Fake DMCA Takedown Notices and How to Spot Them
Are you thinking of ignoring that email alleging copyright infringement? If you’re a U.S. website owner serving as a portal for user-posted content, responding in a timely fashion to takedown notices is a possibly critical management task that you can’t afford to overlook.
Whether it’s words, images, audio, or video, keeping unauthorized copyrighted material up could not only jeopardize your reputation as a website owner, but open you up to serious legal trouble. That’s because failure to respond to legitimate takedown notices is one of the many ways you can negate your claim to the “safe harbor” (i.e., freedom from liability) granted you under the Digital Millennium Copyright Act.
So, it’s pretty important.
But here’s the thing: Sometimes it’s perfectly okay to just … ignore them. In our previous entry, we have talked about what DMCA entails. In this entry, we’ll go in depth about fake DMCA notices and whether it is possible to ignore them.
When to Ignore a Takedown Notice
There are two basic scenarios under which you can safely ignore a takedown notice: fair use of copyrighted material, and when the takedown notice is filed improperly.
Under the terms of fair use, it is perfectly okay to use snippets of copyrighted material for commentary, criticism, news reporting, and even parody (like a funny video remix). United States law offers no quantifiable parameters for fair use. For example, a film critic blog isn’t restricted from using, say, only five minutes of a 2-hour film.
Instead, the law mostly focuses on whether or not the fair use in question is “transformative.” Does the use of the copyrighted material add some new form of expression to the content?
Okay, so it’s a bit more complicated than that– and really a topic worth a post of its very own. But for the purposes of the remainder of this one, let’s focus on tips to recognize legitimate takedown notices, and dismiss the “bad” or “fake” ones.
Filing a Takedown Notice
In order to understand how to recognize a bad takedown notice, it helps to understand what’s required in a good one, and how one goes about the filing process.
In almost all cases, notices are received in the form of an email, either self-filed, or using a third-party service. These emails will be directed towards your registered “DMCA Agent,” whose contact information you are required to list on your website, and file with the U.S. Copyright Office.
For context, here’s a sample template for a proper takedown notice:
DMCA takedown notices that you receive will probably worded slightly different. That’s okay. However, within the above template are several components required by the DMCA.
Should any of these components not be present, you’re within your rights to not act on it. In fact, you shouldn’t act on it, because it lacks all of the legally required information.
Let’s take a look at each requirement.
A Physical or Electronic Signature from the Copyright Owner
Or an authorized representative of the copyright owner. One or the other must be present. More over, the filer must identify themselves as such.
In our sample notice above, the signature comes at the end of the email, and can be either in the form of a physically signed signature, or just a typed named legal name.
Identification as the copyright owner or authorized representative comes at the beginning: “I am the exclusive rights holder,” or “I am the duly authorized representative of the exclusive rights holder.”
Identification of the Infringed Copyrighted Work
The filer of the takedown notice must tell you specifically what work has been infringed upon. This can be be in the form of a title (such a film or book name), or a URL link pointing to a web location where the copyrighted work is being lawfully displayed.
Often times, the email will also come with attachments of the infringed work to assist in takedown, but this isn’t required.
In our sample template, this information is supplied in the first sentence:
“I am [the exclusive rights holder] the duly authorized representative of the exclusive rights holder] for [title of copyrighted material being infringed, and if possible, additional identifying information such as ISBs, publication dates, etc — or, if the material is a web page, the URL].”
Note that when a work title is supplied, rather than a URL, it is customary to provide additional identification information (like a publication date). Just like including attachments, this information is more to assist you, the online service provider, in quickly identifying the copyrighted work. It is NOT required.
Identification of the Allegedly Infringing Material
The takedown notice filer has identified what the infringed work is. But what about the infringing work? That’s the next requirement.
This is usually done by including a URL pointing to the infringing material. Of course, as the online service provider hosting that material, it should be a URL pointing to a website page that you maintain. Otherwise, it isn’t your problem.
In the event that your website includes several infringements of the same work, the notice may include several URLs. This is fine. A filer does not need to submit separate takedown notices for each and every infringement.
In our sample template, these are listed in first numbered bullet point:
These exclusive rights are being violated by the material available upon your site at the following URL(s): [URLs of infringing material];
Often times, as with the infringed work, an email attachment with a copy of the infringing material is provided to assist in your identification and takedown process. But as in the first case, this step is not required.
