WHAT IS A DMCA NOTICE?
DMCA stands for "Digital Millenium Copyright Act." It is a federal law that deals with copyright infringement. A DMCA Notice is a letter that tells a website owner that you own the copyright to your photo. A copyright is not something that you can touch. It is a right. If you take a photo of yourself, you own the copyright to the photo. Even if you physically hand over, text, or email your picture to another person, you still own the copyright. The recipient does not own it.
Website owners are often immune to liability for the actions of third parties on their websites because of Section 230 of the Communications Decency Act. However, if you submit a proper DMCA notice to a website and it does not remove your photos or remove them "expeditiously," you may be able to sue the website for copyright infringement. Because websites don't want to be sued, they will usually comply with DMCA notices.
After you submit your DMCA notice to the website owner, if the website owner wants to ensure protection from liability, he must give the poster several days to file a counterclaim. If the perpetrator does not file a counterclaim, the website should keep your photos off. If the perpetrator does file a counterclaim, he is forced out of his anonymity, because he must use his full, real name, address, and email address. At this point, you must show the website owner proof that you have filed a copyright infringement lawsuit within 10 days, or the website may restore your photos to the website. A website owner may file a counterclaim stating a "fair use" defense. What constitutes "fair use" is ultimately determined by a court.
To attorneys: Before you file a lawsuit for copyright infringement, you must ensure that your client has registered her photos with the Register of Copyright Office.
DRAFT A DMCA NOTICE
To: [revenge porn website]
1. This document is notification of the copyright infringement of my photos on the website, [www.revengepornwebsite.com].
2. I am the copyright owner of the photos posted at the following links:
3. I have not assigned or otherwise granted any rights to any third party in the contents now or previously appearing on [www.revengepornwebsite.com].
4. I hold exclusive rights to the copyrighted materials infringed.
5. The infringed copyrighted work has been identified in Paragraph 2, and the information has been adequately identified to require that such material be removed or access to it be immediately disabled.
6. I have a good faith belief that the use of the copyrighted material in this manner complained of is not authorized by the law.
7. I swear, under penalty of perjury, that the information of this Notification is accurate and that I am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
[Your Name], [your email address]
SUBMIT THE DMCA NOTICE
The Copyright Office has a directory of DMCA agents for online service providers, including websites, web hosts, search engines, social media websites, and so on. Some providers have not listed an agent with the Copyright Office. In this case, I believe that a provider opens itself up to liability for copyright infringement.
1. To identify the website owner, website host, domain name registrar, and, if applicable, the website's proxy server, go to WhoIs.com.
2. If the website owner is listed, submit a DMCA notice to him.
3. If he is anonymous, submit a DMCA notice to the proxy server.
4. If the proxy server does not respond, send a DMCA notice to the website host. The website host may disable the website's access.
5. If the website host does not respond, contact the domain name registrar of the website host. Tell them that the website host is ignoring your DMCA request. The registrar may terminate the domain name of the website host.