The Digital Millennium Copyright Act (the "DMCA") can
help owners of some intellectual property (e.g., copyrights) remove
online infringing content. But, the DMCA does not apply to
trade-secrets. So, what is a company to do if it finds its trade
secrets being infringed on a video hosting site like YouTube?
Terms of Service:
The first thing to do is review the Terms of Service posted on
the internet site. In the Terms of Service, find any provision that
prohibits the posting of infringing materials. Normally, providers
will remove all content if properly notified that such content
violates the Terms of Service and/or infringes on another's
intellectual property rights.
The next step is to draft a notice letter to YouTube identifying
the infringing material and where it can be found, and then
requesting that the provider remove the infringing material. To
file a notice of infringement with YouTube, the company must
provide a written communication that a third party is infringing
its trade secrets and the notification must set forth the following
Identify in sufficient detail the
trade secret that has been infringed.
Identify the material claimed to be
infringing the trade secret listed in item #1 above.
Include the following statement:
“I have a good faith belief that use of the trade secrets
described above in the allegedly infringing videos is not
authorized by the owner, its agent, or the law.”
Include the following statement:
“I swear, under penalty of perjury that the information in
the notification is accurate and that I am the owner or am
authorized to act on behalf of the owner of an exclusive right that
is allegedly infringed.”
Sign the document (electronically or
Include any supporting evidence of
the infringement is based.
Send the written communication to
As a caveat, please note that anyone who signs the notice
letter, and swears that the information contained in the letter is
true, will be liable for damages (including costs and
attorneys’ fees) if they materially misrepresent that a
product or activity infringed the company's trade secrets.
Other content hosting providers may have similar requirements,
but it is critical to check the process for each content hosting
provider to determine that a takedown request includes all the
required information. Even though a takedown notice seems
straightforward, a company should seek the help of experienced
legal counsel to guide them through the process because of the
possibility of misrepresentations. Any misrepresentation could lead
to an award of damages which can be costly for a company.
Experienced counsel can help determine the facts and any supporting
evidence to put an infringer on notice and have the video removed,
restricted, or inaccessible to the public.
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.
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