Hit with a Takedown Notice? Here's Your Next Move!

With the large amount of content we consume and generate daily, it's no secret that copyright infringement cases are becoming increasingly common. Sometimes, you may infringe on someone else's copyright by mistake. Maybe you innocently reposted someone else’s photograph on Instagram®, unaware that it would lead to repercussions. And sure enough, you receive a takedown notice alleging copyright infringement.

The notice is a formal request for you to remove or disable access to content infringing upon the alleged owner's copyright. Such notices are regulated by the Digital Millennium Copyright Act (DMCA) and may be a prerequisite for litigation.

The Digital Millennium Copyright Act (DMCA) provides the legal framework governing takedown notices. It is a legal provision designed to protect the rights of copyright holders while balancing the need for free information flow and the exchange of ideas on the internet.

So, what should you do after receiving a takedown notice?

While it can be stressful, it is not the end of the road. Here is a rundown of the steps you should take in the aftermath of a takedown notice alleging copyright infringement:

Step 1: Understand the Takedown Notice

Depending on the context of the infringing content, you may receive the takedown notice in one of two ways:

• Direct Contact: If the copyrighted content is hosted on your own website, the copyright owner may send the notice directly to your email or physical mail address.
• Through a Service Provider: If the infringing content is on a platform you're using (like a blogging site, social media, or video-sharing service), the copyright owner may send the takedown notice to the service provider. The provider will then inform you, typically via email.

Whichever the case, the immediate steps are crucial once you receive a takedown notice. The first thing is to review the message and understand which content is alleged to be infringing. The notice will specifically address the exact material and the basis of the infringement.

Step 2: Assess the situation

Sometimes, takedown notices can be mistakenly sent, or they can be sent as part of a dispute. Hence, after understanding the notice, your first course of action is to evaluate the material in question. Here are a couple of probing questions to guide your assessment:

• Is the content indeed yours?
• Did you obtain the content with permission or a license?
• Could the notice have been mistakenly sent?
• Are there strong grounds for the claim of intellectual property infringement?

As you look over your situation, it's smart to brace for the potential mess that could unfold if things get worse. Under the DMCA, copyright owners can send out takedown notices even if they haven't officially registered their work with the USPTO. But, to move forward with a lawsuit for copyright infringement, the copyright needs to be registered.

Here's where the tricky part comes in: if your dispute turns into a lawsuit and you haven't registered the copyright yet, they have to start that process, which can drag on for months. Conversely, DMCA rules require that issuers file a lawsuit within fourteen days of getting a counter-notice or if there's non-compliance. Understanding such nuances is essential as you weigh your options.

Step 3: Talk to your attorney

Next, you should consult your attorney specializing in intellectual property law. A good attorney will analyze the specifics of your case and offer guidance on the way forward.

Step 4: Remove or Disable Access to the Alleged Infringing Content

If you agree with the notice or are unsure and want to prevent any further legal complications, the best way forward is to heed the warning and take down the material.

Step 5: Respond to the Notice

The specific platform where you posted the material alleged to be infringing may demand a response to the notice. A good example is YouTube, which requires a response to DMCA takedown notices. Consult your attorney on the appropriate response and follow the platform's response procedures.

Step 6: Consider Filing a Counter Notice

If you believe the content is originally yours or you have a basis for fair use, you can file a counter-notice. It's best to be prepared before going this route, as it may lead to legal proceedings.

Conclusion

In conclusion, if you find yourself on the receiving end of a takedown notice, it's important to remain calm and take methodical steps. Start by understanding the specifics of the notice, then assess the content in question. Consulting with an attorney specialized in intellectual property law is crucial for informed guidance.

Depending on the situation, you may need to remove the content to avoid further issues, respond appropriately to the platform's procedures, and possibly consider filing a counter-notice if you have grounds to dispute the claim. Navigating this process with caution and legal insight is key to resolving copyright infringement allegations effectively.

Are you wondering about any of the issues mentioned above? Please email us at info@wilkinsonlawllc.com or call (732) 410-7595 for assistance.

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