HOW TO SEND TAKEDOWN NOTIFICATIONS
If you find your music being given away or sold by a store, filesharing website, blog etc without your consent.
We have taken the time and paid for this information to be given to you for free so please take the time to read the info below carefully before acting as Takedown Notices can be subject to abuse. In order to prevent this the US legislation is strict. Please be careful if you decide to send a Takedown Notice to an US-based ISP. In case you make any false statements in your Takedown Notice you can be held liable for the damages caused by the removal of the work from the Internet. Please keep in mind that your Takedown Notice includes a statement under perjury that the information provided by you in the notice is accurate and true. This is serious business !
1. In what situations can you send Takedown Notices?
You can send a Takedown Notices in the event your copyrighted material is being made available on the Internet without your permission. You can send your Takedown Notice to the ISP that is hosting the infringing material.
Please note: Before sending out Takedown Notifications, first try to contact the person who uploaded the infringing download (if you can find his/hers contact details). If that is not possible, please try to contact the owner of the website and ask him or her to remove the infringing download.
2. What is a Takedown Notice?
In both the USA as in all European Union member states it is a general rule that ISPs who host content for their customers have the duty to remove illegal and harmful content from the Internet once they are made aware that their servers host it. If the ISP does not remove or disable the copyright infringing content from its servers upon acquiring this knowledge, the copyright owner can hold them liable for damages.
In order to inform an ISP of copyright infringing material on its servers, the copyright owner of the material can send the ISP a notification thereof, the so-called Takedown Notice. As soon as the ISP receives this Takedown Notice it acquires the knowledge of illegal content being made available online through its services. Consequently the ISP is obligated to remove or disable access to this infringing content. If the ISP does not remove the infringing content after receiving a valid Takedown Notice, the copyright owner can sue the ISP for damages caused.
3. Only copyright owners and/or their agents can send Takedown Notices
Takedown Notices can only be sent by the copyright owner(s)[1] of the alleged infringing work, or their agent(s)[2].
PLEASE NOTE: Before you send any Takedown Notices, please verify carefully if you are indeed the copyright owner of the work concerned or the copyright owner’s agent. If you are unsure, please ask for legal advise first.
3. To whom can you send Takedown Notices?
Takedown Notices can be sent to all ISPs[3] located in the European Union and in the USA that host copyright infringing content for their customers (like websites, subscribers, members, chat- and news groups, etc.).
If you are a copyright owner and you see your material online without your permission, you need to address your Takedown Notice to the hosting ISP of the infringing website.
PLEASE NOTE: You can only send Takedown Notices to ISPs located in the US and the EU, not to ISPs in other countries. Most ISPs, however, are located in the USA or in Europe. This means that, although an infringing website is located outside of the EU or the US, you can still send Takedown Notices to the website’s hosting ISP when this ISP is located in the EU or in the US.
4. Determine the location of the infringing ISP
Takedown Noticifications need to be addressed to the ISP that hosts the website containing the infringing download. So determining the ISP is an important step.
The procedure for sending Takedown Notices addressed to an ISP located in the USA is slightly different from the procedure of sending Takedown Notices to an EU-based ISP. The procedure for US-based ISP’s is more defined by law and more strict. Therefore, if you would like to send Takedown Notice to an ISP, you first need to determine the location of the ISP in question; is it based in the USA or in a member state of the European Union?
Sometimes you can distract the ISP’s name and/or location from the website containing the alleged infringing material itself. Have a look at the bottom of the website and see if there is a “contact” button or if they’ve listed the name of the website’s ISP in some other way.
If you have the name of the ISP, you can try to find its official address and location by ‘googling’ the ISP’s name.
