copyright infringement.

Another safe harbor provision covers material posted to a blog or website by a user in your comment section or on a forum thread. This could be a photograph, film clip, or audio file.

This safe-harbor provision states that, as the administrator of a website, you are not liable for money damages for infringing content posted "at the direction of a user," as long as you:

  • Do not have actual knowledge that there is infringing content on your servers.
  • Do not receive any financial benefit from the infringing activity if you have the ability to control such activity.
  • You act quickly to remove the infringing material once you become aware that the material is infringing copyright.

Preventing Future DMCA Claims

Website owners and content creators can take proactive steps to reduce the risk of copyright infringement claims:

  1. Use licensed content – Always obtain permission or purchase proper licenses for images, music, or videos.
  2. Understand fair use – Some use cases (e.g., criticism, commentary, or parody) may fall under fair use but still risk takedown claims.
  3. Create original content – Ensure all text, images, and videos you publish are your own or properly sourced.
  4. Provide proper attributions – Some content requires crediting the creator, even when legally permissible to use.
  5. Monitor your content – Set up alerts for potential copyright issues related to your website.

Requirements for Safe Harbor Protection

1. Designate a Copyright Agent to Receive Your DMCA Takedown Notices

You have to designate an agent. You can be the agent or you can choose someone you trust. This is an official procedure, and you need to file an Interim Designation with the United States Copyright Office and pay a $105 filing fee.

2. Communicate Your Copyright Infringement Policy to Users

In order to qualify for safe harbor protections, you need to publish a statement on your website to notify all site users of your DMCA agent's contact information as well as your policies about copyright infringement.

The notice can be a part of the website's Terms and Condition or elsewhere, but it has to be prominently displayed. It only has to be a short statement that explains how you respond to notices of copyright infringement. If you have a specific way that you want DMCA claims to be formatted and how you want to receive them, you should be clear about it in this statement. 

Not All Cease-and-Desist Letters Are DMCA Takedown Notices

The DMCA safe-harbor provisions only apply to copyright infringement. They do not apply to trademark infringement claims, defamation claims, or claims for uses of trade secrets.

This means that you cannot shield yourself from liability by simply removing those other types of content once you've published them on the internet. 

Websites get cease-and-desist letters based on non-copyright claims quite often. Do not assume that every letter you get is a DMCA takedown notice. Be sure to read the letter carefully and think about your next steps based on the information being requested. 

Frequently Asked Questions:

  1. What happens if someone files a false DMCA claim against me?
    If someone files a fraudulent DMCA claim, you can submit a counter-notice. If the claimant does not pursue legal action within 14 business days, your content can be reinstated. You may also have grounds to take legal action against the false filer.
  2. Can I file a DMCA takedown notice if my content is being shared on social media?
    Yes, social media platforms have designated DMCA agents and policies for handling copyright claims. You can submit a DMCA request directly through their reporting systems.
  3. Is it illegal to file a false DMCA claim?
    Yes. Submitting a fraudulent DMCA takedown request can lead to legal penalties, including perjury charges, lawsuits, and potential financial damages.
  4. How long does a DMCA takedown process take?
    The timeframe varies, but most service providers act within a few days of receiving a valid request. If a counter-notice is filed, the complainant must initiate legal action within 14 business days, or the content may be restored.
  5. Does the DMCA apply to websites outside the U.S.?
    The DMCA is a U.S. law, but many international websites comply with DMCA requests if they host content on U.S.-based servers or work with companies under U.S. jurisdiction.

If you need help with DMCA claims, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard and Yale Law and average 14 years of legal experience, including work with or for companies like Google, Menlo Ventures, and Airbnb.