Section 512 of Title 17: Resources on Online Service Provider Safe Harbors and Notice-and-Takedown System
Overview of Section 512
Section 512 contains limitations on liability—referred to as safe harbors— for four types of online service providers. The safe harbors shield qualifying online service providers from monetary liability for copyright infringement based on the actions of their users, in exchange for cooperating with copyright owners to expeditiously remove infringing content and meeting certain conditions.
The four types of online service providers and the applicable conditions to qualify for the safe harbors are:
Three of the four types of online service providers must comply with the requirements of the notice-and-takedown system in order to qualify for the safe harbors. The notice-and-takedown system allows rightsholders to send a notification to the online service provider regarding infringing material that appears on the service provider’s system. To be effective, a notice must contain substantially the following information:
(ii) identification of the copyrighted work claimed to have been infringed, or, if multiple works are on a single site, a representative list of such works;
(iii) identification of the infringing material or activity (or the reference or link to such material) and information reasonably sufficient to permit the OSP to locate the material (or the reference or link);
(iv) contact information for the copyright owner or authorized agent;
(v) a statement that the person sending the notice 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; and
(vi) a statement that the information in the notice is accurate, and under penalty of perjury, that the person sending the notice is authorized to act on behalf of the copyright owner .
A sample notice is located under the “Notice-and-Takedown Resources” heading.
Once the online service provider has received a compliant notice, it must act expeditiously to remove or disable access to the infringing material. The service provider must then promptly notify the user that originally uploaded the material that it has been removed.
If the user believes that the material was removed as a result of mistake or misidentification of the material, the user may submit a counter-notice requesting the reinstatement of the material. To be effective, a counter-notice must contain substantially the following information:
(ii) identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled;
(iii) a statement under penalty of perjury that the user has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) the user’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
A sample counter-notice is located under the “Notice-and-Takedown Resources” heading.
Following receipt of a compliant counter-notice, the online service provider must restore access to the material after no less than ten and no more than fourteen business days, unless the original notice sender informs the service provider that it has filed a court action against the user.
The notice and counter-notice steps can be visualized as follows:
- Notice — Rightsholder sends notice to online service provider regarding infringing material that appears on the online service provider’s system.
- Remove Access to Material — Online service provider must act expeditiously to remove or disable access to the infringing material.
- Notify User — Online service provider must then promptly notify the user that originally uploaded the material that it has been removed.
- Counter-notice — User may submit a counter-notice requesting the reinstatement of the material, if the user believes the removal was due to a mistake or misidentification.
- Restore Access or Initiate Court Action — Online service provider must restore access to the material after no less than 10 and no more than 14 business days, unless the original notice sender informs the service provider that it has filed a court action against the user.
Section 512 Notice-and-Takedown Frequently Asked Questions
What is a takedown?
A takedown, or a takedown notice, is a request made by a copyright owner to an online service provider (OSP) (see examples under “I operate an OSP (or think I do)” below) to have material that infringes their copyright-protected work removed from a website or other online service.
Why can copyright owners remove something I posted?
Copyright owners have the right to control certain uses of their copyright-protected works. Congress created the notice-and-takedown system in section 512 of the Copyright Act in order to help balance the rights of copyright owners with the ways in which people use the internet. So, if copyright owners see their works being used in ways that infringe their rights, they can request to have the works removed.
Do I need to register my work with the Copyright Office in order to request a takedown?
No. A copyright registration is not required before sending a takedown notice. However, for U.S. works, a copyright registration is required before suing in court for copyright infringement.
Do I need to hire someone to send a takedown?
No. You do not need to hire an attorney or anyone else to send a takedown notice. As long as you are the copyright owner of the work or are authorized by the copyright owner to act on their behalf, you may send a takedown notice. If you do not wish to send the takedown notice yourself, you can authorize others to do so on your behalf, including an attorney or a takedown company.
What do I need to include in my takedown notice?
You must include substantially the following information:
- Identification of the material you wish to have taken down, along with information that will help the OSP locate the material.
- Identification of the work you believe is being infringed.
- A statement that you have a good faith belief that the use of the work you believe is being infringed was not authorized by the copyright owner, an agent of the owner, or the law.
- Your contact information. The OSP needs to be able to reach you with any responses it receives from the user who posted the work you would like removed.