In the event that you can not derive the name and/or location of a website’s ISP from the website itself or through a Google-search, you can find the infringing website’s ISP by following the next few steps:
Go to: www.centralops.net.com ;
- Choose on the left side of the screen under “Utilities” “Domain Dossier”;
Fill in the box saying “domain or IP address” the address of the website containing the infringing download (EG: www.mediafire.com);
- Also tick the box “traceroute”;
- Press “Go”;
- Scroll through the result till you see the section “Network Whois record”. Under this section you can find the name (and if you are lucky, the contact details) of the ISP you are looking for. If your search does not give you the address of the ISP, please try to ‘google’ for the address and contact details.
PLEASE NOTE:Most ISPs, especially those located in the USA, have on their own website a special section on copyright infringement, abuse, Takedown Notice-procedures and contacts. In the USA, under the DMCA, ISPs have the legal obligation to publish this information on their website. So please also have a look at the main website of the ISP.
5. How to compose and send a Takedown Notice to an USA-based ISP
When your infringing website’s ISP has its headquarters in the USA, you need to send the ISP your Takedown Notice in accordance with the requirements of the US Civil Code.
5.1. Contents of Takedown Notice under US law
A Takedown Notice to an US-based ISP needs to meet certain requirements in order to have any legal effect. The law on this point is strict!
Your Takedown Notice must meet any and all of the following requirements:
- It must be in writing (in English);
- It must be signed by the copyright owner or it’s agent (your electronic signature will suffice);
- You must clearly identify the copyrighted work that you claim has been infringed (or a list of infringements from the same site);
- You must clearly identify the material that is infringing your work and that is to be removed or access to which is to be disabled by the ISP. You also need to provide information reasonably sufficient to permit the ISP to locate the infringing material (for example, the URL of web page on which the material appears. It is very useful to also include a screenshot of the infringing material online).
- You must include your full contact info;
- You must state that you are complaining in “good faith.” You can use a statement like: “I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.”;
- You must include the following statement: “ I state under penalty of perjury, that the information contained in this notification is accurate;” and
- You must state that you have the right to proceed because you are the copyright owner or the copyright owner’s agent. You can use a statement like this: “I swear that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”
Please make sure that your Takedown Notice contains all of the above-mentioned elements in order to be valid and to have any effect.
** For an example of a US Takedown Notice, please see Exhibit A (at the bottom of this page by ‘Download attachments’). You can use this as an example for your own Takedown Notice to all US-based ISPs.
5.2. Designated Copyright Agents
US law requires US-based ISPs seeking immunity against copyright infringement to designate a special copyright agent (the “Designated Copyright Agent”) to whom Takedown Notices can be addressed and sent. This implicates that all ISPs in the USA should have appointed such an agent.
US-based ISPs are under the legal obligation to make available in a location accessible to the public, the name and contact details of their Designated Copyright Agent. This Designated Copyright Agent, must also be formally registered by the ISP in the Register of Copyrights at the US Copyright Office.
This Register of Copyrights is available to the public and maintains a current directory of most ISPs’ Designated Copyright Agents. You can easily find the contact details of most big US-based ISPs’ Designated Copyright Agents in this register. The register is available here. Please address your notice to this Agent.
5.3. What happens after you have sent a valid Takedown Notice to an US-based ISP?
When a US-based ISP receives a Takedown Notice that complies with all the above mentioned requirements, the ISP is obligated to remove or disable the identified infringing material from its service promptly in order to avoid liability. But please mind that this is not the end of the procedure yet! The American legislation also provides certain rights for the subscriber or user (the “alleged infringer”) who posted the alleged infringing material on the ISPs servers. This alleged infringer has the right to respond to the Takedown Notice by filing a counter notice with the ISP.
After receipt of a valid Takedown Notice the ISP has to promptly inform the alleged infringer who posted the alleged infringing material of the Takedown Notice and of the material’s subsequent removal.
