Last month, the US Department of Commerce released DMCA Notice-and-Takedown Processes: List of Good, Bad and Situational Practices (DMCA Best Practices). The DMCA Best Practices, developed by stakeholders including rights holders and individual creators, service providers, and consumer and public interest representatives, contains a set of agreed on practices aimed at improving the operation of the notice and takedown system under the Digital Millennium Copyright Act (DMCA).

The DMCA aims to strike a balance between protecting online service providers from liability for the infringing acts of their users or other third parties and protecting the interests of copyright owners. It includes safe harbor provisions allowing a service provider that meets the requirements to avoid monetary damages and limit injunctive relief for certain types of copyright infringement, including infringement based on:

One of the safe harbor requirements is taking down allegedly infringing content on receipt of a substantially compliant takedown notice sent by a copyright owner. This update discusses certain key considerations for rights holders when drafting a DMCA takedown notice. DMCA takedown notice senders, service providers and counter-notice senders should also review the DMCA Best Practices and aim to comply with its recommendations.

The DMCA sets out detailed requirements for the copyright owner's takedown notice and the service provider's obligations on receiving the notice. A substantially compliant notice:

To be effective, a takedown notice must be:

It also must include substantially the following:

(17 U.S.C. § 512(c)(3)(A)(i)-(vi); (d)(3).)

A notice sent under the system caching safe harbor must also include a statement confirming that the material has been taken down or that a court has ordered that it be taken down from the originating website (17 U.S.C. § 512(b)(2)(E)).

Copyright owners should also be mindful that the DMCA expressly provides for liability of a party that "knowingly materially misrepresents…that material or activity is infringing" (17 U.S.C. § 512(f)). Therefore, before sending a DMCA complaint, the sender should address any doubts it may have about the existence, validity or ownership of copyrights in the posted content. To satisfy its obligation of good faith, the copyright owner also must consider whether the use, though unauthorized by the copyright owner, falls within a statutory exception, for example, fair use.

For a model takedown notice that can be used as a starting point for drafting a DMCA compliant notice, see Standard Document, DMCA Complaint (Takedown Notice).

To be eligible for the safe harbor, among other things, a service provider must make its designated agent's name and contact information available through its service, including in a publicly accessible location on its website. This is typically done in either a section of its website terms of use or a separate website policy. The DMCA Best Practices also recommends that service providers:

For a sample website policy, see Standard Document, Website Copyright/DMCA Policy.

Some service providers also provide takedown notice forms on their websites that copyright owners can use. By providing a takedown notice form, the service provider seeks to avoid the administrative effort and expense that would otherwise result from having to process many notices in many formats.

Copyright owners and their legal counsel intending to send a DMCA takedown notice should also be aware that the recipient may choose to make the notice publicly available. For example, the Chilling Effects Clearinghouse maintains an online database that includes DMCA complaints, cease and desist letters, and other types of notices posted by recipients. This can potentially embarrass the copyright owner, who may be perceived as bullying a sympathetic recipient.

For an in-depth discussion of the DMCA safe harbor requirements, see Practice Note, Digital Millennium Copyright Act (DMCA): Safe Harbors for Online Service Providers. For information on copyright infringement generally, see Practice Notes, Copyright: Overview and Copyright Infringement Claims, Remedies and Defenses.