There is a lot of misinformation out there about how the DMCA works and what the process is for these take-down notices and strikes. Much of what is described here is specifically looking at the example of music DMCA, but all media is held accountable to the DMCA.
Firstly let’s clarify some of the terminology:
A DMCA take-down notice is a formal, written request to take down & remove allegedly infringing content (ie. content that is not licensed for use by the content creator) can only be issued by the copyrights holder (ie. the actual owner of the infringing content or their acting agent).
A “DMCA strike” or “Copyright strike” is an infraction or warning sent to the content creator by the platform after the platform has received a take-down notice from the Copyrights holder. These are not something the law specifically talks about but platform specific rules & guidelines.
A Content ID Claim is YouTube specific, and not the result of a DMCA take-down notice, but rather the platform’s automated system claiming revenue from the content for copyrights holders who’s media is used without permissions.
Safe Harbor is the term used within the DMCA the describes the protection a platform has from the content created by its users. This is to say, a platform is not responsible for the content created by its users under this protection.
The people involved:
Content Creator – you, the streamer
Platform/OSP – Online Service Provider, such as YouTube, Facebook, or Twitch, even Google, Cox Communications, etc.
Copyrights Holders – the person or persons who own the media
Acting Agent – a term we are using to identify those who represent the copyright holders including groups such as the RIAA or A2IM, trade organizations, or lawyers who represent copyrights holders on their behalf
What is the goal of the DMCA law?
To protect platforms. One of the main purposes of the DMCA is that it protects the platform from the content created by its users under what is called “Safe Harbor” protections. Under these, the platform is not liable for the actions or content of its users. So this is to say that Twitch, Facebook, Twitter, YouTube, TikTok, etc. are not responsible for the content posted by their users.
The short version of the process:
1) A content creator uses media may or may not have permission to use.
2) The copyrights holders of the media notify the platform of the allegedly infringing use of their property in the form of a DMCA take-down notice.
3) The platform is required to notify the content creator that a DMCA take-down notice has been made, and to take down the allegedly infringing content as long as it meets the requirements of the DMCA take-down. From there, it is up to the platform to issue a strike to the content creator.
4) The alleged infringing content must be removed within a timely manor.
5) If the content creator believes the claim to be false, in bad faith, or they have a valid license they can then submit a counterclaim to the platform or reach out to the copyrights holder directly. If the counterclaim is valid, then the platform needs to restore the content within 10-14 days.
6) If the copyrights holders or their acting agents feel that the counterclaim is not valid or in bad faith, they can then pursue a lawsuit if the allegedly infringing content has not been removed. The platform will leave the content on the platform for the duration of the lawsuit, pending the final decision.
The copyrights holders can sue the content creator at any point in this process; for music, this can result in reparations (similar to fines) from tens of thousands of dollars to multi-millions. These reparations can be for the publishing and recording, per use.
If the platform does not remove content creators who repeatedly use media they do not have permission to use (i.e. repeat infringers), then the platform can lose Safe Harbor status and could be found liable for secondary infringement these infraction (meaning they could also be sued and fined for these infractions).
The long version of the process:
Copyrights holders and their acting agents will often use tools such as PEX, Audible Magic, or ACRCloud to detect when and where their content is used. These tools do not issue out automated DMCA take-down notices. There must be a person to make a good faith review for fair use before you issue the take-down notice.
But wait, doesn’t Audible Magic mute content on Twitch?
Yes. Twitch has outsourced their content management. Things that are flagged by Audible Magic are muted on Twitch. This is an automated process. Mutes, however are not DMCA take-down notices. Not all rights holders submit their music to Audible Magic — meaning that there is unlicensed music that will not be muted on Twitch. Some music in Audible Magic is licensed for use through specific music providers/players, but will still mute on Twitch.
YouTube, however, has its own Content ID system. When unlicensed music is flagged on YouTube, the content is “claimed” — and any and all revenue from that video can then split between the copyrights holders and the content creator. This does not mean you cannot receive a DMCA take-down notice on YouTube — you still can. YouTube Content ID claims are not the same as copyright strikes. You can read more about this further down, or read more from YouTube here.
Rights holders are less likely to license their music for use on YouTube because they make more money via the Content ID System than by licensing their music due to the lack of the market place for music on the platform.
Copyright holders have to submit their media to Content ID and sets to automatically claim. Copyrights holders can also choose to manually claim — notifying them of allegedly infringing use and letting them choose within 30 days to issue a take-down. This then allows them to “claim” a portion of the content creator’s revenue should their media be used without their permission. The rights holders also have the right to block a video which has their material, or block certain platforms. You can read more about Content ID here. Copyright holders
When a copyrights holder or their acting agent find that their media has been used without their consent and their permission, they can then issue a DMCA take-down notice.
To issue a take-down notice, the rights holders must assert that:
1) they own the copyright to the media and/or have the right to issue a take-down notice of media you license;
2) that the claim is being made in good faith and is not exempt via an acceptable exception (think news or the very rare “fair use”);
3) that the media is capable of being infringed online (ie. text, images, pictures, video, music, audio, etc.)
After all of that has been established, the copyright holder or their acting agent must then contact the content creator — either directly or through the platform to the designated DMCA agent in the manner they request.