The alleged infringer may then provide the ISP, in reaction to the removal, with a counter-notice (the “Counter-Notice”) stating that the initial Takedown Notice was erroneous. Upon receipt of such a Counter-Notice from the alleged infringer, the ISP will notify the copyright owner who send the Takedown Notice thereof and restore the material within 10 to 14 business days after receipt of this Counter-Notice, unless the copyright owner informs the ISP that he has filed an legal action seeking a court order to restrain the allegedly infringing party from engaging in infringing activity relating to the material online.
PLEASE NOTE: Takedown Notices can be subject to abuse. In order to prevent this the US legislation is strict. Please be careful if you decide to send a Takedown Notice to an US-based ISP. In case you make any false statements in your Takedown Notice you can be held liable for the damages caused by the removal of the work from the Internet. Please keep in mind that your Takedown Notice includes a statement under perjury that the information provided by you in the notice is accurate and true. This is serious business!
6. How to compose and send a Takedown Notice to an EU-based ISP
Not only the USA, but also member states of the European Union have introduced a liability regime for ISPs that host third party content. This legislation is made and introduced on an European level.
The content of a Takedown Notice addressed to an EU-based ISP is largely the same as the content of a Takedown Notice addressed to an US-based ISP. The biggest difference is that a Takedown Notice to a EU-based ISP does not need to include any statements made by the copyright owner under perjury or under good faith.
Please mind that European law first requires you to contact the uploader itself. If you can not contact the uploader itself or if the uploader refuses to remove the infringing download, you can go to the next step and contact the owner of the website. In the event the website-owner can not be traced or if he does not respond to your request, you can send a Takedown Notice to the ISP hosting the website.
A Takedown Notice to an EU-based ISP most contain the following details:
- It must be in writing (in English, or in the language indicated by the ISP);
- It must be signed by the copyright owner or it’s agent (your electronic signature will suffice);
- You must clearly identify the copyrighted work that you claim has been infringed (or a list of infringements from the same site);
- You must clearly identify the material that is infringing your copyright and that is to be removed or access to which is to be disabled by the ISP. You also need to provide information reasonably sufficient to permit the ISP to locate the infringing material (for example, the URL of web page on which the material appears. It is very useful to also include a screenshot of the infringing material online).
- You must include your full contact info;
- You must state that you have the right to proceed because you are the copyright owner or the copyright owner’s agent.
** In Exhibit B, you can find an example of a Takedown Notice to an EU-based ISP (at the bottom of this page by ‘Download attachments’).
After you have completed your Takedown Notice you can send it to the infringing ISP in question.
Notices to US-based ISPs should be addressed to the Designated Copyright Agent, in the event the ISP has one (check the Register of Copyrights). If the ISP does not have a Designated Agent, like most EU-based ISPs, you can address your Takedown Notice to the legal department of the ISP.
While most ISP’s will accept your Takedown Notices via email, some ISPs require Takedown Notices to be send via fax or regular mail (like for example Google) or via registered mail. Some ISPs provide a webform on their website in order to submit your Takedown request (see for example YouTube).
Before sending your Takedown Notice, please verify first via what ways you can send your Takedown Notice to the ISP; via email, via regular post, registered mail (FedEx) or via fax. In the event you are unsure, it is best to send the notice via registered mail with a copy via email.
DISCLAIMER: WE ARE NOT YOUR ATTORNEYS, AND THE INFORMATION WE PRESENT HERE IS NOT LEGAL ADVICE. WE PRESENT THIS INFORMATION FOR INFORMATIONAL PURPOSES ONLY. NOTHING IN THESE PAGES CONSTITUTES LEGAL ADVICE. YOU SHOULD CONSULT A SUITABLY QUALIFIED LAWYER IN ANY SPECIFIC LEGAL PROBLEM OR MATTER.
[1] For more information on “copyright ownership” please see: http://www.bitlaw.com/copyright/ownership.html
[2] For more information on “agent(s)” please see: http://legal-dictionary.thefreedictionary.com/Agent
[3] For more information on ISP’s please see: http://encyclopedia2.thefreedictionary.com/Internet+service+provider