In this episode we’re going to talk about:
- DMCA Take Down Notices.
- How we use Takedown Notices in an anti-piracy campaign.
- How we use DMCA Notices to potentially gain a tactical advantage.
The goal is to use a take down notice to serve the overall strategy.
If you get any ‘thing’ out of this, please realize that everything you do must be strategic. The only real timetable is the one put on it. Mindset. People will try and speed you up or slow you down. If you are not comfortable with the speed, hit the other pedal.
What is a typical agenda? Simple, to get satisfactory compensation and in the absence, stop distribution of the infringing work. We do not have a political agenda.
You’ve probably heard people talk about DMCA takedown notices before. A DMCA Takedown Notice is a notice/letter that you can send an operator or a Service Provider under the Digital Millennium Copyright Act (the DMCA for short). When you find content that is not authorized for use, you can use a DMCA Notice to have a site or search engine remove the content.
A Takedown Notice is intended to inform that:
- You identified the location of the work.
- You are authorized to act on behalf of the owner of the copyright.
- Contact information.
- A link to the infringing material.
- A link to the source material.
- The infringing content (stolen content) needs to be taken down.
We run into a lot of sites that we can’t find actionable contact information. We can figure out the host of a site and the registrar but initially, we may not be able to find good information for a site operator or owner or their actual location. What we can do are find ways to use who we can find to work for us.
We have been having success using a Hybrid DMCA Take Notice. For certain clients, we’re sending out a notice that says DMCA Takedown Notice of copyright infringement and or a license option. This notice has all of the same elements of a Takedown Notice except I added a line in there that says, “if you would like to license the content for continued use please contact us via email if not remove it immediately from all locations and provide us with a proof of removal.” Go to the bottom of this page for a copy of the full Hybrid DMCA Takedown Notice.
This type of takedown notice softens the blow. It is not as aggressive sounding as the traditional stoic DMCA takedown notice. It also allows for an opportunity to just settle, license, and move on.
As we have sent these notices out, what is happening is that either legal counsel or operators of websites are responding and choosing to license footage or content. We’ve already come up with amounts that are satisfactory to clients. In many instances, we are able to get a licensing deal done and move on. Another benefit is that by them responding, we now have an email we can use if there is a new issue. I now have the ability to email direct and take a friendly approach in the future.
Lead with a friendly demeanor.
Close transactions with a friendly demeanor.
It’s not always about the hammer.
The only time I’m using a hammer is when we’re not able to get into a conversation that is going anywhere or I don’t have anyone to talk to. In these instances, we need to use all of the legal tools available on behalf of our clients. We will escalate or contract based on need.
I’m happy when I can just have a conversation with a site operator and just work out a deal. It serves what everyone wants.
Know your goal, your objective, your agenda before you start sending out notices or taking action. This should not take a lot of time. Most want satisfactory compensation. If not, you probably want to stop the unlawful distribution of the work.
This is only one example of what is possible. Compensation doesn’t need to include a monetary piece. Satisfactory compensation could be that the site removes the content and doesn’t allow it back on the site. A future agreement however that fits into your business model. If it fits within the parameters of what you set as a goal before you started down the path, that is a win.
Next, we are going to jump into a real example of how we recently used (and how you can use) the power of the DMCA to reach a solution.
Client: Ford Fischer, News2Share, Inc.
Profile: Ford Fischer/News2Share is an independent journalist. His footage is sought after by news agencies and feature films documentary filmmakers. Ford gets shots at great physical risk to himself. He puts himself into the middle of protests, civil unrest, and then licenses his work (either part of it or all of it) for a fee and credit. You may not know Ford but you would be hard pressed to not know his footage.
Spike Lee used Ford’s ‘Unite the Right Rally’ footage in the Academy Award nominated film BlacKkKlansman. Spike properly licensed and paid for the footage. That is what a good player does. The Unite the Right rally was a white supremacist rally that occurred in Charlottesville, Virginia, from August 11 to 12, 2017. Heather Heyer was killed when she was run over by car driven by James Alex Fields Jr.
Personally, I do not think there has been a more important time in my life than NOW for journalists like Ford Fischer. He provides live streaming; raw, unedited footage in real time. He later releases edited footage in his report. The live stream and edited can be viewed at any time to see a larger picture. In an age where news is questioned and skewed, a live stream backup is useful.
Now that you know who, let’s talk about the what…
I’m going to use the name D’Souza to refer to an entire team because at the time of recording, we didn’t know all of the participants involved. At the time of recording a deal had not been reached. Ford Fischer/News2Share did not participate with this podcast nor did they know the substance. On behalf of myself, Jason Tucker and Battleship Stance, Inc. we reserve all rights.
D’Souza used Ford’s/News2Share’s footage in two different segments of the movie. One was an interview with Richard Spencer, Alt-Right leader, white nationalist, and president of the National Policy Institute (NPI).
