How to go about sending a DMCA takedown notice to pornographic websites?

Question

I have a few questions about the DMCA takedown process. A friend of mine is a webcam model for a video chat site. She lives outside of the U.S. and because of this she has had difficulty getting videos of her public and private shows removed from various third party sites. It is unclear to me at this point whether or not the difficulty stems from the websites' unwillingness to remove the content based on her location, or if it is more a matter of her not fully understanding the English language and not meeting the requirements for an effective DMCA takedown notice. So my questions are:

• What makes for an effective DMCA takedown notice specifically in regards to websites that host pornographic material?

• Is a website more likely to respond to a DMCA takedown notice if the notice comes from within the United States?

• If the answer to the previous question is Yes: how would someone from outside of the United States authorize someone residing in the United States to send a DMCA takedown notice on their behalf?

• When sending a DMCA takedown notice, does one send the notice directly to the website in question?

Many pornographic websites have a DMCA link on their page. One such site has this to say when clicking that link:

Requesting for DMCA removal

Depending on which part of example.tv site your material (videos or pictures) was posted, you can request for removal. If you wish to remove any material (picture or video) or have some information changed, you must identify yourself and prove that you are who you claim to be. To do so, you can simply take a picture of you (with face) holding a sign with the following written: "I am MODEL NAME for example.tv". Attach this picture when sending your request to [email protected].

• My final question - supposing we send a takedown notice to a website; might they be more inclined to remove the content had we played by their rules? Is this something a model should consider doing or would it be better to take the formal legal route of sending a DMCA takedown notice?

Thank you for taking the time to read this. If any further information is needed please let me know and I will supply all that I can.

Answer 1

DMCA is a united states law. So it has very little effect on businesses unless they are either hosted in the US or legally reachable by US law.

If this seems odd, it's a bit like how the average US blogger website would react if told that a blog post insulted the King of Thailand or promoted an antisocial view by criticising Putin, and got a takedown request made under Thai or Russian law. It wouldn't get much of a chance because those aren't laws in the US. Same with the DMCA, it isn't law elsewhere.

What is law elsewhere (generally) is copyright law which is the subject of many international treaties. Unlawful breach is often a crime, and can lead to criminal charges (or extradition) in both countries for that reason - but not because of the DMCA).

Answer 2

DMCA applies as long as the the website is being hosted inside the U.S. The location of the copyright holder is irrelevant.

For step-by-step help drafting a valid DMCA notice, see Step 2 of https://nppa.org/page/5617. If the site fails to comply with a valid notice, they lose the benefit of DMCA's safe harbor provisions and become themselves liable for continuing to host the infringing work, and you can sue them. (Prior filing suit, though, I imagine a letter from a lawyer that says, "Hey, my client sent you a valid DMCA notice a while ago; kindly comply at once, or we will actually sue you," should be sufficient.)

The requirement to submit a photo appears to be totally unnecessary. A valid DMCA notice includes a signature (electronically including your name in an email is sufficient) and an assertion, under penalty of perjury, that the writer is authorized to control the copyright work and that the work is being used illegally. Beyond a signature and contact information, no further identity verification is necessary. The DMCA handles this by opening the submitter to perjury charges if the takedown was submitted illegally.

Of course, any site might choose to ignore your DMCA takedown, at their own peril. They might bet that you won't actually hire a lawyer and follow through on your legal right to file suit, or they might not understand that identity verification is not a legal requirement listed in 17 U.S.C. § 512(c)(3). Your options are either:

1. follow the law as written and file a valid takedown notice, and then hire a lawyer when they don't don't comply with the rules written in 17 U.S.C. § 512
2. follow their additional rules to get them to comply, which may be more difficult but might not require hiring a lawyer

Answer 3

What makes for an effective DMCA takedown notice specifically in regards to websites that host pornographic material

Whether it's pornographic doesn't matter. The DMCA lists the elements of an effective takedown notice:

To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has 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.
(vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

That is what you need in a takedown notice. Any website which requires more than this is likely putting its safe harbor at risk.

Is a website more likely to respond to a DMCA takedown notice if the notice comes from within the United States?

How likely a website is to respond is not really a legal question. But they might feel like they could ignore your request if both you and they are not in the US. Complying with a US-based law that limits their liability doesn't do them much good if the US doesn't have any jurisdiction over the case.

When sending a DMCA takedown notice, does one send the notice directly to the website in question?

As the above quoted section of the law states, you send it to the "designated agent". If the website is complying with the DMCA, the agent should be listed on the website, and you can also search for a website's agent here at the Copyright Office's website.

Answer 4

I would suspect that a porn website gets their fair share of fake DMCA takedown notices. You can say that is not your problem but the site's problem, and send a DMCA notice, correctly filled out (which doesn't require a photo). They must take down the video or you can sue them. The fact that they got one real notice from a real model and 99 fake notices from 99 prudes is not your problem legally. However, as a result of this your video may not be taken down and suing costs money.

So their requirement that you should send your name and photo does make sense. Assuming they have the names of all models, and the average troll doesn't, they would know that this is a genuine complaint, and it is much more likely that they take the video down - because they have plenty of legal ones, and they don't want you to cause trouble. They may even take it down if your takedown notice was not meeting the legal requirements. And apart from legalities, they would know that you don't want that video online, and may take it down even without legal requirement.

So playing along probably increases your chances of that video being removed at no cost for you. A DMCA notice, correct in form, plus your photo, is probably the most likely way to succeed.

Answer 5

Only a copyright holder (or the authorized agent of a holder) can validly send a DCMA takedown notice. In the US, it is not fully clear that an actor (actress) is, by default, a co-author (in the legal sense) of a film in which she acts, and is therefore one of the copyright holders. There is some authority that says that she is, but it is not yet conclusive, and there is little case law on the subject.

Most commercial films involve contracts which spell out exactly who is and who is not a copyright holder, and what percentage of ownership each holder has. If she signed a contract that says that she is not a copyright holder, then she cannot send a valid DMCA notice. Knowingly sending an invalid one in which any of the materiel facts are falsified is technically perjury, although i doubt that prosecution is at all common in such cases.

If a notice is sent and the work is not taken down, then ultimately the only way to force a takedown is to sue for infringement. If this is a US work, and the suit is in a US court, then the copyright in the work must be registered before suit can be filed. If and only if the work was registered before the infringement, or was registered less than thee months after publication, then statutory damages, costs, and legal fees are available as part of a copyright judgement, once infringement is proved. (This does not apply if the work was first published outside the US more than 30 days before it was published inside the US.)