How does the dmca takedown notice procedure work?

Digital Millennium Copyright Act (DMCA) Takedown Notice Procedure

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are being hosted by overseas service providers which are often based in the USA.

The Digital Millennium Copyright Act (DMCA) is U.S. legislation which prescribes the DCMA Takedown Notice + DCMA Counter-Notice procedures.

Under the Digital Millennium Copyright Act (DMCA) there is no prescribed form for the DCMA Takedown Notice.

Minimum requirements for a DMCA Takedown Notice

1️⃣ State that you hold a "good faith belief" that the use of the copyright material in such a fashion is not authorized by the copyright holder, the copyright holder's agent, or the law;

2️⃣ State that the information contained in the DCMA Takedown Notice is accurate and that you are authorized to act on the behalf of the exclusive copyright holder for the material in question;

3️⃣ Make all your statements contained within the DCMA Takedown Notice under penalty of perjury (a.k.a a sworn declaration) in a United States Court of law; and

4️⃣ Include your physical or electronic signature.

What does "under Penalty of Perjury" mean?

A sworn declaration (also called a sworn statement or a statement under penalty of perjury) is a document that recites facts pertinent to a legal proceeding. It is very similar to an affidavit but is not witnessed and sealed by an official such as a notary public. Instead, the person making the declaration signs a separate endorsement paragraph at the end of the document, stating that the declaration is made under penalty of perjury. In the USA, the crime of perjury is a felony.

Example: Endorsement paragraph

I declare (or certify, verify, or state) under penalty of perjury that the above is true and correct. Executed on (date).

Be Specific + Accurate

You should make sure that you are specific and accurate when outlining the material you wish to have removed.

This is extremely important as you are making statements under penalty of perjury, but also due to the following practicalities:

✅ The volume of Digital Millennium Copyright Act (DMCA) Takedown Notices issued in the US is high; and

❌ Incomplete or inaccurate submissions are routinely rejected.

Australian "Designated Representative" ➲ USA "Copyright Agent"

Under the Digital Millennium Copyright Act (DMCA) the term "designated representative" we use in Australia is replaced by an equivalent term "Copyright Agent".

Therefore, you should look for the nominated Copyright Agent when you search for the person responsible for Digital Millennium Copyright Act (DMCA) Takedown Notices on any U.S. based website hosting service.

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a USA Attorney for legal advice specifically tailored to your needs & circumstances.