At one point or another, every online creator will face the consequences of the Digital Millennium Copyright Act. This well-meaning law passed in 1998 was meant to protect copyright holders in the face of an expanding internet. Today, the DMCA process is the basis for the rules we follow for using copyrighted material on platforms like YouTube and Twitch. To understand why and how this works, we need to explore the DMCA’s meaning, come to understand what a DMCA takedown is, and break into the DMCA process a bit.
Thanks to community guidelines, your chances of getting a DMCA takedown are slim. But that doesn’t mean the DMCA process isn’t going to impact you or the content you create. Before you upload copyrighted content, even if it’s fair use, sit back and learn about the DMCA.
What is DMCA?
First and foremost, let’s define DMCA and learn what necessitated it. In 1998, the United States Congress passed the Digital Millennium Copyright Act. In theory, the DMCA was supposed to fix the gray areas in U.S. copyright law for online content. It and the DMCA process had three main goals:
1) Protect online service providers when their users commit copyright infringement. This is where the dreaded DMCA takedown notice system was born. Takedown notices are a way for site owners to protect themselves from user copyright violations. It also allowed copyright owners to report violations to these businesses.
2) To encourage copyright owners to expand access to their work in digital formats by providing greater protections against unauthorized use.
3) Making it illegal to provide false copyright information, such as the names of authors and copyright owners, or to remove copyright information that’s legally required.
In 2020, Congress passed the Copyright Alternative in Small-Claims Enforcement (CASE) Act. This created the Copyright Claims Board in the U.S. Copyright Office, which is an alternative forum for the federal court for creators and users. If you feel a claim has been misrepresented or you need to file a counter-notice, in theory, the board is there to help.
What is fair use?
“As written, a DMCA violation is using copyrighted material outside the context of “fair use.” Fair use is a doctrine of the U.S. copyright statutes that allows you to use limited sections of copyrighted material. Typically, fair use will enable you to use copyrighted material for commentary, criticism, news reporting, and scholarly reporting.
The DMCA process does allow for usage under certain guidelines. You can use copyrighted content for many non-commercial purposes or to create transformative works. However, this requires that your work doesn’t impact the value of the original content.
That means you can make YouTube videos using copyrighted material about your favorite movies, music, or books. In theory, you can make transformative remixes of your favorite songs.
Interestingly enough, with photography, the rules are more complicated. You can’t post a snippet of a photo for critical analysis. Many photographers and artists post their work as Creative Commons, which allows use with proper crediting. However, many more don’t. Make sure you research the usage rights of any photo before using it.
What is a DMCA violation?
So, what is it that leads to a DMCA takedown? A DMCA violation is, on paper, any unauthorized use of someone else’s copyrighted material on a digital platform. By law, your ISP and the online services you use must comply with all requests that DMCA violations are taken down. This allows them to maintain their limited liability for hosting the violating material in the first place.
To meet their obligations for limited liability, ISPs must remove the offending material and contact the account holder who hosted it. The DMCA process is annoying but won’t destroy you unless you’re breaking the law.
What are DMCA requirements for a DMCA takedown notice?
A DMCA takedown notice is a legal request to remove copyrighted material from a site or host. Let’s go over a quick breakdown of this part of the DMCA process.
The DMCA takedown process is legally required to have six items on a claim.
1) Signature of the copyright owner
2) Identification of the copyrighted work
3) Specifics about which portion of the work’s copyright was violated
4) Contact information of the copyright owner
5) Statement that permission was not given for the copyrighted material to be used
6) Statement that the content of the DMCA takedown notice is accurate and the signee has the authority to act on the part of the copyright holder
What is a DMCA takedown, and what happens if you ignore a DMCA takedown notice?
To define the DMCA appropriately, it’s important to understand its weight. You may ask yourself, “Do I have to respond to a DMCA takedown notice?” The answer is simple. Yes, you do, especially if you don’t have a lawyer. You can send back a counter-notification if you get a DMCA takedown to whoever sent it to you. If it’s your ISP, you will contact them. If it’s the copyright holder or their lawyer, you will send the counter-notice to them.
The important thing is that you respond immediately so you don’t find yourself on the receiving end of a copyright infringement lawsuit.
