So, You Received a DMCA Notice. Now What?

Note – The opinions expressed in this article do not constitute legal advice and should not be construed as legal instruction. Our first amendment right allows us to speak about our experience with DMCA complaints and our perspective on how to treat them. 

No one should consider it surprising that anyone, including business owners, ends up with copyrighted material on their websites without appropriate permission. We live in a society that permits almost habitual sharing of everything from thoughts to videos. This is actively encouraged in social media. Every day, business owners are inundated with messages designed to make them more prolific sharers and tools that make it easy and even permissive to copy and share content from any online source. Computers offer PrintScreen and screen-snipping tools, browsers feature download options, and the majority of websites display share buttons.

Yet, many business owners are asked to live in a different world where sharing means paying others thousands of dollars, or so the official notices say. In this world, lawyers get to demand money from them to pull content from their websites and social media accounts because they’ve infringed on someone’s copyrights by illegally sharing audio, images, text or videos. The demand is immediate, and the threat seems legitimate because it was signed by an actual attorney.

These two worldviews are opposite by their very nature, but everyday business owners are threatened by very real legal letters seeking damages and immediate action for something the majority of society has been conditioned to do over the past 20+ years. Let’s take a deeper look into this and see what the existing laws say.

What Is The History of Digital Copyright Infringement?

Social norms related to sharing aren’t blanket permission. According to the U.S. Copyright Office, copyright infringement occurs when anyone, whether an individual or business, uses content that they didn’t create or own without the express permission of the owner. They might have displayed it in a public place, used it in a performance capacity, copied it or shared copies with others.

In the 1990s, as more consumers and business owners gained access to computers and the internet, they discovered and took advantage of faster, easier ways to copy and share content. By 1998, after the government received a wave of copyright infringement and subsequent financial-loss claims, President Bill Clinton signed the Digital Millennium Copyright Act (DMCA) into law to help better define online copyright infringement and fair use of copyrighted materials and dictate related penalties.

At the time, file-sharing of copyrighted materials, especially music, movies and other entertainment files, had taken off online. People were prolifically copying and sharing files on torrent sites and profiting off the sale of copied materials. Criminal actions of copyright infringement undercut copyright holders and make it difficult for them to fully use and make money off their own content. Until the DMCA, internet service providers (ISPs) and any provider of online services (OSPs) were also liable for the actions of their customers who they couldn’t fully control. The DMCA dictated that these companies couldn’t be found liable for infringement as long as they didn’t knowingly benefit from it and sent warnings known as DMCA Notices to potential copyright infringers after receiving DMCA Complaints.

Although these notices serve a critical function in helping to prevent copyright infringement so that creatives and others can preserve their rights, these letters have also caused a lot of headaches. In fact, they’ve become so problematic, especially in terms of the language used by some aggressive law firms, that many business owners refer to them as “DMCA Nastygrams.”

What should you do if you receive a notice that claims you used copyrighted material without permission?

DMCA ‘Nastygram’ Basics

Before you decide how best to handle this type of legal communication, it’s important to understand what a DMCA Notice means in the United States and why some people call them nastygrams.

The notice only works within the U.S. or with companies that recognize U.S. copyright infringement laws. The letter should note, without overly threatening language, that you hosted, shared or linked to infringed material or posted instructions on how to infringe and illegally use copyrighted content.

Many copyright holders and law firms go a step further and state that they will sue if you don’t remove their content immediately, which is where the “nasty” comes into play. Some even try via letter to convince a business owner to pay the copyright holder compensation or “damages” for estimated or perceived losses. The letter might also outline steps that the business owner can take to “pay” for the right to use the content with a credit card or other type of payment option.

In the worst DMCA Nastygram scenarios, you’re likely dealing with one or more scammers instead of a legitimate copyright holder. Since scammers know that fear is a powerful tool they can use to cause confusion that leads people to make serious financial mistakes, such as give a payment card number to a stranger on the phone, some scammers mail or email fake DMCA Notices to people they target.

So how do we deal with the sheer volume of potential financial-damage claims that came about with the age of the Internet? Part of the answer is ‘fair use’:

What Is the Fair Use Doctrine?

U.S. copyright statutes allow anyone to use small or “limited” parts of any work in certain scenarios, such as scholarly or academic works, news or media reporting, and when making commentary or criticisms about the work. Since fair use depends entirely on the situation, you should never attempt to use copyrighted works for personal or commercial reasons without a thorough understanding of the fair use doctrine. For example, educators and librarians can and should refer to the U.S. Copyright Office’s Fair Use Index and a document about fair usage for their specific situations titled “Circular 21, Reproduction of Copyrighted Works by Educators and Librarians.”

