07-14-2010, 01:31 PM
No idea where else to put this, so please, bare with me 
Many people around the United States have heard of the Digital Millennium Copyright Act (DMCA). If you have any interest in developing a website, or starting a web hosting business, and you're from the US, I'd advise you to read on, as well as do your own research. Found a website that is an exact copy of yours? Read on as well. Just idle curiosity? Also, read on you must. Main reason I made this is because I had to send 3 DMCA's last week
What will be Covered
1. What exactly is the DMCA?
2. Who does it apply to?
3. Guidelines
4. Example DMCA Notice
5. My recommendations
7. How to find contact information
Section 1. What exactly is the DMCA?
The DMCA is the Digital Millennium Copyright Act of 1998. It covers any information that is copyrighted (Explanation of what copyright is, what is copyrighted, etc. is located at the end of this post). It allows a way to get someone to take down your intellectual property without having to drag them through court.
Section 2. Who does it apply to?
Ahhh yes, the age old question (well, at least since 1998). Who can I send a DMCA Take Down Notice to? And who can it apply to? You may send a DMCA Notice to any entity located in the United States. This includes hosting providers as well as the actual person infringing on your copyright. Found someone that's located offshore? Want to send a DMCA notice to their host? They'll just tell you to go pound sand. Remember, hosts have a limited liability when it comes to DMCA notices. Once they have received notification they will generally contact you. Most hosts are scared of being sued so expect to either be forced to take the item down, or find another host, even if you are not actually infringing on anyone's copyright. Hosts just don't want to deal with the hassle.
Section 3. Guidelines
Most company's will have a section on their website somewhere with specific guidelines on how to go about the DMCA Notice. These are generally within the law (however some require asinine things that are outside the law). Generally, you would want to include the exact infringing item(s), a reasonable sufficient way to contact you, uncluding full name, telephone number, address, and email address, the DMCA notice must be in writing, and can be faxed or sent through the post, email is not sufficient, you must be the legal copyright owner, and you must provide proof of copyright ownership, include the line "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." and sign the paper. Beware, it is a crime to file a false DMCA notice, and by including that line you are committing perjury.
Section 4. Example DMCA Notice
That was a VERY basic DMCA Notice, however it can serve as an EXAMPLE for you to go off of, remember, the last two paragraphs are mandatory. I would personally contact an attorney before sending it and have them draft it for you, as well as ensure that you have legal grounds, more on that later.
Section 5. My Recommendations
Personally I'd recommend you to seek legal counsel before sending a DMCA Notice. Why? Because you can be held liable for any damages and legal fees for a falsely submitted claim, this includes even a mistake. If you insist on doing it yourself, I recommend you read up on copyright law at www.copyright.gov as well as some patent and trademark law at www.uspto.gov.
I'd also recommend that you make any reasonable attempts to contact the actual infringer first. Odds are they don't know jack about copyright and a DMCA notice to them/a simple email to webmaster@site.com will get you the results you need.
Some Copyright FAQ's
Decided to throw this in at the last minute as there are probably loads of people that don't know a thing about copyright law.
Q. Do I have to register something to have it copyrighted?
A. No. A work is automatically protected by copyright law the moment it is finished.
Q: How will I prove I'm the copyright owner if I don't have a registered copyright?
A: That is the million dollar question. Truth is, most courts won't accept anything but a registered copyright as proof. Good luck with that one.
Q: What is protected by copyright?
A: Any creative work. Including, but not limited to, code (programming/web design), music, photographs, drawings, images created in photoshop, and songs.
Q: Can I use something from a government website?
A: Generally anything on a government website is covered under the fair use clause.
Q: What is the fair use clause?
A: It's an exemption to normal copyright laws. Things like using a small portion of an article to illustrate a point by you are covered here.
Q: I read uspto.gov and copyright.gov, and am still confused. What should I do?
A: Contact an attorney.
Q: I think I know everything about copyright law. What should I do?
A: Contact an attorney.
DMCA FAQ's
Q. I don't need to take this seriously.
A. Yes you do. It's federal law and can net you some harsh fines and bills.
Q. I want to sue the host, can I?
A. Yes and no. You must provide a reasonable amount of time to take action. You can sue anyone though, but you won't win if you don't provide the reasonable amount of time. Service providers have severely limited liability when it comes to DMCa's/copyright infringement of their clients until they are notified and that reasonable amount of time passes.
Q. Someone filed a DMCA against me, what should I do?
A: 2 things. Take down the content. Or get yourself an attorney and file a counter claim.
Q: What is a counter claim?
A: It's a claim that you make countering the originator's DMCA. I'd recommend you consult an attorney because you'll probably be looking at a lawsuit coming up.
I'll let you do the research on counterclaims, I'm not going to do everything for you
Section 7. How to Find Contact Information
As Omni suggested, a way to find the Administrator/webmaster contact information should be in here, I didn't even think about it sorry guys.
There are many ways to do this. www.whois.com and www.domaintools.com are great ways. I'll use SF as an example.
1. Go to www.whois.com
2. Click whois lookup
3. Put the website name in there and the verification code.
4. As you see with the results, there is an Administrative Contact. That is the address you are looking for. If it is whois protected they will forward the information to the site owner. You can also get a court order to obtain the information directly.
