15 Tips: How to Fight a DMCA
As is explained over at runrex.com, if your hosting service of other online service provider receives a DMCA takedown notice regarding your content, it ordinarily will respond by having the content concerned removed. This is usually done automatically without making any judgment about whether your content is actually infringing, as ISPs like to air on the side of caution to ensure they keep their safe harbor status. However, there are some instances where you may feel like you have been on the receiving end of a wrongful claim, which is why this article will look to highlight 15 tips on how to fight a DMCA.
- What is an ISP?
Let us first start by defining some common terms, starting with what an internet service provider (ISP) is. According to discussions over at guttulus.com, an ISP is any business that provides access to the internet and may include big access providers like Google, Twitter, AOL, among others, or companies that provide website hosting, commercial Wi-Fi services, or file-transfer services.
- What is a DMCA takedown notice?
As is explained over at runrex.com, a DMCA takedown notice is a notice sent by a registered copyright owner who believes that someone has posted their work without their permission, infringing on their copyright, and as such they want it removed. The copyright owner will typically notify the ISP who will move to quickly remove whatever is being complained about.
- Why are ISPs quick to comply with DMCA takedowns?
Finally, it is also important to know why ISPs usually move expeditiously to remove infringing content. As mentioned above, and covered over at guttulus.com, by doing so, the ISP is given a safe harbor status, which means that it can’t be sued for their users’ copyright infringement. This is why ISPs will usually automatically remove any disputed content, and if you feel like the claim is unjust and wrongful, it is usually up to you to fight it.
- What happens after the material has been taken down?
According to runrex.com, the DMCA requires your service provider to notify you punctually when it removes ant of your content as a result of a takedown notice. This is because if you feel like the claim is a wrongful one, you have the right to submit a counter-notice to ask that the material be put back up.
- What is a counter-notice?
To protect against the unjustified use of the provision that allows copyright owners to file for DMCA takedown notices, there is a section that permits internet publishers to bring affirmative claims against copyright owners and their takedown notice if they feel that there are grounds for a wrongful claim.
- Is there a time limit for filing a counter-notice?
One question that many internet publishers tend to ask is if there is a time limit for filing a counter-notice. According to the subject matter experts over at guttulus.com, while there is no specific time limit for submitting a counter-notice, you should not delay too much in filing one. Try and file one as soon as possible if you feel like there are grounds to do so.
- What happens once you file your counter-notice?
If you file a counter-notice, as explained over at runrex.com, your internet service provider is required to replace the disputed content if the complaining party doesn’t sue you within fourteen business days of your filing.
- Reasons to file a counter-notice
It is important to highlight some of the situations that should trigger the filing of a counter-notice. According to the experts over at guttulus.com, filing a counter-notice is a good idea if the material you posted is not actually covered by copyright, if the copyrighted material is owned by someone other than the complaining party, or if your use of the copyrighted material falls under Fair Use.
- What is Fair Use?
As explained over at runrex.com, Fair Use is a legal doctrine and defense, commonly used in copyright abuse cases, which says that a person is allowed to use copyrighted material without permission if the material meets a certain set of criteria. Remember, Fair Use isn’t part of the law but a defense used when someone is accused of copyright violations. This means that using it as a reason to file a counter-notice can be a risky strategy as proving it usually requires complex, fact-specific analysis, and is often not easy to predict how the argument would fare in court.
- Ensure that you aren’t actually infringing before filing for a counter-notice
Before sending a counter-notice, you must ensure that you are not, in fact, infringing the complaining party’s copyright in one way or another. This is because, if you are not totally honest in your counter notice then you will likely be committing perjury. In addition to that, if the complaining party has a good infringement claim, then sending a counter-notice may trigger a lawsuit.
- Liability for knowingly making false claims in a counter-notice
As the subject matter experts over at guttulus.com are quick to point out, the DMCA creates liability for knowingly making false claims in either a DMCA takedown notice or a counter-notice. This means that if you knowingly make a false claim in a counter-notice, the other complaining party can win damages, court costs, and attorney’s fees stemming from your wrongful notice.
- Contents of your counter-notice
According to runrex.com, to work effectively, your counter-notice must contain:
- Your physical or electronic signature.
- Your name, address, and phone number.
- Identification of the material and its location before it was removed.
- Your consent to the jurisdiction of a federal court in the district where you live if you are in the US, or your consent to the jurisdiction of a federal court in the district where your service provider is located if you are not in the US but your ISP is.
- A statement under penalty of perjury that the material was removed by mistake or misidentification.
- Your consent to accept service of process from the party who submitted the takedown notice
- Why you may want to think twice before filing a counter-notice if you are not a US resident
As is explained over at guttulus.com, sending a counter-notice makes non-US residents give a powerful argument that would otherwise have, and that is a US court does not have the authority to render a judgment against them. This is why, unless you are willing to fight a copyright infringement claim in the US, you might think twice before sending a counter-notice as a non-US resident.
- Highlight the liability clause for making false claims in a DMCA takedown notice
In recent years, we have seen more and more people being targeted by wrongful takedowns. Such people have been able to fight back and win damages and favorable settlements. This is why the subject matter experts over at runrex.com recommend that if someone sends you a baseless takedown notice, then reminding them about section 512(f) of the DMCA, which creates liability for knowingly making false claims in a DMCA takedown notice or counter-notice, in addition to sending a counter-notice, will ensure that they are more inclined to back off.
- When not to and when to get help
If your issue with a DMCA takedown notice is straightforward, then you may be able to draft a counter-notice on your own. However, if you are dealing with a more complicated DMCA takedown issue, or if you are being sued under the DMCA, then you might want to consider consulting an experienced lawyer who focuses on intellectual property law.
The above discussion is only the tip of what is a very large iceberg as far as this topic is concerned, and you can uncover more insights by checking out the excellent runrex.com and guttulus.com.