James R. Balmforth: How Do I Send a DMCA Take Down Notice?

A DMCA take-down notice is an easy and relatively inexpensive way to have your copyright protected materials removed from a website hosting company servers, or a search index on Yahoo, Google, or Bing. The first thing you need to know about how to send a DMCA notice is that you must be the copyright owner in order to send the notice. The copyright owner is typically the person who put their fingers to the keyboard, their finger to the click button on the camera, or their pen to paper. The person who is the author of the work is most often the copyright owner. Sometimes the copyright owner will license or sign their interest to an employer or third party which may then have the impact of transferring the copyright to someone who is not the author.

The next thing you need to understand about how to send a DMCA take-down notice is who to send it to. As noted above, any third party who is a service provider with a DMCA copyright policy is potentially a target for a DMCA notice letter. So, for instance, the company hosting the website is often the primary DMCA notice target. People don’t realize they can also send a DMCA notice to Google, Yahoo, and Bing in order to have their materials removed from the search index. That often gets the job done since the infringing material doesn’t come back on search.

You must strictly follow the DMCA take-down policy and rules set forth by the third party provider in order to successfully remove copyright protected materials from the internet. If a provider does not have a DMCA policy, then they may not have immunity from copyright infringement claims. This means you could send a copyright infringement threat letter directly to that third party provider unprotected by DMCA immunity provisions.

An experienced DMCA attorney can help you understand how to send a DMCA take-down notice, who to send it to and what to expect by way of response. Understanding how to send a DMCA notice correctly will save you a lot of time and money down the road.

VARIATIONS OF CYBERSQUATTING

While you may know what cybersquatting is generally and what potential legal action you can take for remedies under the Anticybersquatting Protection Act (“ACPA”), not knowing specific techniques used by cybersquatters may leave you unaware that you are currently being or have been a victim of cybersquatting. Cybersquatters use a variety of techniques to benefit from your trademark, so it is important for you to understand the variations of a cybersquatting in order to identify if your trademark has been illegally infringed upon by a cybersquatter.

One common form of cybersquatting is typosquatting. Typosquatting as a practice can be defined through a few different methods, which include misspelling or phrasing, as well as using a separate top-level domain (TLD). Misspelling or phrasing occurs when cybersquatters change the spelling of words or phrases slightly to benefit from internet users common typing mistakes to attract attention to a fake domain based on a misspelled legitimate domain, such as traverslegal.com instead of traverselegal.com. Notice the missing “e” in the first spelling? If not, you aren’t alone.

Another variation of typosquatting is top-level domain swapping by simply changing a .com domain to a separate TLD domain such as .org, or .net. A notable example was whitehouse.com, which adversely affected whitehouse.gov by displaying pornographic material. Mistakes in knowing which TLD is associated with a site like this are common, and cybersquatters take advantage of these mistakes by setting up a fake website cosmetically designed to imitate the original, and adversely affect your trademark by stealing your web traffic, compel you to buy the cybersquatted domain, or simply by spreading malware using your brand name.

Another form of Cybersquatting is a type of Identity theft associated with the registration of domain names. There are software products that a cybersquatter can use to monitor domain registration expiration, and if the domain is not renewed in time, they can purchase that domain, and either imitate your website to make your site’s visitors believe that the cybersquatter is you, or perhaps worse a website with your competitor’s products or services and redirect them to that site or advertisements that contain your competitor’s products or services.

A final type of cybersquatting is known as reverse cybersquatting or otherwise known as reverse domain hijacking. This is the practice of brand owners attempting to secure a domain name legally owned by another person and who is not otherwise a cybersquatter. A brand owner may claim that they own the rights to your domain, and threaten legal action unless you transfer that domain over to them. This practice by the brand owner is often perpetrated by large companies or famous individuals and is an abuse of their trademark rights making wrongful claims against your rightfully held domain name.

Free Consultation with a Utah Intellectual Property Lawyer

When you need help with a DMCA take down notice, cybersquatting or other IP related legal matters, call Ascent Law for your free consultation (801) 676-5506. We want to help you.