How to Make a DMCA Take Down Notice

1,961

1

64

Published

Introduction: 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 A DMCA Take Down notice includes copies in "unpublished" sections where other users can continue to post comments and replies and receive links to your material by email, even though the material is in the "unpublished" section.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
dmca@instructables.com
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...

Step 2: Next, You Will Need the Name and Address of the Complaining Party.

Under the DMCA provisions it is necessary that the complaining party identify themselves. The complaintant need not be the owner of the copyrighted material but must have the owner's authorization, so the next thing you will need is the name and address of the person who is authorized to make the DMCA complaint. If you are the owner then naturally you are authorized, but you do not have to be an attorney.

You will need to have the following information:

Complainant Forum User Name:_______________________________
Complainant Real Name:_______________________________
Complainant Address:_____________________________
Complainant City:_____________________________
Complainant State:_________________________________
Complainant Zip or Postal code:__________________________
Complainant Country:____________________________________

Its also good to provide a voice and fax number, email and URL, in addition to any other available contact information .




Step 3: Next, You Will Need to Provide the Location of the Infringed Material.

Using the "Make Your Own Shuriken Throwing Stars Our of Paper, CD's, Wood, and Super Sharp Metal" as a publication example (because one of its keywords is a bad, bad, bad word) copy and paste the https://www.instructables.com/id/EYBI2ECVXUERIE21QL/path to a text editor to save it for later use. This is just an example so put the path to the actual publication you want deleted in its place.

Next, copy and paste the title of the publication: "Make Your Own Shuriken Throwing Stars Our of Paper, CD's, Wood, and Super Sharp Metal" and save it too. Be sure its the actual title of the publication you want deleted and not the title of this example by mistake.

This is just an example so stay cool and don't get all bent all out of shape if you are the publication's owner.

Step 4: Next, Its Just a Matter of Filling in the Template With the Right Stuff.


To the Instructables, Inc. designated agent to receive notification of claimed infringement under the Digital Millennium Copyright Act OF 1998 ("DMCA"):

Eric Wilhelm
Instructables, Inc.
1467 Park Ave
Emeryville, CA 94608
dmca@instructables.com
510-653-1643 Instructables

Web Site Take Down Notice

The complainant herein provides notice to the Instructables, Inc. in accordance with the Digital Millennium Copyright Act to remove or disable access to the web pages listed below:

1.) Name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]

1.a) <REAL NAME AND ADDRESS OF COMPLAINANT HERE>

1.b) <INSTRUCTABLES USER NAME HERE>

2.) The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an "information location tool" such as a search engine, the reference or link to the infringing materials [512(d)(3)].

2.a) <https://www.instructables.com/id/<INSTRUCTABLES USER PUBLICATION ID>/

3.) Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].

3.a.) <INSTRUCTABLES USER PUBLICATION NAME>

4.) Statement by the owner that he has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].

4.a) I belief that the Instructables has no legal basis for use of the materials cited above. - <COMPLAINANT REAL NAME>

5.) A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

5.a) The information contained herein is accurate. I am authorized by the author and owner of the above cited material to make this complaint. - <COMPLAINANT REAL NAME>

The Instructables, Inc. is hereafter required to expeditiously remove, or disable access to the material.

What goes where:

Step 5: Next, Fax or Certify Mail a Copy to the DMCA Designated Agent.

If your material is not removed immediately or within a few days or even within 10 days then the site probably figures you won't bother with pursuing litigation. However, don't sweat it if they ignore your notice. Just consult a good intellectual property attorney (usually the most aggressive will be working for a competing web site) and open a bank account in preparation for making a large settlement deposit.

Share

    Recommendations

      • Flowers Challenge

        Flowers Challenge
      • Outdoor Fitness Challenge

        Outdoor Fitness Challenge
      • Microcontroller Contest

        Microcontroller Contest
      user

      We have a be nice policy.
      Please be positive and constructive.

      Tips

      Questions

      64 Comments

      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

      19 replies

      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.

      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.

      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.

      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.

      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.

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

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

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

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

      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.

      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.

      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.

      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.

      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.

      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.

      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.

      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.