This past year, HostJury has written a number of posts on DMC (The Digital Millennium Copyright Act ) takedown letters that claim violation of a copyright or trademark.  Cease and Desist letters demand that the offender must immediately comply with the request under threat of further legal action. These letters usually are sent to the webhost of the offending site demanding that the infringing materials be taken down.

Oftentimes these notices are sent out of a necessity to ensure that the copyright owners is proactive in consistently protecting their legal rights and there is also an assumption that a majority of notices are sent in good faith. But not always!

HostJury focused on the absurd antics of some characters in Takedown Letters can add buzz as well as a post about a Reviewer Caught Posting then sending a takedown letter. There were others including a number of stories about requests to take down sites sans the Cease and Desist letters.

DMCA Safe Harbors

Under the DMCA Safe Harbor Provisions, a web host would be required to remove questionable material if certain requirements are satisfied by the representative of the originator of the Cease and Desist notice. In order to ensure that copyright owners does not wrongly insist on the removal of materials that actually do not infringe their copyrights, the safe harbor provisions require web hosting service providers to notify the subscribers if their materials have been removed and to provide them with an opportunity to send a written notice to the service provider stating that the material has been wrongly removed.

The DMCA also states a subscriber can provides a proper "counter-notice" claiming that the material does not infringe copyrights, and the service provider must then promptly notify the claiming party of the individual's objection. If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network.

A word of thanks to Dave Touretzky for providing a good example of a Do-It-Yourself Counter Notification Letter:

Dear Web Hosting Provider

This letter is written in response to your notification to me of a complaint received about my web page(s). The pages in question are:

(insert list of URLs here)

My response to this complaint is as follows: (include all that apply from list below)

Allegations of Copyright Violation / Digital Millennium Copyright Act

The claims of copyright violation should be rejected because:

> The material in question is not copyrighted, or the copyright has expired. It is therefore in the public domain and may be reproduced by anyone.

> The complainant has provided no copyright registration information or other tangible evidence that the material in question is in fact copyrighted, and I have a good faith belief that it is not. The allegation of copyright violation is therefore in dispute, and at present unsupported.

> The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner's rights.

> My use of the material is legally protected because it falls within the "fair use" provision of the copyright regulations, as defined in 17 USC 107. If the complainant disagrees that this is fair use, they are free to take up the matter with me directly, in the courts. You, as the webhost, are under no obligation to settle this dispute, or to take any action to restrict my speech at the behest of this complainant. Furthermore, siding with the complainant in a manner that interferes with my lawful use of your facilities could constitute breach of contract on your part.

>The complaint does not follow the prescribed form for notification of an alleged copyright violation as set forth in the Digital Millennium Copyright Act, 17 USC 512(c)(3). Specifically, the complainant has failed to: 
 

- Provide a complaint in written form.
- Include a physical or electronic signature of the complainant.
- Identify the specific copyrighted work claimed to be infringed, or, if multiple copyrighted works are covered by a single complaint, provide a representative list of such works.
- Provide the URLs for the specific files on my web site that are alleged to be infringing.
- Provide sufficient information to identify the complainant, including full name, mailing address, telephone number, and email address.
- Include a written statement that the complainant has a good faith belief that use of the disputed material is not authorized by the copyright owner, its agent, or the law.
- Include a written statement that the information in the notification is accurate, and under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
 

This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3):

I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law.

My name, address, and telephone number are as follows:

(address here)

I hereby consent to the jurisdiction of Federal District Court for the judicial district in which I reside (or, if my address is outside the United States, any judicial district in which you, the webhost, may be found).

I agree to accept service of process from the complainant.

My actual or electronic signature follows:

(electronic or actual signature here)

Having received this counter notification, you are now obligated under 17 USC 512(g)(2)(B) to advise the complainant of this notice, and to restore the material in dispute (or not take the material down in the first place), unless the complainant files suit against me within 10 days.