5. Now look at the nameservers. They will be ns#.something.com/net etc.
6. Now go to www.dnsstuff.net
7. Trace route the nameservers. Now go to whois.com again and whois lookup the IP, it should show you the host.
Remember. This is not legal advice, just a little short explanation of the DMCA and how it works, and what you have to do. I am not responsible for any action that you decide to take, or not to take, because of this post. This is just based on my own research, consultation with my attorney, and a few years experience in the hosting industry ;)
Many people around the United States have heard of the Digital Millennium Copyright Act (DMCA). If you have any interest in developing a website, or starting a web hosting business, and you're from the US, I'd advise you to read on, as well as do your own research. Found a website that is an exact copy of yours? Read on as well. Just idle curiosity? Also, read on you must. Main reason I made this is because I had to send 3 DMCA's last week
What will be Covered
1. What exactly is the DMCA?
2. Who does it apply to?
3. Guidelines
4. Example DMCA Notice
5. My recommendations
7. How to find contact information
Section 1. What exactly is the DMCA?
The DMCA is the Digital Millennium Copyright Act of 1998. It covers any information that is copyrighted (Explanation of what copyright is, what is copyrighted, etc. is located at the end of this post). It allows a way to get someone to take down your intellectual property without having to drag them through court.
Section 2. Who does it apply to?
Ahhh yes, the age old question (well, at least since 1998). Who can I send a DMCA Take Down Notice to? And who can it apply to? You may send a DMCA Notice to any entity located in the United States. This includes hosting providers as well as the actual person infringing on your copyright. Found someone that's located offshore? Want to send a DMCA notice to their host? They'll just tell you to go pound sand. Remember, hosts have a limited liability when it comes to DMCA notices. Once they have received notification they will generally contact you. Most hosts are scared of being sued so expect to either be forced to take the item down, or find another host, even if you are not actually infringing on anyone's copyright. Hosts just don't want to deal with the hassle.
Section 3. Guidelines
Most company's will have a section on their website somewhere with specific guidelines on how to go about the DMCA Notice. These are generally within the law (however some require asinine things that are outside the law). Generally, you would want to include the exact infringing item(s), a reasonable sufficient way to contact you, uncluding full name, telephone number, address, and email address, the DMCA notice must be in writing, and can be faxed or sent through the post, email is not sufficient, you must be the legal copyright owner, and you must provide proof of copyright ownership, include the line "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." and sign the paper. Beware, it is a crime to file a false DMCA notice, and by including that line you are committing perjury.
Section 4. Example DMCA Notice
Code:
date Your information
Entity notice is sent to
attn: DMCA Point of Contact
It has come to my attention that the website www.site.com is using my copyrighted work. The infringing material is located at www.site.com/page.html/image.jpg. The original work is located at www.mystuff.com/mypage.hml/myimage.jpg.
I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law
I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
/sign/
your name
title (if you have one)Section 5. My Recommendations
Personally I'd recommend you to seek legal counsel before sending a DMCA Notice. Why? Because you can be held liable for any damages and legal fees for a falsely submitted claim, this includes even a mistake. If you insist on doing it yourself, I recommend you read up on copyright law at www.copyright.gov as well as some patent and trademark law at www.uspto.gov.
I'd also recommend that you make any reasonable attempts to contact the actual infringer first. Odds are they don't know jack about copyright and a DMCA notice to them/a simple email to webmaster@site.com will get you the results you need.
Some Copyright FAQ's
Decided to throw this in at the last minute as there are probably loads of people that don't know a thing about copyright law.
Q. Do I have to register something to have it copyrighted?
A. No. A work is automatically protected by copyright law the moment it is finished.
Q: How will I prove I'm the copyright owner if I don't have a registered copyright?
A: That is the million dollar question. Truth is, most courts won't accept anything but a registered copyright as proof. Good luck with that one.
Q: What is protected by copyright?
A: Any creative work. Including, but not limited to, code (programming/web design), music, photographs, drawings, images created in photoshop, and songs.
Q: Can I use something from a government website?
A: Generally anything on a government website is covered under the fair use clause.
Q: What is the fair use clause?
A: It's an exemption to normal copyright laws. Things like using a small portion of an article to illustrate a point by you are covered here.
Q: I read uspto.gov and copyright.gov, and am still confused. What should I do?
A: Contact an attorney.
Q: I think I know everything about copyright law. What should I do?
A: Contact an attorney.
DMCA FAQ's
Q. I don't need to take this seriously.
A. Yes you do. It's federal law and can net you some harsh fines and bills.
Q. I want to sue the host, can I?
A. Yes and no. You must provide a reasonable amount of time to take action. You can sue anyone though, but you won't win if you don't provide the reasonable amount of time. Service providers have severely limited liability when it comes to DMCa's/copyright infringement of their clients until they are notified and that reasonable amount of time passes.
Q. Someone filed a DMCA against me, what should I do?
A: 2 things. Take down the content. Or get yourself an attorney and file a counter claim.
Q: What is a counter claim?
A: It's a claim that you make countering the originator's DMCA. I'd recommend you consult an attorney because you'll probably be looking at a lawsuit coming up.
I'll let you do the research on counterclaims, I'm not going to do everything for you
Section 7. How to Find Contact Information
As Omni suggested, a way to find the Administrator/webmaster contact information should be in here, I didn't even think about it sorry guys.
There are many ways to do this. www.whois.com and www.domaintools.com are great ways. I'll use SF as an example.
1. Go to www.whois.com
2. Click whois lookup
3. Put the website name in there and the verification code.
4. As you see with the results, there is an Administrative Contact. That is the address you are looking for. If it is whois protected they will forward the information to the site owner. You can also get a court order to obtain the information directly.
5. Now look at the nameservers. They will be ns#.something.com/net etc.
6. Now go to www.dnsstuff.net
7. Trace route the nameservers. Now go to whois.com again and whois lookup the IP, it should show you the host.
Remember. This is not legal advice, just a little short explanation of the DMCA and how it works, and what you have to do. I am not responsible for any action that you decide to take, or not to take, because of this post. This is just based on my own research, consultation with my attorney, and a few years experience in the hosting industry ;)