Guide: Digital Millennium Copyright Act or “DMCA”

There’s a lot to understand about copyright, and we’re going to do our best to summarize the main points here. But first, it’s important to know that this guide isn’t a substitute for legal advice, and shouldn’t be regarded that way. Alright, let’s dive in.

This page will give an overview of the Digital Millennium Copyright Act, commonly known as the “DMCA.” If you’ve received a DMCA takedown notice because of an NFT you’ve minted on NFTically or if you’re a rights-holder who wants to file a notice, read on.

What is a DMCA takedown notice?

The DMCA notice and takedown process is a tool for copyright holders to get material that infringes on their copyright taken off of NFTically.

There are two parts to the process: a takedown-notice procedure for copyright holders to request that content be removed; and a counter-notice procedure for users to get content re-enabled if content is taken down inappropriately.

What does a DMCA takedown process look like for both parties?

Step 1: The copyright owner investigates, and gathers documentation. They must conduct an initial research process to ensure that they own the copyright to an original work, and that the content on NFTically is unauthorized and infringes on their right.

Step 2: The copyright owner emails a notice to NFTically. After conducting their research process, a copyright owner prepares and sends a takedown notice to NFTically. If the takedown notice satisfies the statutory requirements of the DMCA, we will send the notice to the affected creator and disable access to the content in question while the dispute is in process.

Step 3: The creator may file a counter notice. We encourage users who have had content disabled to consult with a lawyer about their options. If they believe their content was disabled inappropriately, they may send us a counter notice. If the counter notice satisfies the statutory requirements of the DMCA, we will send the counter notice back to the copyright owner. If the copyright owner does not notify NFTically that they have filed a court action against the creator within no less than ten business days and no more than fourteen business days after receiving the counter notice, we will restore access to the content in question.

As a rights-owner, how do I file a DMCA takedown notice?

In order for a DMCA takedown notice to be viable, it must include:

an electronic or physical signature of the person authorized to act on behalf of the owner of the copyrighted work that is allegedly infringed

a description of the copyrighted work that you claim has been infringed

a description of where the material that you claim is infringing is located on the Platform, with enough detail that we may find it on the Platform

your address, telephone number, and email address

a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law

a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner

Once you’ve prepared this material, send it to notice@nftically.com as a plain-text list in the body of your message. You may also include as a PDF attachment.

Before you file a DMCA takedown notice, please:

Be Truthful.

The DMCA requires that you swear to the facts in your copyright complaint under penalty of perjury. It is a federal crime to intentionally lie in a sworn declaration. (See U.S. Code, Title 18, Section 1621.) Submitting false information could also result in civil liability.

Investigate.

Filing a DMCA complaint against a creator is a serious allegation that carries real consequences for real people. We ask that you conduct a thorough investigation and consult with an attorney before submitting a takedown to make sure that the use isn’t permissible.

Contact the original creator directly.

Before sending us a takedown notice, reach out to the creator directly to see if the issue can be resolved amicably.

As a creator, how do I file a DMCA takedown counter-notice?

**A DMCA counter notice must include:**

your physical or electronic signature

identification of the content that was disabled and the location where it previously appeared

a statement under penalty of perjury that you have a good faith belief that the content was disabled as a result of mistake or misidentification

your address, telephone number, and email address

one of the following statements:

- if your address is in the United States: “I consent to the jurisdiction of the Federal District Court for the judicial district in which my address is located. I will accept service of process from the person who provided the DMCA notification or an agent of such person.”

- if your address is outside the United States: “I consent to the jurisdiction of the Federal District Court for the Northern District of California. I will accept service of process from the person who provided the DMCA notification or an agent of such person.”

Once you’ve prepared this material, send it to notice@nftically.com as a plain-text list in the body of your message. You may also include as a PDF attachment.

Before you file a DMCA takedown counter-notice, please:

Be Truthful.

The DMCA requires that you swear to your counter notice under penalty of perjury. It is a federal crime to intentionally lie in a sworn declaration. (See U.S. Code, Title 18, Section 1621.) Submitting false information could also result in civil liability.

Investigate.

Submitting a DMCA counter notice can have real legal consequences. We recommend conducting a thorough investigation into the allegations made in the takedown notice and speaking with a lawyer before submitting a counter notice.

You must have a good reason to submit a counter notice.

In order to file a counter notice, you must have “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.” (U.S. Code, Title 17, Section 512(g).)

Copyright laws are nuanced, so contact a lawyer for legal advice.

Sometimes a takedown notice might allege infringement in a way that seems odd or indirect. Copyright laws are complicated, and can lead to some unexpected results. For example:

A copyright complaint might be based on non-literal copying of design elements present on your site, rather than the content itself—in other words, they think your design looks too similar to theirs.

Since there are many nuances to the law, it is important to get professional advice if the infringement allegations do not seem straightforward.
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