While the DMCA Takedown Notice is a very effective tool in the United states and generally is successful in rectifying copyright infringement issues on the Internet, using a standard DMCA takedown notice with European Internet providers delivers a less certain outcome . This is because the DMCA (“Digital Millennium Copyright Act” of 1998) is strictly a construct of United States law, and therefore carries little weight with overseas providers. So if you believe your copyrighted material is illegally posted by a website which is hosted in the Netherlands, requesting your illegally-posted material be taken down requires a different approach.
Some of the more controversial Internet websites have moved their hosting to countries which are known to be “DMCA unfriendly” in an attempt to immunize themselves against the U.S.-based copyright law. Iceland, Sweden, Switzerland, Norway, and the Netherlands are offshore countries which enjoy a reputation for being more resistant to DMCA takedown requests.
While the United States has the fully-documented DMCA process to remove illegally copyrighted material from the Internet, the Netherlands has enacted their own “Notice-and-Take-Down Code of Conduct”. The Code establishes a procedure to notify Dutch hosting providers about online content that is unlawful. Unlike the DMCA in the Unites States, however, compliance with the Code in the Netherlands is strictly voluntary and does not involve any legal obligation. To date, most of the more reputable Dutch ISP’s (Internet Service Providers) make it known that they work with the Code on their websites.
How To Write Your Takedown Request for Dutch ISPs
While the DMCA Takedown Notice has a fairly static format, the Dutch NTD Code does not provide a detailed procedure and template for takedown requests. In theory, every participating ISP will have it’s Notice and Take Down (“NTD”) procedure available to the public. So the suggested first step would be to visit the Dutch ISP’s website, try and find the page outlining their policy on copyright violations, and from there determine what their policy and procedure is in terms of submitting takedown notices.
In the absence of such guidance from the hosting provider, based on what has been posted on some Netherlands-based ISP “legal” pages, I would suggest the following information be included:
- Contact details of copyright holder (and authorised person serving notice if applicable);
- A description of the unlawful content and sufficient information to locate and identify allegedly infringing material (web address of specific page (URL), etc.).
- A statement of the reasons why the Third Party Content is unlawful, illegal or otherwise harmful, in your opinion;
- A statement of the reason why the hosting provider is being approached as the most appropriate intermediary to deal with this matter. This might include proof of failed attempts undertaken by you to contact the website Publisher and results of these attempts (e.g. emails);
- A statement of submission to the exclusive jurisdiction of the Dutch courts, for purposes of this matter.
- Signed declaration of good faith on pain of perjury, you are the right holder (or are authorised to act for right holder), all information contained in the takedown notice is accurate, genuine and that the allegedly infringing material is not otherwise authorised by the copyright holder, their agent, nor by law.
To re-iterate, compliance with the Dutch NTD Code of Conduct is strictly voluntary, so the Dutch ISP may or may not honour your takedown request. The more reputable ISP’s generally will, provided they have all the information they require and are sufficiently convinced you are the actual copyright owner. If your request is rejected, the ISP should be able to explain why, and give you a chance to provide further information and resubmit your request. Given you have nothing to lose but the time it takes to write up the request, I would suggest it’s worth a shot.
By Bruce Haydon