If you ignore a DMCA takedown notice, you open yourself up to a copyright infringement lawsuit from the rights holder. You can also face consequences from your ISP or the law if things progress far enough. Losing a lawsuit is expensive. However, facing legal consequences from the government for breaking copyright law is even more expensive.
What is the penalty for DMCA?
So, what happens if you’re hit with a DMCA takedown? If you’re found legally liable for a DMCA violation, there’s a good chance you’ll be able to settle the issue by removing the copyrighted content. The penalties are brutal if you ignore a DMCA takedown notice and it goes to court.
The minimum fine for a DMCA violation proven in a court is $750 per downloaded file, with the criminal penalties being even harsher. You can face up to $250,000 in fines and five years in prison.
However, as a content creator posting on platforms like YouTube, Twitch, and TikTok, you most likely will never get that far. These platforms understand the DMCA’s meaning and purpose, and protect themselves from DMCA law by already having robust copyright rules. We would be impressed if you manage to violate them so much that you get a DMCA takedown before they strike you.
How is a DMCA takedown notice different than a YouTube copyright strike?
You’ll notice we keep saying “in theory.” The rules may be public, but that doesn’t mean they’re consistently enforced or that companies haven’t found ways to make them less expensive for them to deal with.
Part of understanding the DMCA process is knowing what does and doesn’t fly. Even creators who follow all of the posted rules will find themselves victims of a DMCA violation notice at some point. Especially if you’re on YouTube or Twitch, which feature a great deal of automatic moderation.
Anyone who has made content featuring copyrighted material on YouTube has experienced the dreaded copyright strike. Given how much content has been uploaded and gets uploaded to YouTube every day, they can’t deal with every individual strike request. Accordingly, the rules you’ll find on YouTube and other streaming sites are sometimes more brutal than the DMCA, even if the punishment is less severe.
Make sure you understand the copyright rules of any platform before posting content on the service. For example, YouTubers aren’t just beholden to the DMCA. They’re beholden to YouTube’s content standards which are much vaguer.
Avoiding misusing a protected DMCA video is pretty straightforward. According to YouTube, “Creators should only upload videos that they have made or that they’re authorized to use. Users should not upload videos that they didn’t make or use content in videos that someone else owns without necessary authorizations.”
What is the difference between a copyright strike or copyright claim and a DMCA copyright violation?
Unfortunately, the DMCA process can be further complicated by auxiliary means. A copyright strike happens when you’re reported for a violation of a service’s policy around the DMCA. However, it isn’t a legal DMCA threat itself. Rather than come after you through your ISP, copyright holders can report violations directly to the platforms you use. In many ways, this is worse, because it allows for the weaponization of DMCA by getting platforms to voluntarily be more aggressive than the law asks.
A copyright claim or strike is where a channel owner is reported to YouTube’s Content ID system for a possible violation. Rather than immediately putting you in legal trouble, these violations allow you to correct violations with limited penalties. Again, in theory.
Your first copyright claim will not negatively impact your channel, but repeated violations can have consequences. These punishments go up to losing your channel entirely, so take them seriously and read up on the rules of each platform you use.
A YouTube copyright claim, for example, can let the copyright holder claim your revenue on the video, place ads on your video, or even restrict where your video can be shown. YouTube says it allows you to fight copyright strikes, but your actual experiences will vary. Channels large and small have found themselves victims of overly aggressive copyright strikes.
These strikes are annoying, but you don’t need a lawyer for them. It’s always better to get a copyright strike over an actual DMCA takedown notice.
How do I resolve a DMCA violation?
So, how do you avoid or resolve a DMCA takedown or flag? Thankfully, in most instances, resolving a DMCA violation is as simple as removing the copyrighted materials and informing the copyright holder. During the height of the file-sharing days, record labels or movie studios would occasionally send legal takedown notices to ISPs and go after pirates. Today, you should be fine unless you’re sharing an ocean of copyrighted material.
Just make sure to pay attention to your mail and honor any legal requests you get. Ultimately the biggest threat to your channel and content isn’t the DMCA, but the way platforms choose to guard against its legal threats. Ensure you’ve read your user agreements on any platform you use professionally.
You don’t want to lose your hard-earned followers just because you needed to make a sassy video takedown of a 20-year-old Sugar Ray video. The DMCA process is easy to deal with once you understand the basics. Just be smart.
