If you believe that material available on our sites, including those hosted by Divi Space Hosting, infringes one or more of your copyrights, please notify us by providing a written notice (“Infringement Notice”) containing the information described below to the designated agent listed below.
Upon receipt of a valid and complete notice, Divi Space Hosting will remove the material and make a good faith attempt to contact the party that made such material available by means of the most recent email address, if any, provided by such party to Divi Space Hosting.
Your Infringement Notice will be forwarded to the party that made the material available and also may be sent to third parties such as ChillingEffects.org. A note will also be placed on the site in question detailing the name of the copyright holder who submitted the takedown notice.
Before submitting a DMCA notice, it’s important to consider if the manner in which the material is used falls under fair use. You are required to give consideration to whether a use of material is fair before submitting a takedown notification, as a result of the decision in Lenz v. Universal. If you are not sure whether material infringes your copyright, or if it is subject to fair use protections, you should first consider seeking legal advice.
Please be advised that you will be liable for damages (including costs and attorneys’ fees) if you materially misrepresent that material or activity is infringing your copyrights.
As required by the DMCA, we have a policy to terminate users and/or sites that we consider to be repeat infringers. Although we won’t share the specifics of our repeat infringer policy (we don’t want anyone to game the system, after all), we believe that it strikes the right balance of protecting the rights of copyright owners as well as protecting legitimate users from wrongful termination. Please note that notices that are successfully countered, rejected on fair use grounds, or deemed to be fraudulent are not counted against a user or site.
Please follow these steps to file a notice:
Verify that the site in question is hosted by Divi Space Hosting. We have no control over sites hosted by WordPress.com. Please contact the appropriate web host with complaints.
- Contact the site owner directly. For example, contact the site owner via contact information provided on the site, or go to the blog post in question and leave a comment with your complaint to see if the matter can be resolved directly between you and the blogger.
- If the issue cannot be resolved directly with the site owner, send your complaint to our designated agent (we prefer email):
- Divi Space Hosting
- Email: email@example.com
- PO Box 2932
- Prescott, AZ, 86302
You must include the following:
- A physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
- An identification of the copyright claimed to have been infringed;
- The location of the copyrighted work (i.e., where the original material is located, not the material about which you are submitting a complaint);
- A description of the nature and exact location of the material that you claim to infringe your copyright, in sufficient detail to permit Divi Space Hosting to find and positively identify that material; for example we require a link to the specific webpage or blog post (not just the name of the site or blog) that contains the material and a description of which specific portion of the blog post or webpage – an image, a link, the text, etc. – your complaint refers to;
- Your name, address, telephone number and email address; and
- A statement by you: (a) that you believe in good faith that the use of the material that you claim to infringe your copyright is not authorized by law, or by the copyright owner or such owner’s agent; (b) that all of the information contained in your Infringement Notice is accurate, (c) under penalty of perjury, that you are either the copyright owner or a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed, and (d) you acknowledge that a copy of your infringement notice and any correspondence related to it, including any contact information that you provide (such as address, telephone number, and email address), will be forwarded to the party who made the material at issue available.
If an Infringement Notice is valid, we are required by law to respond to it by disabling access to the allegedly infringing material. If you are a Divi Space Hosting user and access to portions of your website have been disabled for this reason, we will notify you. You then have the option to send us a written counter notice stating why your material does not infringe copyrights and asking for access to be reinstated.
Countering a DMCA Notice
The DMCA enables copyright holders to enforce their rights by requesting the removal of unauthorized uses of their material. This means that as the host of your site, we’re required to disable access to material upon receipt of a valid DMCA notice.
Although you are prohibited by law to republish the material, that’s certainly not the end of the story! First, we encourage you to try to resolve the issue directly with the copyright holder. If the unauthorized use is the result of an honest mistake or misunderstanding, the complainant may send us a retraction of the takedown notice. This prevents your site from being associated with an instance of copyright infringement.
Alternatively, if you believe that you have rights to post the material (for example, if it’s fair use), or a mistake has been made (e.g. material in question being misidentified), you can submit a counter notice, as described below.