Information Reasonably Sufficient to Contact the Complaining Party
In other words, the takedown notice filer must provide a way for you to contact them.
Our sample template includes contact information in the fourth numbered bullet point:
I may be contacted by the following methods (include all): [physical address, telephone number, and email address];
While the template indicates to include a physical address, telephone number, and email address, that isn’t necessary. All that’s really required to legitimize the notice is an email address.
A “Good Faith” Statement
The filer must directly state that they have a “good faith belief” that the material they’re complaining about was not actually authorized by the copyright owner, or agents of the copyright owner:
I have a good faith belief that the use of this material in such a fashion is not authorized by the copyright holder, the copyright holder’s agent, or applicable law;
In a nutshell, the filer must state they’re being honest to the best of their knowledge. This becomes especially important when you take the final takedown notice requirement into account…
A Statement of Accuracy Under the Penalty of Perjury
This includes the assertion that the filer is either the actual copyright holder, or a representative of the copyright holder. What this requirement does is force the filer to agree to legal ramifications if the required information can be proven to have been filed in bad faith.
Such ramifications open the filer up to federal prosecution in the United States, not to mention possibly being sued by the actual copyright holder, the person whom the notice was filed against, and even by you, the service provider.
In “fake” takedown notices, this is the element that you’ll most often find is missing. That makes sense. It would be foolish for someone who is knowingly filing a fake takedown notice to so blatantly open the door to legal trouble.
Here is the wording used in our sample template:
Under the penalty of perjury in a United States court of law, I certify that the information contained in this notification is accurate, and that I am authorized to act on behalf of the holder of the exclusive rights to the material in question;
The Scourge of Bad DMCA Takedown Notices
The unfortunate truth is, that even with the possibility of perjury charges, it is exceedingly rare for somebody who knowingly files an improper and malicious takedown notice to face legal consequences in the United States. That’s because there’s very little oversight of what has come to be termed, “copyfraud.”
The result: the filing of bad DMCA takedown notices has run amuck.
A detailed study completed by U.C. Berkeley shows that approximately 40% of notices are bogus. More specifically, 29% fail to meet the standards of the DMCA, which includes not meeting all of the filing requirements noted above. The other 10% meet the requirements, but are “clearly false” or mistakes.
While there may be any number of reasons someone might knowingly file a fake takedown notice, such as trying to hurt a competitor, more often than not it’s a deliberate disregard for the terms of fair use.
This is common tactic of content owners, whether it be individuals or companies, who want clear the Internet of negative publicity. For example, a film company that doesn’t like a review of one of their movies might file a DMCA notice if that review includes a clip of film footage.
What’s Being Done About Bad Takedown Notices?
A few things, but maybe not enough.
A 2015 U.S. court ruling (Lenz v. Universal Music Corp.), decided that when filing a takedown notice, as part of the “good faith” component, the filer must consider whether or not the alleged infringing material is covered under fair use.
This is a step in the right direction. But the fact is that it’s difficult to legally prove that someone is acting in bad faith. Even if it was easy, the penalty for copyfraud is only $2,500 dollars. That does little to deter filers with big pockets, such as the music or film industries.
Google, in response to the overwhelming number of bad DMCA filings, started publishing “transparency” reports back in 2012. These reports not only indicate how many DMCA notices they receive and who they’re filed against, but who is filing them. They also publish data indicating what percentage of a filer’s DMCA notices are not acted upon due to being illegitimate.
Their numbers for 2015? They were asked to remove 560,000,000 links from their search engine results. While the hope was their reports would curb the filings, the 2015 results actually mark a 60% increase from the year before. And it’s only getting worse: as of this writing, there has been 86,547,331 filings over the past month alone.
So, while the problem of bad DMCA takedown notices is one that is well documented, it’s not one that’s going away quickly.
Thankfully, it’s reasonably easy for you, as a content provider or portal, to identify improperly filed takedown notices based on the criteria outlined above. Following the letter of the law will not only protect you from liability, but ensure that you’re not needlessly removing legitimate content for your website, and possibly damaging your own reputation in the process.
And remember, the Digital Millennium Copyright Act is a U.S. law. If you’re not a U.S. citizen or business owner, and aren’t using a U.S. hosting service for your site, you’re free ignore even legitimate DMCA takedown notices, if you so choose.