Revenge Porn Victim Representation: Understanding the DMCA Takedown

What is a Digital Millennium Copyright Act, aka, DMCA “takedown,” and what is its applicability to online Revenge Porn in New York and elsewhere? In the simplest terms, often associated with copyright infringement, a takedown is part of the notice and take down process operated by online hosts in response to a court order or allegations that their content is illegal. Although not required, because there are many pieces to an online Cyber Stalking, Sextortion or Revenge Porn campaign of shame, attorneys representing victims of computer based sexual abuse and embarrassment routinely spearhead what DMCA Takedowns as a piece of the larger puzzle to rid the internet of humiliating Revenge Porn. Regardless of who commences the action, upon receiving a DMCA notice, the content – a naked picture, a video of a sex act, etc. – is then removed by the host whether it is posted or uploaded to Instagram, Facebook, YouTube or Tumblr or other website.

Revenge Porn and the DMCA: Applicability of the Takedown Law

As stated in the DMCA, even though an Internet Service Provider (ISP) is not considered liable for transmitting information that may infringe on a copyright, the ISP is required to remove materials from users’ websites that appear to constitute copyright infringement after receiving proper notice. If they fail to do so, they will become liable. Unlike most copyright infringement remedies, when it comes to Revenge Porn, a copyright does not have to be registered with the U.S. Copyright Office for the owner of the material to apply this DMCA provision. When a victim of Revenge Porn has taken the image or video themselves, they are considered the copyright holder from the moment of the image or video's creation. In other words, press the button to take a picture or video and its yours whether its your shoe, your hair, or, your breasts. When you, the owner, discover your image or video online without your consent it is a violation of your rights under copyright law. Armed with this statute, now your Revenge Porn attorney or Online Harassment lawyer has sharp canines to sink into the neck of a victimizer and not a mere bark.

The first step in attempting to remove explicit sexual and intimate content from the internet is submitting a DMCA takedown notice to the site hosting the picture. Some websites have their own takedown request forms or submission pages readily available. Intimate Selfies or self-filmed videos can also be removed from search results by issuing a notice to a search engine like Google, Bing or Yahoo.

Should you find yourself in a situation where you need to submit a Takedown Notice, it is wise to do a few things first. Even if you're not sure about pursuing criminal action, preserve the “evidence” or risk losing the means to pursue legal action later. It is of critical import that copies of the private images and videos, screen shots of search results that lead to the Revenge Porn, links of webpages hosting them as well as the URLs, and texts, emails and any other communications regarding the Revenge Porn is saved. The next step is to locate where a Takedown Notice should be sent – Pornhub, Twitter, Instagram, Reddit, etc. The DMCA requires that ISPs provide the Register of Copyrights with contact information for a designated agent specifically set up to receive all Takedown notifications. Finding the correct person may involve a domain search if you are not sure who hosts the website(s). Some ISPs may have a DMCA takedown form or DMCA agent email address provided on their site. However, there is no consistent location for this information. Sometimes it can be found under “Copyright” or “Terms and Conditions.” If an email address or online form is not provided, you then will need to submit your notice directly to the designated DMCA agent in the manner they request. If you cannot find the DMCA agent contact on the website, the Register of Copyrights has published a directory of agents online that you can search. At bottom, with so many variables, your legal advocates representing you in the larger Revenge Porn or Sextortion victimization should lead this charge.

Complicating matters for an unrepresented victim of Revenge Porn in New York or elsewhere, when no online form is available, the notice will still need to contain some very specific information. Keep in mind that the DMCA lays out the information that must be included in a Takedown Notice, not the ISP, search engine, website, social media platform, or even the DMCA Takedown agent. You will need to provide you name and contact information in a takedown notice, identify the images or videos along with links to them, a statement declaring that you are the owner of the contact and have not given permission for their use, a declaration of good faith, a statement requesting that the material be removed or access to it disabled, and swear, under penalty of perjury, that the information of your notification is accurate and that you or the person submitting the notification is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Considering the level of detail and nature of DMCA Takedown Notice, copyright law, and whether the removal of explicit and intimate imagery is part of a larger plan involving a cease and desist, Order of Protection, lawsuit, prosecution, or combination of any of these, failure to consult with an attorney during any stage of this process can compound an already ugly situation. To limit future exposure, an embolden tormentor from violating your trust further and to best ensure you online – and offline – reputation is protected, there is no substitute for experienced and knowledgeable legal advocates. No matter the humiliation you may feel, the New York Revenge Porn copyright attorneys and former Manhattan prosecutors will stand by your side to lift you up, erase your shame and make your abuser regret the day he or she let arrogance overcome good judgement.

Call the New York Revenge Porn lawyers, DMCA attorneys and former Manhattan Assistant District Attorneys at (212) 312-7129 or contact us online today

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