- A statement that everything contained in the takedown notice is accurate and that, under penalty of perjury, you are the copyright owner or have permission to act on the copyright owner’s behalf.
- Your signature. The signature can be physical or digital.
To do this, you can fill out the sample takedown notice provided by the U.S. Copyright Office and email it to the OSP’s DMCA agent (for information on locating the contact information for the OSP’s DMCA agent, see the next answer). Alternatively, some websites provide site-specific webforms that may result in a faster processing time. To find these forms, search the site for “DMCA.”
Please note, however, that if you knowingly make a material misrepresentation (that is, falsely assert) in your notice that the complained-of use is infringing, you can be liable for any damages, costs, and attorneys’ fees incurred by the user and/or the OSP.
Where do I send my takedown notice?
Send your notice to the OSP’s registered DMCA agent, which can be found by searching the U.S. Copyright Office’s DMCA Designated Agent database [dmca.copyright.gov/osp/]. Any OSP that provides caching, hosting, or linking services that wants to claim a safe harbor from monetary liability for copyright infringement must register a DMCA agent with the U.S. Copyright Office and must post certain contact information for their designated agents on their websites in a in a publicly accessible place; frequently this information is located in their Terms of Service. Other places that contact information regarding the site’s DMCA agent may be located in the site’s Community Standards section or by searching the site for the term “DMCA.”
Can I request to have multiple copies of my work removed from a site with one takedown?
If you own the copyright in multiple works that are infringed on the same site, you may include in your notice a “representative list” of those works in lieu of listing each work individually. However, when identifying the material that infringes on those works, you must give the OSP information “reasonably sufficient” to locate the infringing material. Often, this may mean providing specific URLs or listing specific pages on which the infringing material can be found.
Can I send a takedown to remove pictures of me?
Maybe. Only a copyright owner or the owner’s authorized agent can submit a takedown notice under section 512. If you took the photo—for example, if it is a selfie—then you are likely the copyright owner and can submit a takedown notice under section 512. If you are in the photo but did not take the photo, you are most likely not the copyright owner and in that case could not send a takedown notice under section 512 to have the photo removed. You may have other courses of action to seek removal of the photo under state privacy, right of publicity, or revenge porn laws or under the website’s Terms of Service. You should discuss your options with a licensed attorney.
I requested that my work to be taken down but it is still there (/back again), why?
There are two main reasons you might see material that infringes your work on a site after sending a takedown notice: the poster sent a counter-notice and had the material reinstated, or it is a different instance of material that infringes the work.
When you send a takedown notice, the person who posted the material that you are requesting be taken down has the option to dispute your claim that the use infringes your copyright. If the OSP receives a counter-notice, they are obliged to repost the material within ten to fourteen business days, unless you first notify the OSP that you have brought a court action against the user for infringement of your work. Upon receipt of a counter-notice, the OSP will also send you a copy for you to decide whether to bring a court case.
How soon is content removed after sending my takedown notice?
An OSP must “act expeditiously to remove, or disable access to” the infringing material. What timeframe constitutes “expeditious” removal will depend on the type and size of the OSP. Generally, larger OSPs will be expected to remove material more quickly than smaller OSPs.
What if the website where I found my work is not hosted in the United States?
You can still send a takedown notice. Copyright law is territorial. If a website targets U.S. users, the website could be liable under U.S. law for infringement of your work. In that case, compliance with a takedown notice would provide the OSP with a safe harbor for any resulting monetary damages. Similarly, some other countries have adopted some type of notice-and-takedown system, which would grant the OSP a safe harbor against monetary or other damages in that country.
Please note, however, that an OSP, regardless of where it is hosted, is never obligated to comply with a takedown notice. Responding to takedown notices is always voluntary; OSPs that do so gain the benefit of limitations on their liability for copyright infringement in the United States and certain other countries. If an OSP is concerned about being liable for copyright infringement in the United States or under the law of a country that has a notice-and-takedown system, it may respond to your takedown notice. You can check to see if a foreign OSP has a registered DMCA agent in the Copyright Office Designated Agent Directory.
If the OSP does not respond to your takedown notice, you may need to explore enforcement options under the law of the country where the site’s owners are located, where its servers are located, or where it is targeting users.
