"It is not in the service provider's interest to help you submit a compliant DMCA takedown. As such, copyright owners should consider drafting their own notices, or having an attorney draft one, and sending them to the agent shown in the DMCA Agent Directory."
Intellectual property owners frequently face difficulties getting their work removed from websites run by companies like Google and Apple, and other service providers where users upload infringing material. The service providers may provide forms and contact information for an intellectual property rights owner to contact when infringing material is found on their site. But, even strict adherence to the service provider's procedures often fails to result in the removal of the infringing material. This leaves IP owners frustrated by a seeming inability to remove infringing content from the Internet.
When it comes to copyright infringement, however, U.S. Copyright law provides a method to deal with copyright infringements posted by users on a website. Under the Digital Millennium Copyright Act (DMCA)'s safe harbor provision, the liability of service providers that allow users to upload content to be sued for copyright infringement is limited if, and only if, the service provider complies with its procedures. Under these procedures, the service provider must designate a DMCA agent. If the DMCA agent receives a compliant DMCA "takedown notice," the website must expeditiously take the noticed material down. If the website takes down the infringing content expeditiously, then the website remains in the "safe harbor" of the DMCA, immune from any claim of copyright infringement. If they do not take the noticed material down expeditiously, the service provider departs from the safe harbor and there is no immunity under the DMCA.
Our investigation of various websites that host content that is uploaded by users and seek to remain in the DMCA "safe harbor," has revealed that the procedures that service providers want you to follow may be different than the DMCA's notice-and-takedown procedure. As such, when a copyright owner follows a service provider's procedures, they may not be actually submitting a compliant DMCA takedown request. Again, the service provider's position within the "safe harbor" is secured if a proper DMCA takedown is not submitted. This article explores the specifics of navigating the DMCA and looks at some service providers who may be leading copyright owners down a path differing from the DMCA's notice-and-takedown procedure, maintaining their position in the DMCA's "safe harbor.".
DMCA Takedowns
DMCA Takedowns are a tool copyright owners can use to take infringing material off of websites where users upload material. Without the DMCA, websites like YouTube would frequently face liability for copyright infringement. Congress sought to encourage the development of such online platforms, but at the same time it wanted to protect the rights of copyright holders. As part of this balancing act, it created the "safe harbor provision" of the DMCA. Service providers like YouTube generally cannot be sued for copyright infringement due to material uploaded by its users. However, this protection is finite. The DMCA also includes a takedown-and-notice system to enable copyright holders to protect their works from being infringed on their platforms.
It is a simple process:
- The copyright owner sends a compliant DMCA takedown notice to the designated DMCA agent.
- The service provider takes the listed material down expeditiously and notifies the user.
- The user sends a compliant counter-notification
- The copyright owner files a lawsuit, if they do not the material gets put back up.
This strikes a balance between the rights of copyright owners, the economic concerns of the service providers, and the rights of the users to express themselves and do business legally. Service providers are not required to police the material posted on their websites, but they must take infringing material down expeditiously when a copyright owner gives them proper notice. If a user feels that the material is not protected by copyright laws, they can provide a counter-notice wherein they agree to jurisdiction and service in U.S. courts. If a counter-notice is received, the onus is then on the copyright owner to either allow the content to be maintained on the website or take action to sue the user that posted the material.
DMCA Compliant Notices
A compliant notice requires:
- A physical or electronic signature of a person authorized to act on behalf of the copyright owner;
- An identification of the copyrighted works;
- An identification of the material claimed to be infringing;
- The copyright owner's contact information;
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
The notice must be sent to the service provider's DMCA agent. The agent can be found on the Copyright Office's website.
Procedures Given by Service Providers Which are Not DMCA Takedowns
Instead of directing copyright owners to submit a DMCA compliant notice, service providers frequently direct users to upload information that may be useful to judge whether a copyright violation has occurred but is not compliant with the DMCA. As such, the websites are not required to take down the infringing material.
Some service providers provide contact information that differs from their designated agent. For infringing material on iCloud, Apple directs users to email "copyrightnotices@apple.com." But, on the Copyright.gov website, the actual designated DMCA agent is copyrightagent@apple.com. If a copyright owner follows the Apple procedure, they have not submitted a compliant DMCA takedown because they did not comply with all the requirements of the DMCA; that is, they did not provide the required information to Apple's correct DMCA agent.
Similarly, Zazzle's designated DMCA agent is "legal@zazzle.com," with an address in Menlo Park, CA. But its copyright guidelines tell copyright owners to contact "copyright@zazzle.com" and an address in Reno, NV. Again, like Apple, Zazzle is directing copyright owners to contact someone other than the proper designated DMCA agent. Zazzle, therefore, remains in the DMCA "safe harbor."
Service providers may also provide forms that lack the information that a DMCA takedown notice requires. For instance, Apple directs users to fill out dispute forms depending on what service the material is found on.. These dispute forms lack key requirements of a proper DMCA takedown notice including, for example, the identification of the works, the identification of the infringing material, and the statements required for a DMCA takedown.
It is not in the service provider's interest to help you submit a compliant DMCA takedown. As such, copyright owners should consider drafting their own notices, or having an attorney draft one, and sending them to the agent shown in the DMCA Agent Directory.
Improper Responses to DMCA Takedowns
Once a notice substantially containing the information required in a proper DMCA takedown notice is received by the service provider, that service provider must take the material down expeditiously if it wishes to remain in the "safe harbor." 17 U.S.C. 512(c). The statute does not provide a definition of what expeditious means, and courts have reviewed this on a case-by-case basis. Viacom Int'l v. YouTube, Inc., 718 F.Supp.2d 514, 520 (S.D. N.Y. 2010). Courts have noted that "five days sounds rather expeditious to the court." Long v. Dorset, 369 F.Supp.3d 939, 947 (N.D. Cal. Feb. 22, 2019). Eighteen to twenty-three days has been found not to be expeditious. Feingold v. RageOn, Inc., 472 F.Supp.3d 94, 102 (S.D. N.Y. 2020).
While the time period the takedown must occur in is not clear, what is clear is that the material must be taken down. The following activities, which are common among service providers, are not expeditious removals:
- A request to fill out another form.
- A request to contact them via an email address other than their designated DMCA agent's address.
- A request to follow the service provider's intellectual property policies
- A request to discuss the infringement with the user.
- A request for more information.
- A request that you prove the infringement to them.
If service providers do not take the infringing material down expeditiously after receiving a notice, they are outside of the DMCA's safe harbor. At that time, they are now copyright infringers themselves.
Advocate for Yourself
Service providers are not in the business of helping you make them lose protection. To get your work off their sites, it is likely a good idea to follow the procedures Congress supplied instead of the ones they chose for themselves.
Originally published by IPWatchdog, 2 July 2025
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
