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“How To” on Cease & Desist and DMCA Takedown

How to send Cease & Desist and DMCA Takedown letters to sites infringing your copyright

DISCLAIMER: BY USING THIS GUIDE YOU MUST AGREE THAT YOUR USE OF ANY INFORMATION CONTAINED HEREIN IS DONE AT YOUR OWN RISK. OUR FIRM IS NOT LIABLE FOR ANY DAMAGES THAT RESULT FROM YOUR USE OF THE FOLLOWING INFORMATION.  THIS GUIDE DOES NOT CONSTITUTE LEGAL ADVICE. USING THIS GUIDE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. IF YOU WISH TO RECEIVE LEGAL ADVICE YOU SHOULD HIRE AN ATTORNEY WHO WILL BE ABLE LISTEN TO YOUR INDIVIDUAL SITUATION AND CATER HIS/HER ADVICE TO YOUR SPECIFIC NEEDS.

This “how to” guide is meant to provide guidance when you have found your copyrighted material is being misused on the internet.   While most people think of contacting the site that is directly infringing their work and demanding it be taken down, there is actually more you should do to ensure that you are thorough in protecting your rights.  Three entities should be contacted for every instance where you find a site is infringing your work.  These include:

  1. The OWNER of the infringing site;
  2. The HOST of the infringing site; and
  3. Any SEARCH ENGINES that are linking to the infringing site.

Letter 1: Cease and Desist Letters

There are two potential recipients of a Cease and Desist Letter for any one website that is infringing your content.  Both the owner of the site and the server of the site may be liable to you for copyright infringement (though neither may be liable).

Step 1: Finding the owner and server for the site.

  1. Go to the site http://www.domaintools.com/ and enter in the address for the infringing site.
  2. At the bottom of the page there should be information listing the owner of the site that looks like the following:
  1. To find the server, scroll up on the same page until you find the section listed as “Server Data”.
  1. Click on the “Whois” link and you should be brought to a new page with the contact information for the server.

Step 2: Determining who should get a Cease and Desist Letter.

  1. If your content has been infringed by the owner of the website (or one of the owner’s employees) then the owner of the website should get a Cease and Desist Letter.
  2. If, however, the owner allows third parties to post content on the site and it was one of these third parties that has posted the material infringing your copyright, then it is possible that the owner of the website should not receive a Cease and Desist Letter, rather they should be sent a DMCA Takedown Notice (discussed in the next section).  Sites like YouTube or Facebook rarely publish their own content, and so it would be much more likely for them to receive DMCA Takedown Notices as hosts of third-party content.
    1. If the infringing content was posted by a third party and is merely being hosted by the site you must determine if the site has a registered DMCA Agent.  If they have a DMCA Agent the website or its owner will be listed here: http://www.copyright.gov/onlinesp/list/index.html.  If they have a DMCA Agent they should receive a Takedown Notice.  If not, they should receive a Cease and Desist Letter.
    2. Go to http://www.copyright.gov/onlinesp/list/index.html again to see if the server has a DMCA Agent.  If so, then they should get a Takedown Notice.  If not, they get a Cease and Desist Letter.

Step 3: Preparing your Cease and Desist Letter(s).

  1. Here is an exemplary Cease and Desist Letter:

VIA USPS Return Receipt Requested Mail xxxx-xxxx-xxxx-xxxx-xxxx

And Facsimile to 555-555-5555

[Insert name and address of recipient]

RE: Cease and Desist Letter regarding Copyrighted works owned by [your name]

Dear [recipient’s name],

I am [your name], the copyright owner of [identify works being infringed – include copyright registration number if works are registered].  You, [recipient’s name], are the [contact/server – pick appropriate one] for the site [infringing site URL] as shown in Exhibit 1.  Exhibit 2 illustrates your infringing use of my work through screenshots taken from the following URL:

[infringing URL]

My intellectual property is an extremely important, valuable asset, and I am prepared to take the necessary steps to protect my interests and seek appropriate damages.

Pursuant to my exclusive rights as the copyright owner of this work, I demand that you immediately remove from the internet and destroy all copies of my works in your possession.  Additionally, I demand compensation in the amount of $10,000 for your blatant and willful infringement of my copyrights.

If I have not received your affirmative response by [date] then I will pursue legal action to ensure my rights are protected.

Furthermore, this communication is intended for settlement purposes and is without prejudice to and shall not affect, in any manner, the rights, claims, remedies, actions or causes of action which I have, had or may have, at law or in equity, including my right to be reimbursed for all legal fees associated with this matter.  This letter is inadmissible in any future proceeding pursuant to Federal Rule of Evidence 408.

