How to make a DMCA Take Down notice

On forums where you can publish your own work for comment and discussion and a profanity or a perceived violation of the forum's Terms of Service or dispute gets your access disabled before you can make changes or delete your comments, while at the same time your work and comments continue to be published and are still accessible without your ability to make a change then it may become necessary to exercise your legal rights and demand that the page, including your comments and all links be deleted.

Such measures might not be necessary if the site allows you to make corrections or deletions after the fact or does not permanently disable access to your work or comments. Unfortunately, many sites deny access after the fact completely and forever as a penalty for being BAD.

Here then is the means to address a situation in which you want to delete your material and comments but the site has disabled your access. A DMCA Take Down notice includes copies in "unpublished" sections where other users can continue to post comments and replies and receive links to your material by email, even though the material is in the "unpublished" section. Sites must comply in deed and not just words or suffer the consequences of their resulting copyright violation.

Step 1 Gathering the necessary information

First you will need the name and address, email or fax number of the site's designated DMCA (Digital Millennium Copyright Act of 1998) agent. In most cases this information has been provided in the sites Terms of Service agreement.

The name of the Instructables DMCA agent for instance is:

Eric Wilhelm
Instructables, Inc.
1467 Park Ave
Emeryville, CA 94608
[e-mail]
510-653-1643

Normally the phone number which is provided for the DMCA agent is a fax number, but if it is not then you can send a certified letter to the snail mail address. Note that a picture is not necessary, although a likeness or avatar might help the site's staff connect the name with the person...

Comments

[Arborlaw]

DMCA Takedowns and C&Ds: Enforcing Rights Against Online Infringers

The DMCA is deceptive in seeming "DIY" and consumer-friendly. Unfortunately, just as often as not, someone making a DMCA takedown demand does it incorrectly under the statute -- either they apply DMCA procedures to non-copyright-based claims, or they make a defective claim which does not meet the requirements for the procedure. But the real danger is the backlash: the DMCA itself provides not just a "rebuttal" by the target, but also creates a right for the "target" to sue the complainer. And many have done just that, and some have gotten very large damage awards.

I have an article discussing the dangers of incorrect DMCA takedowns:

http://arborlaw.biz/blog/2008/02/05/dmca-takedowns-and-cd/

It's for a legal audience so it's dry and technical -- but it gives the citations and steps through the process of making a valid takedown. It also discusses all the things you can NOT use a DMCA takedown for, such as: statements that are false that someone says against you (slander, libel, disparagement); trademark complaints; trying to eliminate a competitor; getting back at a former lover.... Sounds trivial, but if you go to chillingeffects.org you will see that people use the DMCA for ALL kinds of inappropriate reasons.

Carol Shepherd, Attorney
Arborlaw PLC

[nagutron]

Ah, with your [http://#CUGKLVRF5EB7KKE last comment], we're getting back to the point! I've been waiting, and will celebrate by starting a new thread.

Your question is a bit incoherent (it is not possible for a legal process to be a trade secret), but I'll dress down your language and assume that you're asking if law should be practiced exclusively by lawyers. The answer is no, it should not. That is not the case, in fact, and I believe that as a normative statement, as well. It is a competent person's right to defend herself in court, and any citizen may file properly-formed motions.

However, for the third time, I will remind you that this is not the matter at hand. Law is ultimately tested in the context of particular facts, in the real world. A DMCA notice results in the removal of a piece of content, or it does not. A subsequent lawsuit has an outcome favoring the plaintiff, or one favoring the defendant. Until one of these things happens, anything one says is theory.

This is always the case, but for an convoluted argument like the one you've made (that unconscionable terms of service can nullify the copyright assignment porton of the TOS and thus leave a web site open to a DMCA claim) it is even more important to put the idea into practice before you can claim that it will work.

So, I once again challenge you to show that your Instructable works as advertised.

Note, again, that this does not need to involve a lawyer. So if you feel the need for me to reassure you for a third time that you can do it yourself, please just reread these threads again and get to work.

