A DMCA Takedown Notice Has Been Issued Against My Item. What Does This Mean?

When someone believes that an item on the marketplaces has violated their copyright, we ask that they send support a copyright or DMCA take down notice. A DMCA take down notice is a serious legal document in which an individual swears under penalty of perjury that they are the legal copyright holder to the allegedly infringing item/s.

When Envato support receives a valid DMCA take down notice, we will:

1. Remove the item in question from the marketplaces.
2. At our discretion, freeze earnings of the author from the sale of the item, as per the Membership Terms and Conditions.
3. In some cases, disable the account from which the item in question was uploaded for sale.
4. Notify the author and send them a digital copy of the DMCA take down notice.

Frequently Asked Questions

What do I do now?
You should consider whether or not there has been a breach of copyright of the person who sent the take-down notice.  The best approach is to attempt to resolve the matter with that person directly.  You should also consider whether to obtain your own legal advice if the situation warrants, for example, if you are unsure of whether there has been a breach of copyright, or if you are unsure how to respond to a demand from the other person.

I do not agree that there has been a copyright violation – what do I do next? Can the item be reinstated?
The author has an option to issue a counter notification or “put back” notice.  This is an option that should be carefully considered and fully understood before being adopted, because it is possible that a counter notification can trigger legal proceedings from the other person about the alleged copyright infringement.  Authors should obtain their own advice if unsure about this option.

If Envato receives a counter-notification, we will send a copy to the other person who sent the take-down notice, then wait 10 business days.  Unless we receive a notice from that other person that they have filed a court proceeding against the author within that time, Envato will then reinstate the item within 14 business days from when we received the counter notification.

The counter notice should include the following things:

1. 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.
2. A statement under penalty of perjury that the author 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. (Ideally the author would include an explanation of why the item should be reinstated.)
3. The author’s name, address, and telephone number.
4. If the author is a US resident, a statement that the author consents to the jurisdiction of Federal District Court for the judicial district in which the author resides. If the author resides outside of the United States, a statement that the author consents to the jurisdiction of Victoria, Australia (where Envato is located).  Include a statement that the author will accept service of process from the person who provided the original notification, or an agent of such person.
5. A physical or electronic signature of the author.

There may be other situations in which an author’s item can be reinstated, such as where the material in dispute can be removed altogether from the author’s item.  Contact support to discuss if relevant.

How can I unfreeze earnings or have my account reinstated?
Release of frozen earnings will occur at the discretion of Envato (eg if the person issuing the notice retracts the allegations), if Envato is compelled to do so by a binding order issued by a relevant judicial authority, or under a relevant agreement settling the dispute.  Reinstatement of an account will occur at the discretion of Envato; please contact support to discuss.  Note that we will be very unlikely to reinstate accounts of authors who have the subject of repeat or numerous take-down notices.

How do I resolve the issue with the person who sent the take-down notice
Take-down notices will be issued in a variety of circumstances, and Envato is unable to give specific advice to authors.  Authors should consider whether they need their own advice.  There are many factors that both parties will need to consider, and they include the following things:

1. Whether the author’s item was independently created, timing of creation of each work, and other copyright law issues such as whether any defences apply.
2. Whether the work of the other person has the same scope as the author’s item, or whether it is just one component of the author’s item (eg a graphic within a website template).
3. Whether the other person is seeking monetary payment from the author, or simply to have the author’s item taken down permanently.  If monetary payment is claimed, relevant factors include the author’s earnings from the sale of the author’s item, what fee might be appropriate, and whether the other person’s work was included in the downloaded file or used in some other way (eg on the author’s own site, in the author’s own live preview, in the author’s marketing material).
4. Whether the work claimed by the other person can be removed from the author’s item (eg one component of a web template).
5. The location of each party and relevant legal forums for resolving disputes.