DMCA clause in Terms and Conditions

Last updated on 01 July 2022 by Legal Research Team at TermsFeed

DMCA clause in Terms and Conditions

DMCA stands for Digital Millennium Copyright Act. This U.S.-based copyright law was passed in 1998 and implements two different World Intellectual Property Organization (WIPO) treaties. These treaties are the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty.

The DMCA is made up of five separate titles that work to protect copyrights.

We'll show you when the DMCA applies to your business and what you need to do to comply with its requirements.

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The DMCA is only applicable for U.S. businesses. For non-US businesses, this kind of clause is usually called a Copyright Infringement clause instead.

You're required by the DMCA to respond to takedown notices and remove any content that users on created and posted on your website or app that they do not own the rights to.

Your platform or online service (which can be a website, a mobile app, a software app, and so on) can allow for user-generated content to be published and made available to the other users, either other registered users or not.

Users need to own the rights to any kind of content they share through your platform. Otherwise, it may constitute infringement of the actual owner's rights.

If the content users post through your website is copyright infringement and you receive a takedown notice from the copyright owner, you're required to respond to the take down if it meets the DMCA requirements.

In order for a "DMCA Take Down Notice" to be sent to you by an author (owner of copyright content) who may have found infringing content on your platform, the notification should meet the following requirements and include the following information:

  • Have an electronic or physical signature of the copyrighted work owner (or authorized person)
  • Include a description of the copyrighted work, including the URL where this infringing content is available or a copy of it
  • Include the contact details of the person submitting the notice: An email address, telephone and address
  • A statement in "good faith belief" that the work is not authorized by the copyright owner
  • A statement by the person who sends the takedown notice that the information included in the notice (all the above information) is accurate and that the person sending the notice is either the copyright owner or authorized to act on the copyright owner's behalf

Note that there are a number of exceptions to the DMCA. These exempt certain activites related to nonprofit libraries, educational institutions, archiving activites, investigations, protective and security activity and government activity.

You can read Copyright Law - 17 U.S.C 512(c)(3) for more information.

DMCA Clauses and Notices

A "DMCA clause" in a Terms and Conditions agreement informs copyright authors that you (your company) will respond to takedown notices and remove any infringing content if that content is copyright infringement.

In your Terms and Conditions agreement (also known as Terms of Use or Terms of Service) - the agreement that users should agree to when they register an account with you - specify and inform users that any content they post, create or make available through your website must be their own, i.e. they must own the rights to that content.

Usually this kind of section in most Terms and Conditions agreements is added at the Content clause, but you may also find a separate DMCA Notice clause in the agreement.

A DMCA Notice or Copyright Infringement clause would inform authors that any infringing content they have found on your platform can be taken down if it meets the requirements explained in your agreement.

500px informs account owners in their Terms of Service page that users must own the rights to the content they post on 500px:

You are the owner of all rights, including all copyrights in and to all Content you submit to the site:

To meet the requests of potential authors who found infringed content on 500px without their authorization, the Terms of Service agreement of 500px includes a Copyright Complaints clause:

Copyright Complaints in 500px Terms of Service

And here's how eBay includes this information in a short clause in its User Agreement. Note that it links to a separate page, which is a great way to get more detailed information out while keeping your Terms agreement shorter and easier to digest:

eBay User Agreement: Notice for Claims of Copyright Infringement under DMCA clause

As eBay does, you can include the "DMCA Notice" clause for informing copyright owners as a separate page, titled DMCA or Copyright, that only deals with copyright-related guidelines and rules.

A separate page for DMCA and Copyright is better if your entire website and/or mobile app is heavily reliant on user-generated content, e.g. such as YouTube, Vimeo or 500px.

Heroku has a separate DMCA Notices page with all the necessary information needed in order for someone to send in a compliant. It includes a list of exactly what information must be provided, how it must be provided (in writing), and includes the mailing address and other contact methods for the company:

Heroku DMCA Notices instructions page

YouTube has this kind of page, named Copyright:

Copyright link in YouTube footer

Clicking on the "Copyright" page from YouTube leads you to a special designed page that deals with copyrighted works available through YouTube:

YouTube submit Copyright Infringement

Submitting a "DMCA Notice" to YouTube is done through a web form:

If you believe your copyright-protected work was posted on YouTube without authorization, you may submit a copyright infringement notification. These requests should only be submitted by the copyright owner or an agent authorized to act on the owner's behalf.

The fastest and easiest way to notify YouTube of alleged copyright infringement is via our webform:

Submit a copyright complaint

If you choose to request removal of content by submitting an infringement notification, please remember that you are initiating a legal process.

Do not make false claims. Misuse of this process may result in the suspension of your account or other legal consequences.

If you are a company and own exclusive rights to a large amount of content that requires regular online rights administration, you may want to apply for access to YouTube’s Content ID system or to our Content Verification Program.

We will also accept free-form copyright infringement notifications submitted by email, fax and mail.

Dropbox places a "Copyright" clause in their Terms of Service page that's used to inform authors that Dropbox will respond to notices of alleged copyright infringement. It then redirects authors to the Dropbox's DMCA Policy page:

DMCA Notice in Dropbox Terms of Service

It also provides a webform that makes it very easy and understandable for anyone who wants to submit a notification of claimed infringement:

Dropbox DMCA Notification of Claimed Infringement webform fields

DMCA Counter-Notices

After a DMCA notice is filed, and if the content in question gets removed, the individual who posted the information has the opportunity to have the content reposted again and the claim of infringement removed.

This is an important right, as otherwise copyright owners could far overstep their legal rights at the expense of the right to share content.

You should include a clause and instructions that let users know how they can file a DMCA counter-notice if they believe their material has been removed by misidentification or mistake.

Here's how 500px does this with instructions on how to "restore content removed from the website:"

500px Terms of Service: Filing a DMCA Counter-Notice to Restore Content Removed clause

Here's how Tumblr's Terms of Service informs users how to submit a DMCA counter-notification. Note that the structure is the same for submitting a counter-notification as it is for submitting a notification - a list of what information is needed, and who to send it all to:

Tumblr Terms of Service: Submit DMCA Counter Notification

Both of these clauses will be similar in structure, just opposite in content. For example, look at how similar, just reversed, these DMCA clauses are from GitHub. One is for how to submit a complaint:

GitHub: How to submit your DMCA complaint

The other is for how to submit a counter-notice:

GitHub: How to submit DMCA Counter-Notice

To summarize, you should include a DMCA clause in your Terms and Conditions agreement to let users know that you honor the DMCA.

Let users know how they can submit a takedown notice. Include clear instructions or a webform.

Also let users know how they can dispute any takedowns via a counter-notice. Again, include clear instructions or a webform for submitting counter-notices.

If you have a webform or extensively detailed information, you can create a simple, short clause in your Terms and Conditions agreement and provide a link to the separate form or page within the clause. This will keep your Terms and Conditions looking neat and easy to read.

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Legal Research Team at TermsFeed

This article is not a substitute for professional legal advice. This article does not create an attorney-client relationship, nor is it a solicitation to offer legal advice.