[nagutron]

Fixed link to smarterthanu's last comment

[smarterthanu]

Well at least one (intentional?) deception has been eliminated - you are a girl? I suspected as much at some point along the way but avoided the possibility of insult. Girls present a whole different case for argument. They have to win no matter what, so as gentlemen we let them so as to eventually reap their favor rather than their wrath. As for cases, I choose not to punish compliant publishers by revealing a particular case. In fact if I had any cases to reveal it would be the cases which involved publishers who remain defiant in hopes of soliciting professional help and settling the matter by increasing the level of my bank account. As for TOS agreements... merely evidence of individual or corporate intent to circumvent existing law. Evidence also of the basic need for government to exist as a potential intervening party. Have fun at your next baby shower, the place where you belong.

[nagutron]

Baby shower? Huh....? Okay, let's ignore that insanity and move on. Your second paragraph seems to be a convoluted way of saying that: a) You have proof that some web site operators have complied with a DMCA takedown notice similar to the one in this Instructable, but that you won't show this proof, and b) There are other web site operators who have completely ignored your DMCA notices. Which, in a nutshell, simply means that you are offering no proof whatsoever. Of course, you imply that you will be suing the web site operators in latter category, which I have repeatedly told you is really the only way to figure out where the law stands on this question. Please link to those documents, when you file suit, so that we can judge for ourselves how your case fares in court. Remember that we are looking for a case with similar facts to the situation that you describe in your comments. Again, this is a situation where you claim that unconscionable terms of service can nullify the copyright assignment porton of the TOS and thus leave a web site open to a DMCA takedown notice. This is probably the fifth time you're being asked to substantiate your claims. Don't worry; I'm not getting tired. Every time you make a personal attack, wander off into some tangent, or go Tourettes on the thread, I'll be here to calmly bring you back to the point at hand. And with each passing day, it will become more and more clear that you are not, in fact, able bring any substance to your arguments.

[smarterthanu]

Well said but... I do not need to offer proof and hopefully no one who reads this Instructable will actually need it. For those who do need this instructable, hopefully the facts they present will be supported. There is nothing stopping you from testing it, if the results are really what you want.

[nagutron]

Very well, then. We will leave it at that. Unfortunately, this means that this entire discussion ultimately tells a future reader very little about whether "[i]t is a sites [sic] denial of user access and control under such terms, which puts DMCA in authority." Rather, this thread will only be one opinion versus another. I am being charitable, of course, as anyone with experience with the legal system will see that my arguments are sound and yours have been... well... interesting, at best. Again, the Instructable is still useful for the boilerplate language in Step 4, so it is not as though your work has been a total loss. However, if your legal battles continue as you say they do, I urge you to reconsider adding supporting material to this Instructable in the future. You can also post notices that have worked, with the identifying information of the sites obscured for their protection. I will do the same if I am ever in a position to send a DMCA takedown notice.

[smarterthanu]

sophomoric Main Entry: soph·o·mor·ic Pronunciation: "säf-'mor-ik, -'mär- also "sof- or "sä-f&- or "so-f&- Function: adjective 1 : conceited and overconfident of knowledge but poorly informed and immature 2 : of, relating to, or characteristic of a sophomore

[nagutron]

irony 1 |ˈīrənē; ˈiərnē| noun ( pl. -nies) • a state of affairs or an event that seems deliberately contrary to what one expects and is often amusing as a result • (also dramatic or tragic irony) a literary technique, originally used in Greek tragedy, by which the full significance of a character's words or actions are clear to the audience or reader although unknown to the character. --- Let's think of an example, shall we? How about this: A user who has chosen the handle "smarterthanu" actually posts the definition of "sophomoric" in a public forum, in an attempt to insult another. Need anyone say more? Let me guess: you will.

[smarterthanu]

...and why not? The defense always gets the last word.

[nagutron]

Perhaps you're joking, but the reasons for you not to inflict yourself on any future discussion are beyond counting.

[smarterthanu]

Is that a threat?

[nagutron]

Are you crazy? No, it wasn't a threat. Calm down.

[smarterthanu]

It's your persona image... says aggressive male, not intelligent female.

[nagutron]

Don't be so hung up on gender. If you want to engage in a debate, try to take a person's words at face value. You'll notice that I haven't once, despite your trolling, speculated on your background. In an anonymous forum such as this, one's ideas should stand on their own.

[smarterthanu]

You are the one who is engaging in a debate, not I. I'm merely curious with whom? My assessment remains that you are a freshman or sophomore, unsure of your gender or yourself, in total absence of any idea worth presenting.