Some companies say they can send takedown notices for revenge porn; can I do this myself?
Like with any content, you can only send takedown requests for works for which you are the copyright owner. This means if you pushed the button to take the photo or record the video, you may send a takedown notice under the DMCA. For works where you are depicted but for which you are not the copyright owner, you cannot use copyright remedies. There are various other state laws that may apply, including right of privacy, right of publicity, and some state revenge porn laws; you can talk to an attorney about these. Some OSPs may also have adopted separate procedures for requesting the takedown of revenge porn, so check the site’s Terms of Service.
I received a counter-notice; what can I do next?
If you believe the counter-notice is incorrect and that the use does infringe your copyright, you may file a case in federal court seeking a court order to prevent the poster from continuing to infringe your work. If you send a notice to the OSP that you have filed such a court case within ten to fourteen days of receiving the counter-notice, the OSP will not repost the work.
How do I obtain the name or contact information of the individual that infringed my copyright-protected work?
You may file a subpoena to identify the poster. You file this request with the clerk of any federal district court. Your request should include a copy of your original takedown notice, a proposed subpoena including an order to “expeditiously disclose” information to identify the alleged infringer, and a sworn declaration that this subpoena is to obtain the identity of an alleged infringer and the information will not be used for anything else. The district courts provide a form for requesting a subpoena at uscourts.gov/sites/default/files/ao088b.pdf.
Does a takedown notice mean I am being sued?
No, a takedown notice does not mean you are being sued. If you are being sued, you will be served with court papers.
What are my options if the material I posted has been taken down?
If an OSP has removed or disabled access to material you posted because it received a takedown notice from a rightsholder, it is required to take “reasonable steps” to notify you of this.
- Once you are notified that access to the material has been disabled, you have two options: 1) do nothing and allow the material to stay offline, or 2) send what is called a “counter-notice” to the OSP explaining that your material was removed or disabled by mistake or as the result of misidentification (for example, because you have a valid license to use the work or the material does not include the work the rightsholder claims to have been infringed), and requesting that it be reposted. The specifics of what you must include in a counter-notice are listed in the next FAQ.
- Once an OSP receives your counter-notification, it will inform the rightsholder and may repost your material in “not less than ten, nor more than fourteen, business days” unless the rightsholder takes additional action against you.
- If, during this ten tofourteen day period, the rightsholder notifies the OSP that it has filed a lawsuit in court seeking to restrain you from infringing the copyrighted work(s) in question, the OSP cannot repost your material.
- If you knowingly make a material misrepresentation (that is, falsely assert) in your counter-notice that your materials were taken down improperly, you can be liable for any damages, costs, and attorneys’ fees incurred by the rightsholder and/or the OSP.
What do I need to include in a counter-notice request to have the material I posted put back?
If you file counter-notice, it must include substantially the following information:
- your physical or electronic signature;
- identification of the material that was removed or to which access was disabled, as well as the location where it previously appeared;
- a statement under penalty of perjury that you have a good faith belief that the material in question was removed or disabled improperly—that is, “as a result of mistake or misidentification”; and
- your contact information, as well as a statement that you consent to the jurisdiction of the federal district court for your judicial district (or, if you are located outside the United States, the OSP’s judicial district), as well as an agreement to accept service of process from the rightsholder who sent the takedown notice or that rightsholder’s agent.
To do this, you can fill out the form provided by the U.S. Copyright Office and email it to the OSP’s DMCA agent (for information on locating the contact information for the OSP’s DMCA agent, see the next answer).
Where do I send a counter-notice?
As a condition of their safe harbor, OSPs must designate a DMCA agent to receive both takedown notices and counter-notices. Contact information for all current designated agents is available in the U.S. Copyright Office’s DMCA Designated Agent Directory. Additionally, OSPs must post contact information for their designated agents in a publicly accessible place on their sites; frequently this is in their Terms of Service or can be found by searching the site for the term “DMCA.”
How long after sending a counter-notice will the material be reposted online?
The OSP may repost the material in question not less than ten, nor more than fourteen, business days following receipt of the counter-notice, unless it first receives a notice from the rightsholder who sent the takedown notice that the rightsholder is filing a copyright infringement action against you in federal court.