If there is not a form on the platform, then your notification must:
1) be in writing (hardcopy or digital);
2) be signed by the copyright owner(s) or agent(s);
3) identify the original copyrighted work(s) that have been infringed;
4) identify the content that is infringing your copyrighted work(s);
5) include contact information of the rights holders or agent;
6) include a statement that the rights holders complaint is in good faith;
7) include a statement that the information in the notification is accurate; and
8) include a statement that under penalty of perjury you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
And let’s focus on that last part just for a moment: anyone who makes a false copyright claim is liable of perjury. There are legal repercussions for creating false claims.
If your claim does not meet all of those things, the platform might not act on your behalf.
Both Twitch and YouTube will notify users of DMCA take-down they have received from the user’s content. Twitch issues a “DMCA strike” and YouTube will issue a “Copyright strike.”
Twitch’s DMCA notifications are handled by a team, and the review process is not automatic and only looks to make sure that the notice meets the requirements of the DMCA. If they believe the copyright holder’s claim meets the requirements, Twitch should then notify the content creator and will remove the content. There are no public statements from Twitch regarding how many strikes a user can have before they are removed from the platform.
You can read Twitch’s DMCA Guidelines here.
YouTube’s copyright strikes are not the same as their Content ID claims. Once YouTube receives the formal DMCA take-down notice, they will remove your content and notify you that you have received a take-down, using the phrase “Video taken down: Copyright Strike.”
You can read more about copyright strikes here.
If you are issued a DMCA take-down notice (or strike) and you believe it to be false or in bad faith — you can then counterclaim.
A counterclaim, or a Counter Notice, should be submitted to the platform after the DMCA take-down notice (or strike) has been submitted and after the infringing content has been removed. So yes, you still need to remove the content for the time being — this will be done by the platform. A counterclaim is not a defense against the initial notice nor is it a means to delay the process of the initial notice. After the platform has received the counterclaim and it is deemed valid, they have 10-14 days to re-activate or allow access to the claimed infringing content. If they fail to re-activate the content, the content creator could then sue the platform.
To counterclaim, the platform will require:
1) a written notice (hardcopy or digital)*;
2) identification of the material that has been removed, and the location at which the material appeared before it was removed/disabled (i.e. Links and timestamps);
3) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located;
4) a statement that under penalty of perjury you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
5) your full legal name, email address, physical address, and telephone number; and
6) your signature.
*For Twitch, you will need to submit the counterclaim to their DMCA agent via email or postal mail. You can read about the requirements here. For YouTube, you can submit a counter notification from your dashboard in YouTube Studio.
“If your counter notification meets all legal requirements and has a clear explanation of how you have the rights to the removed content, we’ll forward it to the claimant. The claimant will have 10 business days to provide evidence that they’ve initiated a court action to keep the content down. This time period is a requirement of copyright law, so please be patient.”
YouTube Help
Let us repeat: Whether the claim is valid or not, if you receive a DMCA take-down notice, the platform is required to remove that content. If it is proved in bad faith or mistaken, then after a period of 10-14 days, that content can be restored.
If you receive a DMCA take-down notice, and either do not counterclaim or it is found to be a valid claim, you must remove the content. Failure to remove the content could result in a lawsuit and makes you liable to fines of up to $150,000 per use per track on both the composition and recording of the music — which can be up to $300,000 per use per track. One stream could have multiple infractions.
What do you mean by composition and recording?
Music has two main copyrights: master and composition; and each have their own set of rules. Sometimes they are owned by the same parties, other times it might be varying persons or parties. You can receive a DMCA take-down for either or both and from multiple parties based on the rights needed for streaming and whether or not you have said rights. (Complicated? We know. Music licensing is not simple.)
What happens if you receive more than one DMCA take-down notice?
The DMCA also covers what are known as “repeat infringers” — bad actors who repeatedly use unlicensed media of copyright holders. For the platform to maintain their Safe Harbor status, they must have a repeat infringement policy. There is nothing in the law stating how many violations constitute repeat infringement, only that these bad actors must be removed from the platform.
Platforms may very on how they choose to handle this. On YouTube, after your first infringement, you will be required to complete their Copyright School. After 3 strikes, your account and any associated channels, are subject to termination, your video content will be removed, and you will be prevented from creating new channels.
However, if it is found that their users are repeatedly breaking the law — repeatedly using unlicensed media — and the platform is not removing those users from the platform, then the platform can lose those protections. If a platform loses Safe Harbor protections, they can then be found liable for secondary infringement of the content created by their users. The platform can then be sued and fined per infringement.
Important factors to remember:
- DMCA take-downs can only be issued by the copyrights holders or representatives who have the right to act on behave of the copyrights holders.
- If a platform issues you a DMCA strike, the platform must remove the content regardless of whether you are going to counterclaim or not.
- Issuing false claims is illegal and you can be held legally liable. The same thing holds for false counterclaims.
- If the platforms do not comply and enforce the DMCA, then they too can be liable secondarily for infringement due to their users’ alleged actions.
- If you do not have permission to use content from all parties involved, you are putting yourself at risk of being sued.
- The DMCA take-down is not intended to be a punishment to the content creator, but rather a protection for the copyrights holder.
0 Comments