[nagutron]

This is an interesting tactic: Upon utterly losing an argument and finding yourself outclassed in every possible way, you panic and pretend that you were never participating in the debate to begin with. Champion move, my friend, except that this page is littered with your feeble, incoherent attempts at argument. You were clearly trying to engage in debate, at least earlier on. Who I am is irrelevant; who you are is even more so. Rest assured, though, that I have not misrepresented a single thing about myself. It's not my style. Again, I'll be here if you decide you want to tackle the substantive issues, again. I won't hold your previous behavior against you, if your ideas are sound.

[smarterthanu]

You obviously want to pick a fight with someone but sorry, I'm not the one. The "debate" you are pretending to win was won in the Congress of the United States many years ago and not in your favor, I might add. You mentioned trolling, well shake hands with yourself buddy for that is exactly who and what you are.

[nagutron]

I'm open to a reasonable discussion, not just unsupported assertions. For the nth time, I am asking you to support your claim that unconscionable terms of service can nullify the copyright assignment porton of the TOS and thus leave a web site open to a DMCA takedown notice. Noting that the DMCA was signed into law in 1998 does nothing to support that claim. If you are backing down from that claim, all the more power to you; it's a poorly-formed one. If this "fight" is not where you want to be, then you're free to stop commenting. My guess is that you won't be able to let it go, however, and will continue your personal attacks while avoiding the real debate. Don't worry, though. Like I said, I'm patient.

[smarterthanu]

Just as I figured. A blow-hard coward unwilling to take a chance.

[smarterthanu]

You have 5 more minutes to either put up or shut up. Make your choice now.

[smarterthanu]

Allow me then to provide you with some copyrighted material under any TOS you choose, cut me off from deleting the material as "unconscionable terms of service" and hold that the "copyright assignment porting of the TOS" is not nullified (assuming that it does not support a DMCA take down notice or the copyright I hold) and then refuse to comply with the DMCA notice which I issue. You look like a betting man willing to take a risk. How much in cash can you put up as guarantee that you will not be required by the court to comply with that take down notice? 1 million, 2 million, no lets make it 100 million dollars. That is 75 million more than was spent for an certain individual to orbit the earth in space.

[nagutron]

Wow.... Calm down, my friend. It was Thursday evening. Some people have social lives. This is a hopeful development, though: You, willing to finally take action. No need to be so angry about it, however. The solution is quite simple: just use the real life situation that you imply has already occurred, in your Instructable. Perhaps I'm wrong, and the events that you describe in your Instructable are purely hypothetical. Hopefully you will forgive me, in this case, as the implication was quite strong: you actually list the Instructables CEO as the agent to whom one would issue a DMCA takedown notice. If I'm wrong and you have no beef with Instructables whatsoever, then perhaps you'll enlighten us as to why your Instructable seems to be directed at this site. If, instead, the reality is that you actually have Instructables on this site (perhaps under alternate usernames that have been banned) that you would like to use a DMCA notice to take down, then it seems that it's you who needs to "put up or shut up," as you so kindly put it. As I said, the implication is rather strong that the latter is the case. If you deny it, then you may also have to forgive someone reading your comments for suspecting you of being a liar.

[smarterthanu]

You’ve been harassing me over this instructable long enough. You have offered no suggestions for improvement, pointed out no critical errors, demand proof that it actually works, challenged the fact that it can overcome a copyright assignment made part of an online publisher’s TOS and have provided law enforcement with all the evidence it needs as to the motive of making a copyright assignment a part of a TOS. You should reconsider the lawfulness of your copyright assignment plan to avoid exchanging your current social life for that of a 5 by 9 cell, rather than continuing to engage me on pretense of actually having something of value to say.

[nagutron]

"Harassing" is a bit of an exaggeration, don't you think? I have been asking straightforward questions of you. You have repeatedly dodged them, so I have repeated the questions. I have done so in a civil manner at all points. I can see that you are tired of evading, having painted yourself into a logical corner once again. I bear you no ill will, but I certainly won't cut you any slack simply because you are uncomfortable with your position in this discussion. Seriously, re-read your comments and my comments. The structure of the substantive points has been laid out multiple times. The unanswered questions are all upon you to answer. If you can construct a reasonable argument that gets you out of your current bind, then do so. If you can't, be mature and take back any statements you need to in order to have a coherent position.