What is fair use?
A user may believe that uploading and sharing unauthorized material on a service provider’s website may qualify as a “fair use.” Fair use is a legal doctrine that promotes freedom of expression by permitting the unauthorized use of copyright-protected works in certain circumstances. Section 107 of the Copyright Act provides the statutory framework for determining whether something is a fair use and identifies certain types of uses—such as criticism, comment, news reporting, teaching, scholarship, and research—as examples of activities that may qualify as fair use. Section 107 calls for consideration of the following four factors in evaluating a question of fair use:
(1) purpose and character of the use, including whether the use is of a commercial nature or is for nonprofit educational purposes;
(2) nature of the copyrighted work;
(3) amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) effect of the use on the potential market.
A court may consider additional factors as well.
Can my account be terminated if I am the subject of a takedown notice?
It is possible that multiple takedown notices may result in account termination. To maintain their safe harbor, OSPs must adopt and implement a policy that results in account termination for “repeat infringers.” Most OSPs will identify the grounds for account termination and what their account termination procedures are in their Terms of Service.
What is an OSP?
OSP stands for “Online Service Provider.” The term used in the statute is “service provider,” and it is defined as “a provider of online services or network access, or the operator of facilities therefor.” The DMCA contemplates four distinct kinds of OSPs, each of which have different requirements for qualifying for the safe harbor:
a) serving as a conduit for the automatic online transmission of material without modification of its content, as directed by third parties (e.g., cable, DSL, or cellular network providers);
b) caching (i.e., temporarily storing) material that is being transmitted automatically over the internet from one third party to another (e.g., making a local copy of a website and serving it up to its users who request the original website);
c) storing (i.e., hosting) material at the direction of a user on a service provider’s system or network (e.g., websites that host user-generated content); and
d) referring or linking users to online sites using information location tools (e.g., search engines).
If you engage in any of these four activities, or a combination of them, you are an OSP eligible for a DMCA safe harbor with respect to these activities, so long as you comply with the other requirements of section 512.
What is a DMCA safe harbor?
A “safe harbor” is a limitation on monetary legal liability that could otherwise result from the infringement or unauthorized use of copyright-protected works by an OSP’s users. To qualify for a safe harbor, an OSP must comply with all statutory requirements and meet certain qualifications (see next FAQ for a discussion of these qualifications). An OSP that qualifies for one or more of the safe harbors will not be liable for monetary relief for copyright infringement that occurs on or through its system or network, and will be subject only to limited injunctive relief for such activities.
For eligible OSPs that serve as conduits for automatic transmission of user communications, injunctive relief under the safe harbor is limited to a court ordering the termination of an infringer’s account(s) or the blocking of access to a “specific, identified, online location outside the United States.” For eligible OSPs that provide caching, hosting, or search/linking services, injunctive relief under the safe harbor is limited to (1) disabling access to the infringing material; (2) terminating an infringer’s account(s); and (3) providing such other relief as may be necessary to address infringement at a particular online location, in a manner that is the least burdensome to the OSP.
What do I need to do to qualify for the DMCA safe harbor?
The answer to this question varies depending upon the kind of OSP you are:
- All OSPs must (1) adopt and reasonably implement a policy to terminate repeat infringers (including users who have repeatedly had material taken down either under the notice-and-takedown process or as the result of the OSP’s own “red flag” knowledge of infringing activity, not necessarily as a result of having been found infringing in court); and (2) accommodate and not interfere with standard technical measures that identify or protect copyrighted works that have been developed according to broad consensus between copyright owners and OSPs, to the extent any such measures exist.
- If you serve as a mere conduit for automatic transmission of user communications, there are no other qualifications or obligations you need to meet.
- If you serve a caching function, in addition to the two requirements above, you must maintain comply with the notice-and-takedown process. This includes (1) designating an agent to receive DMCA takedown notices and registering this agent with the U.S. Copyright Office, (2) providing the contact information of your DMCA agent on your website in a place accessible to the public, and (3) responding expeditiously to remove or disable access to material claimed to be infringing upon receipt of a takedown notice from a rightsholder or its authorized agent, so long as that notice affirms that the material has been removed or disabled by the originating site or that a court has ordered that it be removed or disabled.
