by Zachary Strebeck
Perhaps sending a takedown notice isn’t the proper first course of action.
In a previous post, I detailed the law, the process and the contents of a letter that should be sent when someone is infringing on your copyrighted content. It has been brought up to me since then that, perhaps, sending a takedown notice isn’t the proper first course of action. Often, this is the case, for the following reasons.
Why shouldn’t you start with a takedown letter?
• You could work with the infringer, not against them, in order to benefit both of you
• The cost of enforcement is more than the detriment of the infringement
• The infringement is actually benefiting you
Why should I deal with someone who is stealing my content?
There are different types of “stealing.” In some cases, there is outright theft, such as when someone uses the text of your blog post as their own. There isn’t a whole lot to be done there. However, other cases are not so clearcut. For instance, when someone is doing a “Let’s Play” video of your game, many company’s first reaction is to take it down. However, there could be better options. The video may actually be attracting new buyers to your content. Take, for example, videos of a game like Crusader Kings. The game is a little difficult to get into, so watching people play the game can actually break through the difficulty and get more people into it. The same could be said for games like Dark Souls.
A better strategy, in many cases, is to work WITH the “infringer” to the benefit of both of you. Large numbers of YouTube views can generate revenue, get eyeballs on the product and generally improve the visibility of the IP. A licensing or co-branding agreement could be a boon to all parties involved.
So, rather than reaching out first with a takedown that can damage a relationship before it has even begun, making the first move toward a beneficial relationship can be useful in a lot of cases.
Sometimes, you need to go to war, though:
In these instances, it can be useful to strike first with the “nuclear option.”
Understandably, however, there are many instances where the infringing use is damaging either to the reputation of the IP-holder, or the IP itself. I’m not talking about valid criticism, but instances where the IP is being used in a manner that puts it in a poor light. In these instances, it can be useful to strike first with the “nuclear option.”
I’ve provided the following letter template as an informational example for what should be included in a DMCA takedown notice. However, you should contact an attorney prior to sending to ensure that you have the rights that you are claiming and that the information in the letter is complete and correct. An attorney may also be able to help you examine your options in all of the above situations, such as drafting a licensing or royalty-sharing agreement or sending a cease & desist letter.
For a copy of the template, download this pdf - DMCA_Takedown_Letter_Sample.
Zachary C. Strebeck, Attorney at Law
The information contained in this material is for informational purposes only.
Your download and reading of this material does not establish an attorney-client
This information is not a substitute for a private, independent consultation with an
attorney selected to advise you after a full investigation of the facts and law relevant
to your matter.
Users of this material are advised to do their own due diligence when it comes to
making business decisions and all information that has been provided should be
independently verified by your own qualified professionals.
Zachary C. Strebeck, Attorney at Law
March 17, 2014
[Sender’s Phone Number]
[Sender’s Email Address]
RE: DMCA Copyright Infringement Report
To whom it may concern:
My name is [name], the [title] of [company name]. The following information is
presented for the purposes of removing web content that infringes on our copyright
per the Digital Millennium Copyright Act (“DMCA”). This notice constitutes an official
notification under Section 512(c) of the DMCA.
Under that statute, you are required, as a service provider, to remove or disable
access to the infringing materials specified below upon receipt of this notice. Under
the safe harbor provision of the DMCA, you are given immunity from liability for
hosting the infringing content, provided that you quickly rectify and investigate the
copyright infringement. Failure to do so can result in the loss of this statutory
The content that is being infringed is [specifically describe content].
The infringing copy of this content is located at [specific location of content on ISP’s
I have a good faith belief that the use of the copyrighted materials described above
on the allegedly infringing web pages is not authorized by the copyright owner, its
agent or the law. Under penalty of perjury I certify that the information contained in
this notification is both true and accurate, and that [I am the owner or I have the
authority to act on behalf of the owner] of the copyright(s) involved.
For further inquiry, I may be contacted at the above address, by phone or by email.
[Sender’s Name, Title]
And, finally, I have a humble request. I’m trying to expand my Twitter reach, so if you like this or any other post, please tweet out the link! Thanks! My Twitter handle is @ZStrebeck