Should I use a DMCA Takedown Service?

DMCA is US Federal Law. It has its international equivalents such as EU Directive 2004/48/EC, which have closely similar intentions and means of operation. They are Acts of Law which cary components enabling copyright holders to self-police their intellectual property on the web.

This self-policing is carried out by the use of Removal Notifications usually sent to alleged infringer websites’ admin as emails.  It is important to note that DMCA has power only within territories of the USA; and likewise EU Directives have power only within the European Union nations.  This, at least, is the presumption.

Notifications made citing DMCA law are required to carry in their bodies an amount of and types of information stipulated in the Act’s legal small print. The bare minimum  more or less ought to be:

  1. Your name and contacts (Name, Company, Postal address, email, telephone, website)
  2. Whom you represent (if you are an agent representing a copyright holder)
  3. The holder’s Contact details (like as with 1. above)
  4. The URLs of the page locations of the alleged infringements (say up to 50 per mail*)
  5. The Product/Service being infringed – (with version or model numbers, names IDs etc)

(Normally when writing to websites, one may not mix products/services of more than one holder or product type in one mail)

Certain formal statements are required:

  1. On penalty of perjury a good faith belief that the notification is true and accurate, to the best of one’s knowledge, and concerns goods/services unauthorised by the holder or the law
  2.  On the same penalty that you have authority to act (from the holder)
  3.  Your signature

Many websites which comply with DMCA Notification emails can be picky about how these are presented to them by senders.  Some of them have special, usually small but nonetheless important-to-note added requirements.  So always read the guidelines given at sites beforehand so as to save time in the longer run. Otherwise your Notification will not be acted upon by a site.

Further, there is, theoretically, redress in law to be had from US websites who fail to comply to a reasonable and well-crafted DMCA Notification. (All the above assertions are likewise analogously true for the EU legislation in this area of copyright. Perhaps the EU law is not quite as strong as US law on balance however?)

You are able also to send Notification requests to Search Engines of Browser Companies like Google and Microsoft and Firefox etc. These companies are obliged in law to remove from their web search engines those links which provide access to pages carrying alleged infringing items as offers.  You have to supply the Browser Companies with lists of their own links to the infringing pages before they will act. And they will act only upon the specific contents of the lists you send them. (*You may send more than 50 links per email with these types of Browser Notification and also concerning more than one website of course))

Note that for these Browser Search Engine types of notification the infringing goods/services still remain on offer at their websites’ pages – it is only that a browsing person can no longer access them via a Google Bing or Firefox Search

The question arises then: what are the benefits in practice of attempting to protect one’s Intellectual Property (IP) in these ways? (Remember DMCA and EU Directive 2004/48/EC deal with copyrights. Trade Marks, Designs, Patents and other forms of Intellectual Property require other modes of approach for their online protection. More on these in other articles that are to follow.)

Firstly, you must not hope or expect to get 100% of infringements removed from the web. Search Engine Notifications satisfy this expectation rather more so than do website Notifications. But with Search Engines remember that new links from all over the world are being trawled and added to their massive libraries 24/7 and so one is always chasing behind a massive and fast moving target.

With websites, even those based in USA, or in any way subject to the action of US law, Removal of say up to 80% of URL pages that you Notify is excellent going.

The reasons for the apparent conundrum of ‘why not 100%?’ are:

Piracy (which is the offence of stealing for commercial reasons copyrighted items) is very much a game of cat and mouse for holders who choose to police their IP online.  Circumventions, not just of security locks placed on software etc by IP holders, but of Federal and other law and regulation are ever being sought out – and found – by pirates and by counterfeiters (counterfeiters steal Trade Marks).

There are available to US website owners playing this game:

  • Proxy services providing them anonymity
  •  ISP services which serve to obscure their whereabouts
  • Freedom to register their website at a foreign location
  • Freedom to repost an infringing item just as soon as the IP holder has ticked it off as ‘done and dusted’

together with many other ‘ways and wiles’ with which to evade the force of the law.

So – is it worthwhile or is it not to attempt to enforce? The chief plusses for enforcing are:

  • The USA and the EU remain the two largest unified trading areas in the world
  •  To get two-thirds or more of infringing items off the web from websites which chiefly are serving consumers within these trading areas is no small beer.
  • To deter the small guy from a quick download or the dark purchase by frustrating his cursory search of Google and/or Bing is a big gain also. He is the guy who will likely go out thereafter and buy a real copy/item instead.

These are not small compensations.

Be aware that benefits in added sales from successful enforcement are difficult to asses or to claim – that is the nature of the beast – the complexity of the web situation and the insuperable data and statistical difficulties cause it to be so.

What you will gain – and which can be invaluable – is for your Company to be seen and to be known as a company which is doing something about its problem on the web.

You might consider this aspect of ‘for appearances sake’ from the following perspectives:

  • Your authentic customer will be far happier (to feel she has not been an ‘honest fool’ to have paid the full price. Her resentment at the pirates etc will be allayed and she will congratulate you for that in her heart)
  • You are able to use your enforcement work as excellent company Public Relations and Press Copy. (Regular citizens will feel that here is a company which supports order and rectitude)
  • Your distributor chain – if you have one – will be delighted that their interests are at the heart of your company IP policy
  • The adverse publicity for your Brand and products that is to be had from the guy who goes public about his fake item ‘not working’ or ‘falling apart’ (the average joe/joanne of this type blames the Brand regardless one finds) is largely countered by your stream of steady strong enforcement PR and press copy etc.
  • Generally your reputation as a company will rise and gain in respect; and even amongst the IP thieves you will be known to be a force to be reckoned with – and sometimes your products will even be avoided by them – for easier pickings – or if you want to be callous – for competitors’ Brands.

So, you will have to weigh up for yourself the enforcement-of-the-web route in the light of your particular needs and desires as a company-businessperson and IP holder. Different businesses innately own to differing properties and priorities; as well as their varied owners wearing differing temperaments and predilections.

There are pros and cons then, as with any course of action. No overwhelming Yes and no resounding No. Undoubtedly there is ground to be gained: but is it worthwhile for you? Are the costs and effort required for you to go for them too resource-absorbing?

Yours is the choice.


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