Tech companies also maintain their own pages and reference documents about fair use. As noted by Google, for example, the four main factors typically considered by their company and others are the “purpose” of the use, the “nature” of the original work, the “amount” of usage, and the “effect” on the market value of the original work.

  • With purpose, they compare education and nonprofit usage to commercial usage. They decide if the usage involved more than copying and sharing or borrowing heavily from the original, as seen with short quotes or derivative and “transformative” works that represent new content inspired by the original.
  • With effect, they try to determine the amount of financial or reputational harm that the usage caused or will cause the copyright holder.

What Do Legitimate Notices Usually Say?

A legitimate DMCA notice has a standard format that should be found on any legitimate complaint. If the letter does not contain all of these details, question immediately who is sending this letter as it may be sent by a scammer trying to trick their victims by exploiting fear.

A proper DMCA complaint typically starts with

  • An actual greeting.
  • The name of the copyright holder or their representatives, such as a law firm or creative arts company.
  • They might follow with their address and contact information or place those details at the bottom of the letter.
  • They make it clear that their letter is a DMCA Notice and the section of the law that applies to the situation.
  • They then make a simple statement of good faith that they’re telling the truth about their claims and ask you to remove the content immediately upon receipt of the notice because they own it, or they represent the owner.
  • An explanation to you how they learned about your possible copyright infringement and outline the exact type and number of copyrighted material or materials.
  • They then provide you with the exact location of the materials on your site or affiliated platform and a link to the original location of the work, such as their own business or portfolio site or the website of a platform that has their permission to share the content with the public or paying customers.

As already noted, you might also receive threats or a demand for money based on proposed damages from the initial letter, or with some or all of the information above missing. As marketers, we have found this to be typical in the legal industry. There are many lawyers who will simply accept money to send a letter knowing the legal threat will never go anywhere. If the notices you receive do not contain the information above, we have found these are more threats than actual arguments built on solid legal reasoning.

Since some copyright holders send out their own notices, you might receive a letter from a legitimate owner with spelling or grammar errors or foul language as well. The best way to respond to informal notices is to have your own process to send formal notices in response.

How Should You Respond?

Whether you purposely or accidentally used copyrighted content, and someone has complained, you should do the following things:

  1. Remove it from your website, social media account or any other location where it was found.
    1. Unless you can provide receipts to the purchase or permission use of the infringing images, videos, audio or other creative works, it makes sense to remove the disputed media as soon as you can.
    2. Even if your usage falls under the “fair use” doctrine, you should confirm this fact before allowing the matter to escalate. If you don’t remove it, the copyright holder or their representative may feel they have the right to pursue you for copyright infringement, regardless of whether their claim is valid or not.
  2. Build a relationship with a good business attorney.
    1. This is good advice for any business owner running any sort of profitable business. You will find that sooner or later you need a good attorney you can call to respond quickly and effortlessly to
    2. Since there are a lot of nuances when dealing with copyright-infringement claims, it’s typically best to work with a business lawyer first no matter the urgency or any threats.
  3. Generate a counter-notice
    • One that offers up your own good faith statement about the usage and your willingness to work with the potential copyright holder.
    • This notice explains that you took down the content until you can resolve the matter and outlines why you believed you had the right to use it or still believe you have that right.

The copyright holder or their representative can choose to halt their DMCA process, if they removed it already, or file a lawsuit. They only have so many days to respond to your counter-notice.

The threat of DMCA/copyright infringement lawsuits is more emotional, not rational

As explained earlier in this article, as the Internet grew, these claims of damages became so great they overwhelmed the courts at the time, so much so that the DMCA law was created to define actual infringement with ‘fair use, an extremely important aspect of the DMCA law that addresses disputes of this nature.

The worst part of a DMCA letter is just the stress of the unknown

An experienced professional can help you determine if you’re covered by fair use, or what your potential legal exposure might be. Additionally, they can outline the steps you need to take to quickly and cost-effectively resolve legal problems so that you can return to running your business. There is no ‘template’ for dealing with these issues. Our recommendation is ALL business owners should develop a working relationship with a good attorney in their area, and develop a process to quickly deal with any legal threats they receive. This is especially important for business mergers, acquisitions, and divestments.

A final word from the marketer’s perspective

As marketers, you should not take this article as legal advice and we certainly recommend speaking with an attorney if you need actual legal advice.
However, we still have free speech, so speaking about our practical experience with our clients receiving copyright infringement claims is a valid one. What we have found is the stress of the unknown is the absolute worst part of legal complaint letters. As you run your business, know that the bigger you get, the bigger the target you will be. Sometimes these legal issues are legitimate, other times, they are not. You as the business owner have to decide what to respond to, even if that response is a non-response.