08 March 2018

Dear DMCA Notice Agent

No, I will not use your purportedly convenient online form to report a copyright infringement, because (numbering for later reference only):

  1. Your form is not a method authorized by the statute, 17 U.S.C. § 512, for copyright infringement takedown notices. Sure, the statute was put in place twenty years ago… but formmail was around then (I had had one on my personal website for three years!), and the legislative history implies — doesn't state, admittedly — that it was proposed as a possible means of providing notice and rejected. Thus, using that form might not fulfill my own responsibilities for notification under the statute… and might provide a loophole for you to later argue that not all of the formalities had been fulfilled and that therefore a notice (or counternotice) was ineffective.
  2. Your form doesn't provide me a record copy of what I sent and when. Even though your form requires me to enter an e-mail address in order to use it, and it would be less than trivial to run a three-line sendmail script on the output to send me a record copy. And, of course, if I don't get that record copy, I have a reasonable inference that you didn't actually receive my notice, and can take steps shortly to ensure that you did get it.
  3. Your form usually includes demands for information not required by statute, whether we're talking about a copyright infringement or some other IP infringement (often trademark). Some of these common bullshit demands — which seem made not to actually process notices, or even to validate the seriousness of the notices, but to discourage actual filing of notices by making the notice more administratively annoying and difficult than the statutes require — include demands to provide:

    • A registration number, whether for copyrights or trademarks
    • An example of a protected work being used in commerce, whether for copyright or trademarks
    • A daytime telephone number for response, when the relevant statutes all require written responses
    • A certification that the IP holder has attempted to deal directly with the (usually anonymous or pseudonymous) infringer with some kind of prior notice
  4. Your form is written and assumes that only one type of IP is at issue in any single notice.
  5. Your form is processed in a manner to affirmatively avoid "red flag" information reaching your tiny little brains.
  6. Your form does not allow a single notice regarding multiple works.
  7. Your form is inaccessible unless I have an existing account on your system.
  8. Your form improperly attempts to collect canvas data or set tracking cookies (or, indeed, depends upon any kind of cookie or other session-identification measure).

No, instead, forms like those at most online service providers (as that term is defined in the DMCA) are at best there to deter complete, effective notices from being filed. That is, the service providers don't want to hear it and therefore make it needlessly difficult. (Ever tried to cut and paste URLs into an online form, and make sure that the pasted version is complete… especially when it's more than 80 characters long?) In short, as they're currently implemented, they're bad-faith attempts to avoid inconveniencing the "paying" customers — the users of the online service providers' services. And any lawyers who participate in these schemes should seriously consider their ethical obligations under Rules of Professional Conduct 3.1, 3.4, and 4.1 — especially regarding items 3, 5, 7, and 8 above (which by their presence imply that the online service provider will not timely process a notice otherwise).

So: Bite me. You're going to get e-mails (with return receipts), faxes, and physical letters, sent to the address stated at the Copyright Office notwithstanding anything else buried on page 37 of the terms of service. And sometimes those notices are going to be pretty bloody harsh and warn you up front that you're outside the safe harbor, especially if (like two major "marketplace" providers) you won't respond unless the complainant proves he/she is already a member of your marketplace.