As we all know, NFTs have gone wild the last few months. Many OG NFT artists are finally getting the appreciation they deserve for thier art. And some creative content creators have found ways to use NFTs to share thier content in cool new ways.
A little background for why I am writing this now
Recently, twitter user and Medium publisher Akado used NFTs to sell access to a fundamental analysis report on the current state of decentralized finance. See the Medium article announcing this here https://akado.medium.com/fundamental-analysis-a-warmer-winter-powered-by-defi-3e32733f3d79
Akado’s similar report released in 2020 turned out to be pretty helpful to say the least, and many of the projects he discussed provided associated token holders with hefty gains. So, suffice it to say there was a lot of demand for the 2021 version.
The novel release method only added to the buzz. The document was put up for sale as a limited number of NFTs, and purchasers of the NFTs were given access to the password protected document. It was novel, creative, and utilized pure supply and demand economics.
The release went off as expected, with the first copy selling for 6.3 ETH and the remaining 14 copies selling for 7.3 ETH each. Akado got his deserved compensation for his hard work, and the buyers got access to likely undervalued information.
But, of course, leave it to crypto for some people to try and scam thier way to more. Some initial buyers tried reselling the NFTs, likely after leeching the alpha from the report out first. But, that was OK because Akado is sharp and set royalites to 100% — meaning he still got paid and the resellers got nothing. Freaking chad move right there.
The reseller’s weren’t the problem, though. The problem was that one user made copies of the NFT and began reselling those copies. In the traditional world, we call this copyright infringement. In crypto, however, many people just accept it as part of the territory.
It’s not right, though. And for as much as people say that IP laws are merely weapons for rentseeking trolls, Akado spent time and energy putting together his alpha report. He’s also given tons of free alpha to the crypto community in the past. If traditional finance firms can charge thousands for mainstream cookie-cutter analysis, we should at least protect our own and do what we can to ensure our community isnt screwed out of compensation for thier work.
This goes not just for Akado, but for our many awesome crypto-native artists. If you are in crypto, then I want to give you at least some of the weapons to protect you, your work, and your money. Because that’s what we do.
How to use the DMCA takedown procedures to remove infringing works from websites, be they NFTs, articles, photos, videos, or music.
The Digital Millenium Copyright Act (“DMCA”) is a US Federal Law that provides a safe-harbor for internet service provides (“ISPs”) from lawsuits for copyright infringement. It came about because in the early days of the internet, ISPs like Google and Youtube were getting sued by copyright owners when users posted copyright infringing works on thier websites.
So, Google and other tech-titans lobbied Congress and got Congress to pass the DMCA. The DMCA in essence says that, so long as the ISPs dont publish the infringing works themselves and take certain steps when notified that infringing works are on thier websites, the ISP’s could not get sued for copyright infringment. Complying with DMCA takedown requests is one of those things they have to do.
So, if an ISP (basically any website) receives a valid DMCA takedown request they MUST remove the infringing work or they risk losing thier immunity from copyright infringement lawsuits. There are a few exceptions, but those are outside the scope of this article.
Before we go forward, I have to say, this isnt legal advice. This is for educational purposes only.
Step 1. Make sure the suspected infringing work is actually infringing your work.
You need to make sure that you are the owner of the copyright of the original work. You also have to make sure the work you think is infringing your copyright is not protected by things like the First Amendment or fair use. Generally, if they are commericalizing it (making a profit financially or commercially) its probably not protected. Finally, you need to make sure the suspected infringing user doesn’t actually have permission to use the work, i.e. you previously gave them a license to use it the way they are currently using it.
I have to add here, that the malicious use of DMCA will expose you to liability for damages. So, if you do not satisfy the above, then you shouldn’t use DMCA or else you could get sued. If you have any questions, you should probably check with a copyright lawyer first.
Step 2. Identify the website DMCA Designated Agent.
Every website MUST have a designated DMCA agent to receive takedown requests otherwise they lose thier immunity. You can normally find this information in the website’s terms of use under the DMCA or Intellectual Property sections.
If you cant find it in the website’s terms, then there is a directory at https://www.copyright.gov/dmca-directory/
Step 3. Draft a valid takedown request.
The DMCA provides the requirements for a takedown request to be valid and trigger the website’s responsibility to remove the infringing work. Here is a template that I have used in the past.
Copyright Agent
[Company]
[Address]
[email]
Via Email & Certified Mail
Re: DMCA TAKEDOWN REQUEST
NOTICE OF INFRINGMENT OF COPYRIGHTS OWNED BY [owner]
DEAR COPYRIGHT AGENT:
This is a notification under 17 USC Section 512(c)(3). I am the sole and exclusive owner of certain exclusive rights that are being infringed on your website at [website url].
I hereby request and demand that the infringing works identified below be expeditiously removed or that access to such works be expeditiously disabled: The attached spreadsheet identifies the infringed and infringing works, as well as the infringing users.
I believe, in good faith, that the use of the infringing copyrighted works at [website url] is not authorized by its agent, or by the law. I hereby state under penalty of perjury that the information in this notification is accurate, and that I am the owner of an exclusive right that is being infringed.
Please address any correspondence regarding this matter to the undersigned. My contact information is provided below.
Sincerely,
[signing party — MUST be signed, electronic signature is ok]
[address]
[phone]
[email]
(you must provde a means for them to contact you)
Enclosure.
ENCLOSURE 1
Table of Infringed works, infringing works, and location of infringing works.
Identification of Copyrighted Works
Identification of Infringing Works and URLs
Step 4. Email, Mail, Fax the DMCA takedown request to the website’s DMCA Designated Agent
Some websites provide email or fax contact information of the designated agent, so you can send it whatever methods are available. Some websites may even have a DMCA webform that allows you to simply fill in the blanks and submit.
A good practice I use is even if I email it or submit it via webform, I like to send a hard copy via certified mail. That way, if they try and say they never recieved it I have proof.
Final Notes
There is also a method for the alleged infringer to submit a “counter notice” essentially saying that they do have the right to use the work and were not infringing. If that happens, then your only recourse is to threaten a copyright infringment lawsuit againt the poster.
To file a copyright lawsuit, you have to have registered your work with the United States Copyright Office first. It will also be pretty pricey attorney-fee wise. Either way, that is beyond the scope of this article.
Hope this helps! Sorry it was so long. Feel free to DM me on twitter with any questions @Sat_P_