[smarterthanu]

I'm uncomfortable with your position having been the victim of both ordinary and brilliant thieves on more than one occasion. Law enforcement is aware of the possibility of your copyright assigment trick in the TOS agreement. As for providing answers to your questions: asking someone to prove that clouds are white just to throw them off and waste their time does not mean clouds are not white or that you have a legitimate need for them to provide an answer or even have a relevant question. It does mean that harrasment is your objective when you fail to take a hint and continue to harrass them.

[nagutron]

You're going in circles, unfortunately. Your comparison between a real legal question and whether or not the clouds are white is just as absurd as your comparison between the legal question and [/id/E1YLI96F4NW2I9L/?comments=all#CG50KM0F54HMGAX whether the world is flat].

I am not naive enough to speak in the absolutes that you do, especially when it comes to legal matters, but I will say that most user-generated content sites on the web have copyright assignment as part of their terms of service. Go ahead and look around. Almost any place where you can upload images, comment, or post text of any sort will have a "User Content License" that assigns at least part of the contributor's copyrights to the site. Some of these are more relaxed than others, but they all operate under the same principle: The user agrrees the TOS upon signing up or contibuting content. Most well-known sites have had those clauses tested, legally, and all have prevailed.

Again, I am not naive enough to think that this will necessarily continue to be the case. It's possible that, in the future, given a certain situation, a user might be able to make a valid legal argument that would prevail in court. However, the burden is most definitely on that user to provide the rationale for the court to rule against well-estabilshed precedent.

You are that user. All anyone reading this Instructable would ask is: "Does it work?" It's a fairly low bar that most Instructables are subject to. If you're really going to answer that question, you're going to have to step up your game, significantly.

[smarterthanu]

Before I moved where I live now the law of the State where I lived did not include in its definition the denial of possession as theft. Webmasters and providers of online services may think that because a case has not yet been brought into court that they are safe in writing TOS agreements which are intended to overthrow the law to make life easier on themselves. Denying an author access to his work under such an agreement in their minds may not constitute theft because of the TOS agreement they have crafted but I can assure you if a case were to ever come into my court and the defense used a TOS agreement in his own defense I would not only grant the plaintiff a large settlement fee but have the Bailiff place the defendant under arrest for theft. For that reason I am not anxious for a case to be tested in court but rather hope no one will have to learn this lesson after they are in that 5 by 9 cell. Defy the law and you get banned from the Internet forever in addition to a large settlement fee and jail. Cooperate voluntary now before a case finally makes its way into court and a case may never come before me at all.

[nagutron]

Good Instructable, with lots of shortcuts to get something like this done. Big corporations have no trouble sending DMCA notices, but independant artists may very well be able to use the boilerplate that you have in Step 4.

While the Instructable is generally useful, though, it may not work in the particular situation that you mention. Users may not have a DMCA claim over their content on most sites, depending on the Terms of Service that users agree to when they create an account.

On Instructables, for example, users retain almost all IP rights to their work (which is pretty cool, IMHO), but they also grant Instructables the right to display that content. Check out Section 7a of the Terms of Service:

"With respect to Content you submit or make available for inclusion on publicly accessible areas of Instructables, you grant Instructables the world-wide, royalty free, perpetual, irrevocable, non-exclusive and fully sublicensable license to use, distribute, reproduce, modify, adapt, publish, publicly perform and publicly display such Content solely for the purposes of providing and promoting Instructables."

Generally, an author can assign part or all of her copyright protection via contract, which is exactly what users do when they agree to Terms of Service on a web site. This is also how cool legal instruments such as Creative Commons licenses work.

[smarterthanu]

So long as users retain the ability to unpublish and to delete, their own material what need is there to object to such terms. It is a sites denial of user access and control under such terms, which puts DMCA in authority. A sites failure to comply with a DMCA notice, necessitated by denial of user access and control and its lack of integrity, speaks volumes. A better solution would be for a site to maintain user's ability at all times to delete or remove their material. Playing the game of inciting a user to wrath so that a violation of the TOS will provide an excuse to deny user access and an inability to remove or to delete his material and you commit premeditated theft. You forget the government has a vast number of inmates, willing for little more than early release, to expose the wrongful intent of even their own mothers.