Please be further advised that I reserve my right to commence and prosecute to completion, without further notice, any and all actions or proceedings I feel is necessary and/or appropriate.

Thank you for your immediate attention to this matter.

Respectfully,

[your signature]

[your name]

[your address]

  1. Exhibit 1 should be printouts of the contact information you obtained from domaintools.com.  For letters to the server you will need a printout of a page for the site and the server.  For letters to the owner a printout of the contact info for the site is sufficient.
  2. Exhibit 2 should be printouts of the website showing your copyrighted material.
  3. If you have information showing that you are the owner of the work you are claiming is being infringed you should include this as an exhibit also.
  4. Unregistered works – If your work is not registered with the copyright office at the time of infringement it is unlikely you would receive much in the way of damages even if you could prove the site violated your copyright.  As such you should keep your claim for damages fairly low, but high enough so that the recipient knows you are serious.  Even if you are unable to collect damages, the infringer may be scared enough to remove the infringing work where otherwise they would have ignored your request for removal.
  5. Registered works – If your work is registered, you are able to collect up to $30,000 per work, and potentially more.  As such the infringer runs a lot greater risk by ignoring your demands.  This gives you the power to demand more than if your work was unregistered.  Your case will also be more attractive to an attorney should you decide to litigate.
  6. Websites and servers in foreign countries – It is much more complicated and expensive to sue a foreign person than it is to sue someone within the US.  As such you have a weaker threat of litigation, especially if the recipient is in country that is not a signatory of the Berne Convention.  As such, while it may be worthwhile to send a Cease and Desist Letter in the hopes that they will be scared into removing the infringing content, sometimes the only recourse you will have is to have Search Engines remove those sites from their search engine responses (this will be discussed in the next section).

Letter 2: Digital Millennium Copyright Act (DMCA) Takedown Notices

  1. These Takedown Notices are sent to:
    1. Website owners when a third-party has posted the infringing content and the owner has a DMCA Agent,
    2. Website servers that have a DMCA Agent, and
    3. Search engines that have a DMCA Agent.
    4. You should not be sending both a Takedown Notice and a Cease and Desist Letter to the same recipient.
    5. There are strict statutory requirements that must be followed when sending a DMCA Takedown Notice.
    6. You must send a letter to the site, server, or search engine including the following:
      1. Your signature.
      2. Identification of all the copyrighted works that are being infringed.
      3. The URLs to all infringing sites, and if necessary, where to find the infringing content on the URLs.
      4. Your contact information.
      5. The following statement: “I have 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.”
      6. The following statement: “The information in this notification is accurate, and under penalty of perjury, I am the owner [or “I am authorized to act on behalf of the owner”] of an exclusive right that is allegedly infringed.”
      7. A Takedown Notice does not allow you to demand damages, but is an efficient way to get infringing content removed from the internet.
      8. If the recipient of the Takedown Notice does not remove the infringing content in a timely manner, then they have opened themselves up to liability and should be sent a Cease and Desist Letter.
      9. When a website and a server do not respond to your letters, a Takedown Notice to any search engines that can find the site will be helpful in ensuring it will be very difficult for anyone to find the site infringing your content.
      10. When sending a Takedown Notice to a search engine it is helpful to include a screenshot of the search query that brought up the infringing site.
      11. The largest search engines are Google, Yahoo, Bing, and Ask.com.  These should be the primary search engines you should send Takedown Notices to.

Mailing your Letters

  1. Now that you have your three letters prepared you should fax them if a fax number is available and you should send the through USPS Certified Mail Return Receipt Requested.  While mailing by this method is more expensive, it serves two purposes:
    1. First, if the dispute does end up in litigation you want to be able to prove that the recipient actually received the letter.
    2. Second, it shows that you are serious about your claims and that if they don’t comply with your demands they may very well get sued.

What Comes Next?

You have now done what you can to protect your copyrights online.  Be forewarned that many smaller websites will simply ignore your letters.  Sometimes the best you can do is have them blocked by the Search Engines.  When you get a response to a Cease and Desist letter you are likely to begin negotiations as to how much to settle their infringement for, or whether there was infringement in the first place.  You can settle these matters yourself, but you may want to hire an attorney who will have practice at negotiating and also make the threat of a lawsuit seem more real to the opposing party.

If you are not sure what you are doing or there is a lot of money at stake, talk to an attorney.  You can still write up your own Cease and Desist Letters and just have the attorney look it over to save you a little money.  It’s better to spend a little money on a lawyer at the beginning then have things fall apart and end up spending a lot of money on an attorney later.

Last Modified: December 5th, 2009