Considerations before submitting a counter notice
Before submitting a counter notice, you should consider the following:
- Similar to the initial takedown notice that we forwarded to you, we will pass your counter notice on to the copyright owner. If they disagree that their takedown notice was submitted in error, they may pursue legal action against you to protect their material.
- Counter notices must be submitted by the party who uploaded the material.
- Please note that under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability. Thus, if you are not sure that the material was removed or disabled as a result of mistake or misidentification, you should first consider seeking legal advice.
- After a period of ten business days, if the material owner does not object to your counter notice by taking legal action, we will restore access to the previously removed material on your site. You must not republish the material during this ten business day period.
Counter notices need to be sent to our designated agent noted below and must include the following:
- Your name, address, phone number and physical or electronic signature;
- A statement that you consent to the jurisdiction of the U.S. Federal District Court for the judicial district in which you are located (or if you are outside the U.S., for any judicial district in which Divi Space Hosting may be found), and that you will accept service of process from the person who originally provided us with the Infringement Notice (the “Copyright Holder”);
- Identification of the allegedly infringing material and its location before removal or disabling of access; and
- A statement under penalty of perjury that you believe in good faith that the material was removed by mistake or misidentification.
Counter notices must be sent to our designated agent (we prefer email):
- Divi Space Hosting, LLC.
- Email: firstname.lastname@example.org
- PO Box 959
- San Antonio, TX 78294
- Phone: 888.947.7943
Copyright and Fair Use
Divi Space Hosting hosts sites that use WordPress—a publishing, rather than a file sharing, platform—so copyrighted materials on sites hosted by Divi Space Hosting are often used in commentary, journalism, or the transformation of the material into something original of their own. As such, it’s important to consider if the manner in which the material is used falls under fair use, before submitting a DMCA notice. Under Section 512(f) of the DMCA, any person who knowingly materially misrepresents that material or activity is infringing is liable for:
…any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Please note that Divi Space Hosting may seek to collect those damages, and reserves the right to do so as recourse for notices we deem to be improper. This includes DMCA notices aimed at uses of copyrighted material that we believe to be fair. Additionally, you are required to give consideration to whether a use of material is fair before submitting a takedown notification, as a result of the decision in Lenz v. Universal.
What is fair use?
There aren’t hard and fast rules when it comes to defining fair use. However, the Copyright Act sets out four factors for courts to consider:
- The purpose and character of the use: Why and how is the material used? Using material for criticism, comment, news reporting, teaching, scholarship or research is usually fair. Additionally, using material in a transformative manner, that is to say, in a manner that adds new expression, meaning, or insight, is also more likely to be considered fair use over an exact reproduction of a work. What’s more, nonprofit use is favored over commercial use.
- The nature of the copyrighted work: Is the original factual or fiction, published or unpublished? Factual and published works are less protected, so its use is more likely to be considered fair.
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole: How much of the material is used? If the “heart” (the most memorable or significant portion) or the majority of a work wasn’t used, it’s more likely to be considered fair.
- The effect of the use upon the potential market for, or value of, the copyrighted work: Does the use target a different market/audience? If so, it’s more likely to be fair use. It’s important to note that although criticism or parody may reduce a market, it still may be fair because of its transformative nature. In other words, if the criticism of a product influences people to stop buying the product, that doesn’t count as having an “effect on the market for the work” under copyright law.
Here are some examples of situations where a site owner may be permitted to use copyrighted material without prior permission from the owner:
- Including screenshots of a website/profile/communication that demonstrate an issue that the site owner is criticizing or claims that the site owner is making
- Incorporating a brief quote from someone else’s blog for the purpose of commenting on their opinion
- Altering an image or photograph in a satirical manner
Here are some resources to learn more about fair use:
- gov – Fair Use
- EFF – The Bloggers’ FAQ on Intellectual Property
- Stanford University Libraries – Fair Use
- Nolo – The ‘Fair Use’ Rule: When Use of Copyrighted Material is Acceptable
If you’re uncertain as to whether a specific use qualifies as fair use, please consult a copyright attorney.