[nagutron]

Hm. I'm am not a lawyer (fortunately), and it's clear that you aren't either, so we should be careful about speculating on the law. However, I believe that you and uglybag are both conflating two distinct issues. One is whether a web site is within its rights to terminate a user account, given certain behavior and given a certain TOS. The second is whether that user has a DMCA claim over her creative works under that same TOS. I see that this might be confusing, since both legal issues revolve around the same document, but a court would address them separately. Uglybag's analogy to unconscionable product liability disclaimers is creative (and colorfully written), but flawed. In that situation, a single part of the contract in question (the liability disclaimer) is the portion that the plaintiff would argue is unconscionable and at the same time the potion that would deny the plaintiff a right that she desires. On the other hand, what both you and uglybag are implying is that the unconscionableness of a TOS' account suspension clause might somehow affect an entirely separate clause on copyright assignment. If that's at all possible (maybe it is?) but if so, the plaintiff's lawyer would presumably have a much higher bar to meet. You should, of course, ask your counsel for proper legal advice if this topic continues to interest you.

[smarterthanu]

If you are not a lawyer, your only option is to speculate. You might pursue a career of publishing the law in the form of a mutichotomous key as the means to overcome the need for anyone, including lawyers, to speculate.

[nagutron]

If that were possible, someone would have worked it out a long time ago and made a ton of cash. The fact is that case law is ultimately determined as a result of adjudication on specific facts. Without going to court, all even a lawyer can do is speculate. In the meantime, we can sit around making up words like "multichotomous" instead. Looks like it's my turn. Hm... how about "megalotardation"? Seems to suit this whole thread nicely.

[smarterthanu]

Ignorance is no excuse.

[nagutron]

The irony...

[smarterthanu]

The truth.

[nagutron]

Hence the irony.

[smarterthanu]

It is quite common to find legal situations, which make DIY lawyering quite necessary. I recall a few years back while at the local law library the large amount of support material available for DIY divorce. So much optimization had been lent to the effort all that remain were a few simple questions like mutual agreement and no children such that everything else was a matter of filling out a single form – very much like the efficiency of eye surgery in the former Soviet Union via an assembly line. However, except for the effect on reducing attorney fees there is no reason why the method can not be applied to everything else and tightened up as time proceeds.

[nagutron]

You're right about this, as a general matter. Many companies and individual practitioners invest heavily in developing reusable/standardized language. Lawyers are incredibly expensive, after all. It is in everyone's interest to standardize as much as possible (including the lawyers, if you consider the market pressures the work under.) As a result, there are some legal processes that can be undergone with a high degree of predictabliity, even without the participation of a lawyer. Divorce is one of them, as long the divorce is fairly simple. On the flip side, this also means that processes that have not been standardized probably require that fuzzy legal analysis that only human lawyers can currently provide. As I noted before, I'm guessing that the particular situation that you brought up with this Instructable (i.e. filing a DMCA complaint over a piece of content over which you have assigned reproduction rights to another entity via a TOS agreement) falls into the latter category. Or, the boilerplate to issue the DMCA notice is fairly simple, but you are assured no response from Instructables whatsoever. It's just not a settled point of law, and you will likely have to go to court to ultimately find out if your creative legal arguments hold water.

[smarterthanu]

When you read the Digital Millennium Copyright Act it becomes clear that it was written to accommodate individual artists as well corporations. But as for teeth, I know of no responsible publisher who would think about risking the consequences of loosing, even if the DMCA notice was loaded with mistakes. some publishers are no longer at the mercy of the printer's union but all publishers are at the mercy of the writers and artists that submit to them. If writers and artists get word that one of their fellows has been screwed they will screw the publisher, without anything ever going to court. For this reason the DMCA, even with mistakes, serves as a shot across the bow of a publisher's desk that had better not be ignored. I think any responsible publisher will agree and comply with a DMCA take down notice based on this template no matter how screwed up the submitted notice is, while the rest will loose whatever else remains of their shirt should the complaint find its way to court. You can argue that possession is 9/10ths of the law and go to jail for having acquired that 9/10ths by dubious means.