Are Your Copyright Infringement Takedown Notices Going Nowhere? Online Companies May Have Misled You Into Submitting a Non-Compliant DMCA Takedown Notice.

A DMCA Takedown notice is a powerful tool in a copyright owner’s arsenal to remove infringing content from popular websites. One may think that a complaint to such a website would serve the same purpose. However, an investigation by Harness IP reveals that many companies provide instructions to copyright owners that are very close to legitimate DMCA Takedown Notices…but seem to mislead those copyright owners into make one or more technical errors. As such, these complaints may lead nowhere, and the website companies have an argument that a proper DMCA Takedown Notice was not submitted. This article explores examples of how numerous online companies seem to mislead copyright owners to submit non-compliant DMCA takedown notices to give those companies a defense against copyright infringement if they are ever sued.

Copyright owners frequently find infringing material online. The work is likely to be posted by a user on a website, including social media websites like YouTube, Instagram, or TikTok, or on ecommerce sites like Amazon, Zazzle or Temu. In legal parlance, your copyrighted work may be “Information Residing on Systems or Networks At Direction of Users.” The Digital Millenium Copyright Act (“DMCA”), passed in 1998, provides some protection for these websites from liability for copyright infringement due to works posted by their users. This protection is often called the “Safe Harbor Provision.” In short, they are protected from lawsuits from copyright owners for content on their websites posted by users.

The DMCA sought, however, to balance the interests of copyright owners with the interests of the companies running these websites. To remain under the protection of this Safe Harbor Provision, online service providers like YouTube or Instagram must “respond expeditiously to remove” material claimed to be infringing upon receiving a notification meeting certain requirements. This notification is commonly called a “DMCA Takedown.”

What is a DMCA Takedown?

A DMCA Takedown requires certain information, and this notice must be provided to the company hosting the copyrighted material’s “Designated Agent.” For a company to benefit from the Safe Harbor Provision, it must designate an agent with the U.S. Copyright office. The U.S. Copyright Office provides a directory[1] showing the Designated Agents.

Many online service providers provide webpages and forms with information on what to do if you find your copyrighted work on their website. These sites may appear to be helpful, even providing simple forms that seem to ask for the information required in a DMCA Takedown. However, it may not be in the company’s interest to assist copyright owners in providing an easy method to potentially remove the company from the Safe Harbor Provision. An investigation by Harness IP has revealed that the information and forms these companies provide on their websites may be misleading. By only submitting the information set forth on these company’s websites may not be a compliant DMCA Takedown Notice. As such, if you only follow their instructions, and do not confirm that the information provided pursuant to those instructions complies with the DMCA, those companies are not removed from the Safe Harbor Provision.

Following a Company’s Copyright Infringement Reporting Policy May Not Be a Legitimate DMCA Takedown Notice

More specifically, perhaps seeking to remain within the Safe Harbor Provision, many companies direct copyright owners to make complaints that are not statutory-compliant DMCA Takedown notices.

For example, Alibaba and AliExpress provide an Intellectual Property Portal requiring that the copyright owner “register” the property and wait for approval before submitting any copyright complaints. Importantly, however, the DMCA does not require that the service provider “approve” your work before you issue a DMCA Takedown Notice. A copyright complaint in the Intellectual Property Portal appears to initiate a back and forth between the copyright owner and the infringer, and not a takedown of the infringing material. Further, the Intellectual Property Portal for these sites contains no mention of its DMCA agent, which can only be found on Copyright.gov website, mentioned above. As such, since the authorized agent is not being informed of the dispute, a proper DMCA Takedown Notice cannot be submitted in this portal.

Zazzle, a popular online marketplace, provides a Copyright Policy[2] in its help center. It states that its copyright agent can be reached by mail to an address in Reno, Nevada, and provides a phone, fax, and email address where they can be reached. The agent Zazzle designated with the Copyright Office is in Menlo Park, California.[3] Importantly, however, the agent listed on the Zazzle website has different contact information than that provided to the Copyright Office. As such, again, if a DMCA Takedown Notice is sent to the email identified by Zazzle, it is not compliant and does not remove Zazzle from the DMCA Safe Harbor.

Similarly, Apple’s Claims of Infringement[4] page states that the email address of its copyright agent is “copyrightnotices@apple.com.” Like Zazzle, though, this is a different email address than that listed on the Copyright Office listing of DMCA agents (instead, the email address at the Copyright Office is copyrightagent@apple.com). Again, Apple would certainly argue that sending the DMCA Takedown Notice to the wrong email address means that the Notice is non-compliant.

Apple’s webpage further directs copyright owners to use different forms if the complaint concerns content on Apple’s services, such as Apple Music and the iTunes Store,[5] App Store,[6] and Apple Books.[7] But these forms do not ask for the information required for a DMCA Takedown Notice. Nor can we determine if these forms go to Apple’s Designated Agent. Apple’s “Claims of Infringement” page further informs copyright owners that they have an option to send a DMCA Takedown notice but implies that filling out their form is faster.

Other service providers, like Google and Instagram, provide forms as well. While they may appear to be convenient ways of submitting a DMCA Takedown Request, we cannot determine whether the information in the forms goes to the right designated agent.

Conclusion

A DMCA Takedown notice is a powerful tool…if done correctly. As the examples above demonstrate, one cannot assume that online service providers want to help you use this tool correctly. Thus, copyright owners need to carefully comply with the DMCA requirements for Takedown Notices to make sure they are not misled into submitting technically deficient Takedown Notices. Such a mistaken path will allow the online merchant to maintain its position within the safety of the DMCA Safe Harbor Provision.

 

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[1] https://dmca.copyright.gov/dmca/search.html

[2] https://help.zazzle.com/hc/en-us/articles/220337367-Zazzle-Copyright-Policy

[3] https://dmca.copyright.gov/dmca/publish/history.html?search=Zazzle&id=95353a8db48e5164b31d436930db0859

[4] https://www.apple.com/legal/contact/copyright-infringement.html

[5] https://www.apple.com/legal/intellectual-property/dispute-forms/music/music-dispute.html

[6] https://www.apple.com/legal/intellectual-property/dispute-forms/app-store/app-store-dispute.html

[7] https://www.apple.com/legal/intellectual-property/dispute-forms/books/books-dispute.html