- If you serve a hosting or search/linking function, in addition to the two requirements above, you must maintain comply with the notice-and-takedown process. This includes (1) designating an agent to receive DMCA takedown notices and registering this agent with the U.S. Copyright Office, (2) providing the contact information of your DMCA agent on your website in a place accessible to the public, and (3) responding expeditiously to remove or disable access to material claimed to be infringing upon receipt of a valid takedown notice from a rightsholder or its authorized agent. In addition, you must also (1) remove or disable access to posted material when you have either “actual knowledge” of infringement or “awareness of facts or circumstances from which infringing activity is apparent” (known as “red flag” knowledge), and (2) not receive a financial benefit directly as a result of infringing activity, in a circumstance where you can control such activity. While you must act on actual knowledge or red flag knowledge of infringement, you do not have an affirmative obligation to monitor your service to search for infringement.
What happens if I do not qualify for a DMCA safe harbor?
If an OSP does not qualify for a DMCA safe harbor, a copyright owner may bring suit against the OSP seeking to hold the OSP liable either as a direct infringer, or for its users’ infringing activities under a secondary liability theory. Failure to qualify for a safe harbor, however, will not automatically result in direct or secondary liability. Only if the court finds sufficient evidence that the OSP’s actions constitute either direct infringement or facilitation of its users’ infringing activities, may the OSP be liable in a civil case for both actual and statutory monetary damages (including costs and attorneys’ fees), as well as any injunctive relief that a court finds appropriate.
How do I designate my DMCA agent?
There are two steps to designating a DMCA agent for purposes of receiving takedown notices and counter-notices. The first is to publish the DMCA agent’s name, physical address (street or P.O. Box), phone number, and email address on the OSP’s website in a location accessible to the public. Note that a designated agent may be an individual (e.g., “Jane Doe”), a specific position or title held by an individual (e.g., “Copyright Manager”), a specific department within the OSP’s organization or within a third-party entity (e.g., “Copyright Compliance Department”), or a third-party entity (e.g., “ACME Takedown Service”). The second step is to register the OSP’s designated DMCA agent with the U.S. Copyright Office, who will list the agent in its public online database. More information on designating an agent and registering that designation with the U.S. Copyright Office is available here: copyright.gov/dmca-directory/faq.html. Note that every designation expires and becomes invalid three years after it is first registered with the Office and must then be renewed.
What do I do when I receive a takedown notice?
If the takedown notice substantially complies with the requirements listed above, you must “respond expeditiously” to remove or disable access to the material claimed in the notice to be infringing.
If all of the listed information is not included in the notice, you will have a duty to contact the notice sender or take other reasonable steps to assist in obtaining the information required for the notice so long as they have provided an identification of the copyright work claimed to have been infringed, identification of the material that is claimed to be infringing, and information sufficient to enable you to contact the notice-sender.
You will not be held liable for the good-faith removal or disabling of access to material claimed to be infringing as the result of a compliant takedown notice—even if the material is not ultimately found to be infringing—so long as you take reasonable steps to promptly notify the user who posted the material and comply, if applicable, with the counter-notification process described in the next FAQ.
What do I do when I receive a counter-notice?
If you receive a counter-notice, you must promptly inform the rightsholder who filed the takedown notice. You may then may repost the material in question between ten and fourteen days after receipt of the counter-notice unless, during this ten to -fourteen day period, the rightsholder notifies you that it has filed an action in court seeking to restrain the user from infringing the copyrighted work(s) in question. If you receive such a notification, you cannot repost the material.
What do I do when I receive a subpoena to identify an infringer?
As explained above a rightsholder or her agent may request that a court issue a subpoena instructing an OSP to identify an alleged infringer. This request may be made either contemporaneously with a takedown notice, or after the alleged infringer has issued a counter-notice. Once a court issues the subpoena, the rightsholder may serve it on the OSP.
Once an OSP receives a subpoena to identify an infringer, it must “expeditiously” disclose to the rightsholder or the rightsholder’s agent the information required by the subpoena (such as information identifying the alleged infringer), regardless of any other provision of law and regardless of whether the OSP responds to the takedown notice. For information on legally challenging a subpoena, you should check the court’s local rules and the Federal Rules of Civil Procedure governing subpoenas duces tecum.