The Digital Millennium Copyright Act (DMCA) provides the main mechanism for how a Copyright Holder can take down online content and materials that infringe upon their copyright.

The Basics of the DMCA

Specifically, the DMCA provides a safe harbor in connection with third-party uploaded materials on their site that infringes the copyright of others by giving them immunity so long as they comply with the requirements of the DMCA. Namely, they must respond expeditiously to takedown notices from Copyright Holders and take down or disable access to any infringing material or content that they become aware of. A Service Provider’s failure to comply with the DMCA will result in them losing their safe harbor and may subject them to legal claims brought by Copyright Holders. Read on to learn how the DMCA process works, and check our blog post here to learn how to report copyright infringement.

DMCA Takedown Notices

The DMCA process benefits copyright holders by offering a way to remove infringing content without pursuing lengthy or costly litigation. Many Service Providers provide online copyright forms to simplify this process. If a form is unavailable, the notice should be sent to the Service Provider’s designated agent or legal team. For more information on how to send a DMCA takedown notice, check our blog post here.

DMCA Counter Notices

Once the Service Provider takes down the allegedly infringing material, the original uploader of that material has an opportunity to contest the takedown through a DMCA counter notice if they think that their material has been mistakenly or maliciously taken down. Both takedown notices and counter notices require good faith. Submitting false or misleading information may result in penalties for perjury. For more information on how to send a DMCA counter notice, check our blog post here.

What Type of Materials Does the DMCA Apply To?

The DMCA does not apply universally. The DMCA specifically applies to Service Providers subject to United States copyright law and only covers copyrighted material. Copyright protects original works of authorship as soon as an author fixes the work in a tangible form of expression. This includes a diverse number of items from books, blog posts, videos, illustrations, song compositions, and even some code. 

But there are scenarios where the DMCA may not apply. Here are just a few examples:

1. Foreign Service Providers. The DMCA governs United States based services. Providers abroad may still fall under the DMCA if they operate in the United States, but otherwise, copyright holders must follow that country’s takedown process.
2. Trademarks. The DMCA is silent on trademark infringement. Some platforms voluntarily provide trademark complaint processes, and courts have considered applying DMCA-like frameworks in certain cases. If no option exists, trademark holders must pursue remedies directly against the infringer (e.g., via demand letter or lawsuit).
3. Publicity Rights. The DMCA generally does not cover rights of publicity (e.g., use of someone’s name, image, or likeness). For example, a person may appear in a photograph or video they do not own. The copyright for such materials rests with the person or entity who took the photography or shot the video. Similar to trademarks, while some platforms provide mechanisms for publicity complaints, otherwise individuals must pursue claims under applicable state law.
4. Fair Use. As mentioned above, both takedown notices and counter notices require good faith. Good faith doesn’t just mean that a Copyright Holder must make sure they own the copyright before sending a takedown notice. It also means that they have to consider whether the potentially infringing material is likely to fall under fair use. For example, journalism or parody which may reference or use copyrighted material, is commonly protected under fair use.

Conclusion

The DMCA Takedown Process can seem like an easy and straightforward process that Copyright Holders can use to take down potentially infringing materials and that Service Providers can rely on for protection from liability. However, Copyright Holders must be careful that they meet all of the requirements of a valid DMCA takedown notice and that they do not abuse the process. Overly zealous use of the process can have both legal and public relations ramifications. Similarly, Service Providers must be careful that they provide a fair and compliant process for both copyright holders and users, or they risk losing their DMCA safe harbor protections and damaging trust with their communities.

From takedown notices to counter-notices, the DMCA can be confusing. Having a clear strategy protects both your rights and your reputation. Odin Law & Media regularly helps developers navigate this process, from protecting their own work to responding when their content is challenged.