To me, it looked like Ford was able to garner what D’Souza could not get so D’Souza grabbed and used Ford’s footage. This type of questionable usage happens to journalist’s way too often. More often than not “documentaries” and news outlets try and claim that the unlicensed use falls under the Fair Use doctrine.
To put it another way, it looks like they stole Ford’s and just used it. Now I don’t know how this went down. It could have been as simple as we need something here that looks like that. Here’s what we found. We’re just going to use that. We’re not going to license it. We’re not going to pay for it. And yeah, they’ll never find out. If they do…we’ll figure out some legal argument.
As crazy as that sounds, this happens too often. We completely disagreed with what D’Souza did with Ford’s footage and here is what we did to right a solve this issue for our client.
We identified who the attorney and producers were and sent them all an email letting them know our view. We suggested that they properly license the footage. They replied with a long explanation claiming Fair Use. It is interesting to note that according to the credits it appears they licensed and paid for footage from Getty Images and others. My guess, it is common knowledge that Getty Images will sue for unlicensed use. “Somehow” pay for Getty but use Ford’s footage equaled OK. At this point, we weren’t getting any actual movement. We needed another tool.
The DMCA Takedown Notice
We didn’t blast D’Souza or his attorneys with threats or empty promises. We don’t do that. If we tell you we’re going to take action we do and it’s not tough talk. We’re not looking to blast somebody off the planet. We are looking to work out a reasonable settlement. But…the goal is a resolution by whatever legal means is necessary.
At this moment they aren’t open to the idea. We make our strategic move.
We simply used the power of a DMCA notice for its intended purpose.
In this case, it was to stop the film from infringing our client’s content.
We identified every vendor we could that was selling, offering, or showing the film. This included Amazon, Netflix, Walmart, BestBuy, and even a few pirate posts. We sent them Hybrid DMCA takedown notices for copyright infringement and/or license option. Ford Fischer/News2Share was prepared to file a lawsuit. In this instance, we preferred to first attempt a negotiated settlement.
We wanted to first truly exhaust attempts at settlement. In my experience, films of this type love to grab press. A lawsuit would give that to them. A company seeking press to push a film will drag a case on.
Did our takedown strategy work?
Vendors started pulling the DVD’s off the shelves and taking streaming and buy links off their websites. We were prepared to keep going until a settlement was reached. We noticed Netflix, NBC Universal and others in the campaign. When a movie goes offline, the distributor and producers will notice. The DMCA Notices get forwarded on to the distributor and producers and now they have to deal with it or in this instance, us.
Are you seeing the play here? They decided not to talk or deal. We made a move on the film that forced them to the table. We did all of this in the open, meaning, we CC’d D’Souza and his attorney on every single notice. We wanted them to see exactly what we were doing. They postured and we shot back with Takedown Notices.
Some may be asking why copy them on emails? Simple, we don’t play what is called hide the ball. If the goal is to work out a solution, there is no reason to play games and hide evidence. I like being open in these instances and this is something I hope that you too will adopt.
If you use a technique like the one, I just shared, know that the “other side” may not be happy with what you are doing. They may threaten you. But if it ultimately gets you to where you need to be, it’s a win.
Below is our Hybrid DMCA TAKE DOWN NOTICE sample for you to consider using. I hope that this was helpful to you and I look forward to giving you some more tips and tricks.
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HYBRID DMCA TAKE DOWN NOTICE – SAMPLE
RE: DMCA Notice of Copyright Infringement &/or License Option
Dear Copyright Agent,
I, [NAME HERE], hereby declare under penalty of perjury under the laws of the United States of America that to the best of my knowledge and belief the foregoing is true and correct and I have the authority to act on behalf of the owner of the copyright(s) involved.
I have a good faith belief that the items or materials listed below are not authorized by law for use by the owners and operators or their agents and therefore infringes the copyright and trademark owner’s rights. I hereby demand that you act expeditiously to remove or disable access to the material or items claimed to be infringing.
If you would like to license the footage for continued use, please contact us via email. If not, remove immediately from all locations and provide us with a proof of removal.
My contact information is as follows:
Attn: [YOUR NAME]
Address: [YOUR ADDRESS]
Email: [YOUR EMAIL]
Link(s) to Infringing Material: [INFRINGING LINK]
Location of original work(s) owned by [YOUR NAME OR COMPANY]: [YOUR LINK]
Location of Infringement(s) in Infringing Link(s) listed above:
[IF IN ANOTHER VIDEO – TIMECODE] – If this does not pertain to your situation, remove.
This correspondence and all of its contents is without prejudice to [YOUR COMPANY OR NAME] or any of their affiliated company’s rights and remedies, all of which are expressly reserved.
Agent for [YOUR COMPANY]
d/b/a http://www. [YOUR URL] .com
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