As a video game developer or content creator, you may find yourself facing unexpected Digital Millennium Copyright Act (DMCA) takedown notices. This happens when someone believes that your game or content infringes on their copyright and requests that the platform hosting your game or content, such as Steam or YouTube, take it down.
In practice they can occur under the following circumstances:
Let’s say you create a game that includes music from a popular band without obtaining the proper license. The copyright holder of the music may file a DMCA takedown notice with the platform where your game is hosted, such as Steam, requesting that it be taken down because it infringes on their copyright. If the platform receives the notice and determines that it is valid, they may remove your game from their platform and notify you of the takedown.
The primary objective of DMCA takedown notices was to protect digital content and prevent copyright infringement online while also providing protection to platform operators against a multitude of potential lawsuits they could face. Failure to act on DMCA notices could potentially result in legal action being taken against the platform operator for allowing copyright infringement to occur on their platform. In most cases, this means that platforms are more likely to automatically take down the content rather than conduct a thorough validity assessment.
The DMCA Process for Steam:
Steam, the popular digital distribution platform for PC games, has its own DMCA process. If the copyright owner believes that a game or content on Steam is infringing on their copyright, they can file a DMCA takedown notice with Steam. Once Steam receives the notice, they will remove the game or content in question from their platform and notify the developer or content creator of the takedown.
While Steam makes an effort to be diligent in its review process, they also use automated tools to assist in the process. This means that there is a possibility that a takedown notice could be filed and acted upon incorrectly, causing a game or content to be taken down without valid reason. In such cases, it is important for developers and content creators to file a counter-notice to contest the takedown and potentially have their game or content restored to the platform asap.
To counter a DMCA takedown notice, the developer or content creator must file a DMCA counter-notice with Steam. This notice should include:
- A statement that the content was removed in error or misidentification
- Contact information for the developer or content creator
- A statement that the developer or content creator consents to jurisdiction in the U.S. Federal District Court for the judicial district in which they are located
If the copyright holder does not file a lawsuit against the developer or content creator within 14 days of receiving the counternotice, Steam will restore the game or content to their platform.
General tips on How to Avoid and Deal with DMCA Takedown Notices:
Prior to a DMCA takedown notice:
- Obtain proper licenses: To avoid DMCA takedown notices, ensure you have the correct permission for all copyrighted materials used in your games or content.
- Monitor your content: Regularly monitor your game or content to ensure that it does not infringe on anyone’s copyright. If you receive a DMCA takedown notice, review the notice carefully to determine if it has merit.
Following a DMCA takedown notice:
- Act swiftly. Each day prolongs the process and increases damage.
- File a counter-notice: If you receive a DMCA takedown notice that you believe (strongly) is incorrect, file a counter-notice promptly. This will allow you to contest the notice and potentially have your game or content restored to the platform.
- Seek legal assistance: If you are unsure how to handle a DMCA takedown notice, seek legal assistance from a qualified attorney with experience in intellectual property law. A properly written and addressed counter-notice can speed up the whole process, and you can obtain more information if the takedown notice is valid or unfounded.
- Communication with your community. Avoid communicating anything about the situation that could be used against you in the future, such as sharing the counterparty’s personal data, sharing inaccurate statements. It’s usually sufficient to post that you’re addressing the situation during the counterclaim period and only comment with more information and a calmer head.
- Communication with the counterparty. It’s important to at least try to communicate with the other party, even if it may be unpleasant. Negotiating an agreement is almost always a quicker and more cost-effective solution than litigation.
Common questions on handling a DMCA notice:
Q: Can I simply file a counter-notice to contest a DMCA takedown notice and have my game or content restored to the platform without any further issues?
A: While filing a counter-notice is an option for contesting a DMCA takedown notice, it may not necessarily provide a guaranteed solution without any further issues. There are potential risks involved such as the possibility of facing legal action or penalties if the counter-notice is filed and it is discovered that you knew that you were infringing on someone’s copyright. It is important to carefully evaluate the situation and seek legal advice before deciding whether to file a counter-notice to protect your rights and interests.
Q: What does it mean when a developer or content creator consents to jurisdiction in the U.S. Federal District Court?
A: By consenting to the jurisdiction of the U.S. Federal District Court where you are located, you are agreeing to submit to the court’s authority and jurisdiction over any legal disputes related to the DMCA takedown notice. For European developers or content creators, this may involve agreeing to the jurisdiction of the court where the platform is located (District Court for Western Washington) and potentially having to fight your case in the US. This is the case for example with Valve, the owner of Steam.
Before deciding whether to defend yourself in court, it is crucial to carefully consider the potential legal and other costs involved.
Q: What happens if the copyright holder files a lawsuit during the 14-day period after the DMCA counter-notice has been filed?
A: If a lawsuit is filed within the 14-day window, Steam may keep the game or content down until the trial’s conclusion. The judge may also order the platform to take certain steps such as restoring or keeping the game off the platform during the litigation or withholding the developer’s profits as collateral for legal fees. However, it’s uncommon for the copyright holder to file a lawsuit after the counter-notice has been filed, unless there is a clear case of copyright infringement.
If you are a game developer or content creator facing a DMCA takedown notice or unsure about your intellectual property standing, Sparring can assist you in navigating the complexities of intellectual property law. Our Gaming desk can help you file a DMCA counter-notice and negotiate a solution to avoid costly litigation and restore your game or content. If you need legal assistance or have any questions, please reach out to us at firstname.lastname@example.org.