DMCA – I’ve sent a notice, so now what?

Once you’ve sent your DMCA takedown notice, the host will likely do one of three things:

  • Ignore the notice
  • Ask for additional information or for missing wording
  • Forward the notice to the customer and request that the materials be removed

The first option, ignoring the notice, is typically a bad idea for hosts given the imbalance between statutory damages and the cost of simply removing the materials. Unless the notice is manifestly inaccurate or abusive, most hosts will at least ask for additional information.
Typically, when my clients ask for more information it’s for one of two reasons: either the materials haven’t been identified in a way which allows them to be verified, or the notice is missing some of the “magic words” which Congress, in its infinite wisdom, decided are necessary. Most hosts will want to at least have some sense that the materials in question are on the website and match the allegedly infringing materials, so make sure the links are precise enough to allow them to do that. And, for heaven’s sake, just include the “good faith” and perjury language – whether you like it or not, it’s a requirement under the law, so it needs to be there.
Typically the host will give the customer a few days to remove the materials – according to the statute, materials must be removed “expeditiously,” but as far as I know that hasn’t been litigated, so no one knows exactly what that means. It’s probably safe to say that up to three days is pretty safe, a month would not be, but where that line is drawn probably depends on the specific facts of the situation. A small host with limited staff would probably get a little leeway on a late removal, whereas Google or Yahoo might not.

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