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Why you shouldn't send a DMCA takedown letter (and a free sample letter in case you do)

Game lawyer Zachary Strebeck looks at the options that an IP holder has when their content is being infringed, and provides a sample DMCA takedown letter.
Perhaps sending a takedown notice isn’t the proper first course of action.

In a previous post, I detailed the law, the process and the contents of a letter that should be sent when someone is infringing on your copyrighted content. It has been brought up to me since then that, perhaps, sending a takedown notice isn’t the proper first course of action. Often, this is the case, for the following reasons.

Why shouldn’t you start with a takedown letter?

  • You could work with the infringer, not against them, in order to benefit both of you
  • The cost of enforcement is more than the detriment of the infringement
  • The infringement is actually benefiting you

Why should I deal with someone who is stealing my content?

There are different types of “stealing.” In some cases, there is outright theft, such as when someone uses the text of your blog post as their own. There isn’t a whole lot to be done there. However, other cases are not so clearcut. For instance, when someone is doing a “Let’s Play” video of your game, many company’s first reaction is to take it down. However, there could be better options. The video may actually be attracting new buyers to your content. Take, for example, videos of a game like Crusader Kings. The game is a little difficult to get into, so watching people play the game can actually break through the difficulty and get more people into it. The same could be said for games like Dark Souls.

A better strategy, in many cases, is to work WITH the “infringer” to the benefit of both of you. Large numbers of YouTube views can generate revenue, get eyeballs on the product and generally improve the visibility of the IP. A licensing or co-branding agreement could be a boon to all parties involved.

So, rather than reaching out first with a takedown that can damage a relationship before it has even begun, making the first move toward a beneficial relationship can be useful in a lot of cases.

Sometimes, you need to go to war, though:

In these instances, it can be useful to strike first with the “nuclear option.”

Understandably, however, there are many instances where the infringing use is damaging either to the reputation of the IP-holder, or the IP itself. I’m not talking about valid criticism, but instances where the IP is being used in a manner that puts it in a poor light. In these instances, it can be useful to strike first with the “nuclear option.”

I’ve provided the following letter template as an informational example for what should be included in a DMCA takedown notice. However, you should contact an attorney prior to sending to ensure that you have the rights that you are claiming and that the information in the letter is complete and correct. An attorney may also be able to help you examine your options in all of the above situations, such as drafting a licensing or royalty-sharing agreement or sending a cease & desist letter.

For a copy of the template, download this pdf - DMCA_Takedown_Letter_Sample.

And, finally, I have a humble request. I’m trying to expand my Twitter reach, so if you like this or any other post, please tweet out the link! Thanks! My Twitter handle is @ZStrebeck


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