Digital Millennium Copyright Act Policy (“DMCA”)

Pursuant to Title II of the Digital Millennium Copyright Act, all claims of copyright infringement for materials residing on Nexcess’s network or servers should be sent in the form of written notice to the Designated Agent for DMCA notices listed below:.

How to Report A Claim of Infringement.

If you believe a Nexcess Customer has posted material that infringes your copyright, a notification of a claimed copyright infringement must be provided via regular mail to the address provided above or via e-mail to abuse@nexcess.net. Nexcess requires the following information (the list below comes substantially straight from the statute 17 U.S.C. Section 512(c)(3); if you do not understand the language, please seek independent advice):

• A physical or electronic signature of the copyright owner, or a person authorized to act on behalf of the owner, of an exclusive copyright that has allegedly been infringed.
• Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works on that site.
• Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit Nexcess to locate the material.
• Information reasonably sufficient to permit Nexcess to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the Complaining Party may be contacted.
• A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
• A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is the owner, or is authorized to act on behalf of the owner, of an exclusive right that is allegedly infringed.

Failure to submit copyright infringement notification as described above will result in no legal notice or action on behalf of Nexcess.

Nexcess does not provide legal assistance to our Customers nor are we lawyers. As such, we strongly recommend you seek legal counsel when making decisions on how to otherwise handle DMCA complaints. The following is meant to give you a brief overview of the process and provide some possible actions and outcomes.

How to Make a Counter Notification.

Whether the content belongs to you or not, you have gotten a notice that someone else is claiming it is theirs. The first step is to remove the content from your site until the case has been resolved. Unfortunately, there's no way around this. Whether you're a mom & pop shop, or a large corporation, if someone is claiming you're infringing on their material, it will need to be removed from your site until the situation has been resolved. We have a responsibility as your web host to make sure the content is removed in a timely manner once the notice has been sent or we face legal repercussions as well. Normally the person claiming a DMCA violation will e-mail both you and us and we'll contact you regardless. After we send you the violation notice we'll give you seven days to take down the material as a courtesy and if you cannot (or will not) remove it then we will do it for you.

Once it has been removed you need to decide whether the content belongs to you or not.

If the content is not yours.

Ensure the content is removed and notify us upon removal. Once we know the content has been removed, we will notify the group filing the claim and let them know the violating content has been removed and the case is resolved.

If the content is yours.

First ensure the content is removed as required by the statute. You can choose to file a counter notification to state that the content in question is your property and you believe that it should not have been taken offline.

Filing a Counter Notification.

If the content is yours and should not have been removed, you will need to file a counter notification in accordance with the DMCA statute. 17.U.S.C. Section 512(g)(3) requires written notice and must include specific information. The counter notification must be sent to our designated agent (listed above). The list below comes straight from the statute. If you do not understand the language, please seek independent advice as Nexcess cannot provide legal assistance.

• A physical or electronic signature of the subscriber.
• Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
• A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
• The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

Nexcess is not required to respond to counter notifications that do not meet the requirements of the statute.

Our designated agent will present your counter notification to the complaining party. Once your counter notification has been delivered, Nexcess is allowed under 17 U.S.C. Section 512 to restore the removed content in 10-14 business days, unless the complaining party notifies us that it has filed an action seeking a court order to restrain you, the subscriber, from engaging infringing activity related to the material in question.

Misrepresentations.

Any person who knowingly materially misrepresents under this section:

1. that material or activity is infringing, or
2. that material or activity was removed or disabled by mistake or misidentification shall be liable for any damages, including costs and attorney’s fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by Nexcess, who is injured by such misrepresentation, as the result of Nexcess relaying upon such misrepresentations in removing or ceasing to disable access to it.

What Should I Do?

We've created the following DMCA infographic to show, in no uncertain terms, exactly what happens when a copyright claim is made under the Digital Millennium Copyright Act (DMCA).

Last Updated: 08.26.2013