United States: A DMCA Plan For Dealing With The Total Wipes Out There (Video Content)

Last Updated: March 3 2015
Article by Justin F. McNaughton

Last week, TorrentFreak reported on the world's most idiotic copyright complaint by a company called Total Wipes. Total Wipes is a German company that sends automated copyright infringement takedown notices to Google and other companies. Total Wipes apparently has had a few glitches in its automation over the years, once sending takedown notices based on articles with the word "hide" in them. According to an email apology from Total Wipes (kindly provided by ArsTechnica), the latest glitch was based on articles with the word "download" in them. Considering the Electronic Frontier Foundation reports that Total Wipes sent approximately 12,000 copyright takedown notices to Google in the last month alone: Yikes!

Backing up to give some context, the Digital Millennium Copyright Act (DMCA) set up a system almost 20 years ago that allows electronic service providers to avoid liability for "contributing to infringement" when third parties publish infringing content . Note: anyone with a website or service that allows third parties to post is a service provider and can take advantage of the DMCA process.

The idea is that if a third party posts something to your website, you are not responsible for it IF:

  1. You register with the copyright office as a service provider and follow the DMCA takedown rules.
  2. You didn't know about the infringing content.
  3. You didn't moderate/edit the posts before they were published.
  4. You were not paid directly for publishing the infringing content.
  5. Promptly after becoming aware of infringing content, you took it down.

You can imagine that with a single company sending 12,000 takedown notices a month just to Google, that these companies have a system to manage the chaos.

Receiving DMCA Takedown Notices

Indeed, the DMCA requires certain information in an effective takedown notice. As a company, you may as well structure your reporting system to require this information so that you don't spend a bunch of time chasing down incomplete takedown notices. Take a look at Google's DMCA takedown notice portal if this doesn't quite make sense in the abstract.

Based on DMCA, your reporting notice portal/form should specifically ask for these things:

  1. Handwritten or electronic signature of the complaint submitter.
  2. Identification of the original copyrighted work (i.e., description of it).
  3. Identification of a location of the original copyrighted work (i.e., a url location).
  4. Identification of the allegedly infringing work and its location (i.e., a url location).
  5. Name, address and email address of the complaint submitter so you can contact them.
  6. A statement that the complaint submitter has a good faith belief that the material is not authorized.
  7. A statement (under penalty of perjury) that the complaint submitter believes the notice is accurate.
  8. A statement (under penalty of perjury) that the complaint submitter is authorized by the owner to submit the notice.

If someone messes up the notification, the good news is that the statute says a faulty notice won't make you "aware" of the infringement. The bad news is that it requires you to contact the submitter to get the missing information, which is why I suggest using your form/portal to lead the submitter to the correct notice. Also consider requiring a different notice for each infringement to avoid confusion during processing.

Taking Down the Material and Notifying Your User of a Notice

To benefit from DMCA after receiving a notice of copyright infringement through your DMCA form/portal:

  1. Take down the content as quickly as you can.
  2. Send a notice to your user that you took the content down and informing them about the takedown notice (probably easiest to forward it to the user).
  3. Provide your user instructions for submitting a counter notice (response).

Accepting Counter Notices from Users

Think about the nightmare Google must have had if most of those 12,000 notices last month triggered counter notices that Total Wipes was insane. Here again, it is easiest to lead your users to file the particular information you need to evaluate the user's response to the takedown notice.

Based on DMCA, your counter notice portal/form should specifically ask for these things:

  1. Handwritten or electronic signature of your user.
  2. Identification of the material that was removed (i.e., a description).
  3. Identification of the location where the material was located (i.e, the url).
  4. A statement (under penalty of perjury) that your user believes in good faith that the removal was a mistake or because of a misidentification.
  5. Name, address and telephone number of the user.
  6. A statement that the user submits to jurisdiction in the Federal court for the user's address (if U.S. address) or for the address of your company (only if non-U.S. user address).
  7. A statement that the user will accept service of process from the person who submitted the notice in that jurisdiction.

Processing Counter Notices from Users

So Google had the unfortunate obligation to process all of the counter notices submitted by users who received improper takedown notices from Total Wipes. Similarly, when you get a proper counter notice saying a takedown notice was improper because of mistake or misidentification:

  1. Promptly send the counter notice (from your user) to the original complaint submitter.
  2. Inform the original complaint submitter that you will replace the original content within 10 business days.
  3. Actually replace the original content within 10 business days.
  4. Note: If the original complaint submitter provides you notice that it has sued your user, then don't put the content back up.
  5. Take a deep breath because, with any luck, you're done.

It seems like a lot and, like any legislative safe harbor, it seems complicated. It is, but consider that before the act Google would have had a potential for resolving 12,000 lawsuits and somehow the process seems more manageable.

It is a bummer that some people are Total Wipes when it comes to this stuff, but once you have a system for managing the notices, you can dramatically reduce your risk of liability for contributory infringement. If you enjoy reading statutes, the text of DMCA is here.

Below is a great parody clip about DMCA (that likely survived a takedown notice because of " fair use"!). If you're curious about the Stallman reference, this will explain the joke.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Justin F. McNaughton
In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions