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The right way to protect a copyright under the DMCA

In one of our recent posts, we outlined the four situations under which online service providers can avoid monetary liability if some user infringes on another's copyrighted material. Among these so-called safe harbor provisions of the Digital Millennium Copyright Act (DMCA) is the takedown.

If the provider swiftly acts to remove infringing material after being notified, that gives the provider a shield against having to pay financial damages to the copyright holder. As the post also highlighted, though, certain providers – those that facilitate the storage of materials on their systems or direct users to information through search engines or directories – must register a designated takedown agent with the government, and make the information available to the public. But that is not all.

Elements of proper notification

Proper prosecution of intellectual property rights in the online world depends on full compliance with DMCA provisions. Here are some of the rules that the law requires copyright holders to follow for a takedown notice to be effective. Besides informing the designated agent in writing, each notice must:

  • Contain the signature of the copyright holder or his or her authorized agent. The signature can be physical or electronic in nature.
  • Clearly identify any material allegedly infringed upon. If one notice reports multiple infringements, all the works must be duly listed.
  • Include information necessary so the provider can easily locate the material subject to action.
  • State clearly that the complainant believes in good faith that the use in question is unauthorized by the copyright owner or the law.
  • Swear under threat of perjury that the information in the notice is accurate and that the complainant has authority to exercise the takedown action.

Whether the issue is enforcing copyrights or managing data integrity when infringement claims are brought, the devil is in the details and working with a skilled IP attorney delivers confidence that details don't get overlooked.

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