DO YOU KNOW HOW TO DO A DMCA TAKEDOWN?

As a copyright owner of a recording and/or song, you likely know that people who upload a full track or full album copy of your work to any internet site, without permission or license, are breaking the law and violating your Constitutional right.  All OSPs "online service providers," in order to maintain their “safe harbor” status with the U.S. Government, must honor your request to take it down when that happens to you.

This request is called a Notice and Takedown.  Before submitting a DMCA takedown notice, it is very important that you be sure that you are the owner of your recording.  Some artists have unwittingly signed away these rights to their record company in which case, only those entities have the authority do the take-down.  If you find your work being monetized on YouTube for instance, it could be that your record company may have submitted your work to being in YouTube’s “Content ID program” where infringed music is tagged and then monetized instead of being taken down.  (If you didn't have a clause in your contract with your record company requiring consent for such distribution methods, you'll likely find yourself putting that into your future contracts.) 

One important thing to be aware of, is that many companies put up their artists' recordings without clearing the rights of all the copyright-holders (songwriters/composers) on the recording.  So if you are one of the creators of a song that's being monetized on Content ID, but the record company monetizing the "recording" never got permission from you, you may legally take it down.  But the problem that you must be prepared to face is that YouTube will post your name next to a frown face icon (in perpetuity) on the page replacing that song.  You will be publicly exposed as the person who took it down.  This demonization intimidates many rights-holders into not enforcing their legal rights. 

Before doing any takedown, you also should make a good-faith assessment of whether the use of your work might qualify as "fair use."  A "fair use" assessment can be tricky, but in most cases, it is not.  If someone uploads your entire song or recording without your permission (on a site like YouTube) for the main purpose of listening, that will almost never fall under fair use.  For instance, if someone uploads your entire CD, and the only "video" graphic is your CD cover art, this will never qualify for "fair use."  And the reality is, that type of upload (full track or full CD) is the most prevalent type found on YouTube.  However, a very small percentage of uploads could be fair use.  For instance, if a politician uses 15 seconds of a song in a video of a campaign event for purposes of political debate, it's probably fair use.   Similarly, if a mother records 20 seconds of a song in the background of a home video where her baby is dancing, the mother's video might be fair use.  But if someone has made a karaoke version of your song, it likely would not be fair use.  In situations where your music is being used as one component of a larger copyrighted work, a "fair use" analysis can be complex.  It involves the weighting of various factors, and a comparison to known fair use cases.  Here are the "four factors of fair use" that are written into the copyright law, with which every rights-holder should become very familiar, so that you better understand what's fair and what's illegal use of your work.  If the lines still feel blurry after looking at that, consult an intellectual property attorney or similar resource.

If you are confident you own the rights to your music (retaining those rights is becoming increasingly important), and the use of the work in question is not "fair use," then look on that web page for the DMCA notice "link" (usually at the bottom of a site).  Note that foreign sites don’t have to comply with the DMCA, and “torrent” sites will tell you they have no remedy, as the files aren’t hosted on their servers.  If you click the DMCA policy link, you'll have to follow the directions they give.  Each site has a different process.

Doing a takedown won't necessarily work long term.  Someone else can put it up again, and again, and again.  Some copyright owners have described doing takedowns thousands of times. 

You'll note that when you do the takedown, you’ll have to sign a penalty of perjury statement.  Shouldn’t the DMCA at very least require that the person “uploading” the music should have to swear under penalty of perjury that they have the rights to that music?  That’s only right.

Does this all feel daunting?  We think so.  That's why we advocate changes in the DMCA that would put the same scrutiny on uploaders as rights-holders, and that would force companies like YouTube to make fingerprinting technology available to all rights-holders who want to protect their own work.  Spread the word of musicanswers.org to every musician and fan you know.  And now is a good time to sign the Takedown–Staydown Petition.