Receiving a DMCA complaint can be a bit of a shock the first time it happens. Most people have no idea what to do when one comes in. The answer depends on your specific situation, but you should at least contemplate filing a DMCA counter notice to fight the claim. Let’s look at why this is the case.
Historically, copyright disputes have been handled through civil lawsuits. The copyright holder would sue the party alleged to have infringed on the copyright. The defendant, in turn, would assert various defenses. Discovery [depositions, etc.] would be undertaken and the case would go to trial if it didn’t settle. The process usually produced a just result, but it took time and a good bit of money.
Then the internet changed everything.
Suddenly, there were websites in which people all over the world could communicate. Just launching a site became incredibly easy with programs such as WordPress. While commentators made jokes about the web being all about porn, the truth is communities were forming online. Information was exchanged in these communities. Unfortunately, the sharing of imagines, videos, songs and such constituted copyright infringement although most people posting did not realize as much.
This created a conflict in the law. As a general notion, the laws of the United States are set up to promote the exchange of ideas. At the same time, a person who has spent three years writing a book should receive compensation from the distribution of their book. The Digital Millennium Copyright Act of 1998 was designed to address this conflict.
At its core, the “DMCA” creates a framework for addressing copyright issues online without the parties being required to run off to court each time. This saves the parties massive amounts of money and keeps the courts from being cluttered with copyright infringement cases. For the process to work, however, a tradeoff takes place. Websites are given immunity from being sued for monetary damages by copyright holders, but only if the sites follow a specific procedure in which they essentially “help” the copyright holder protect their work.
This procedure is known as the DMCA claim/counter notice process. The first step is for a copyright holder to issue a copyright takedown notice to the DMCA agent service used by the website in question. The website then automatically and immediately removes the content in question. It then also must notify the person who posted the content that a claim has been made. This person then has the right to file a “counter notice” in which they essentially contest the infringement claim. The site then forwards this notice back to the original complainer who can either drop the matter or pursue a lawsuit against the alleged infringer.
An example can clarify how this process works in the real world. Let’s assume I see a carton image I think is funny. I copy it and post it to my Facebook account. The cartoon creator learns I have done this and considers it copyright infringement. He files a DMCA claim with Facebook. Facebook immediately removes my post of the cartoon and alerts me to the claim. I then decide to file a counter notice indicating the use of the image constitutes fair use, which Facebook forwards to the cartoon creator. He then decides to either drop the matter or pursue a lawsuit against me.
The Rare and Mysterious Counter Notice
I’ll be blunt. You rarely see counter notices filed in DMCA disputes. Why? I have no idea. You know all those people bleating like sheep about the DMCA being abused? All they have to do is file a counter notice to call the bluff of the party filing the claim. Why don’t more people do this? Many don’t understand they have the option while others just aren’t interested in risking ending up in a lawsuit. I understand such concerns, but it is a bit tiring to hear people complain they have no options for fighting DMCA abuses.
The Repeat Infringer
In certain situations, you may be compelled to file a counter notice to an infringement claim made against you. The reason is the repeat infringer policy. The DMCA includes language indicating a site can’t ignore one party who continually infringes on the copyrights of others. Instead, the site must establish a repeat infringer policy. If someone violates the policy, the site must terminate their involvement on the site. Two examples can show how this might work and why fighting such claims could be critical.
Let’s assume I work long and hard to establish a following on Twitter. In fact, I build a list of 75,000 followers and use it as the primary revenue source for my business. Twitter maintains a repeat infringer policy of terminating any user who receives three successful DMCA complaints in any three year period. I start receiving the odd DMCA complaint every so often, but they are obviously not legitimate and appear to have simply been kicked out by some automated program. I decide dealing with them isn’t worth my time and just let the content be removed.
Making such a decision is a huge mistake. Why? Twitter’s repeat infringer policy is going to snag me. I will quickly cross the repeat infringer threshold of three successful complaints in three years. Twitter will then have no choice but to immediately cancel my account. Goodbye 75,000 followers. Goodbye most of my revenues. Goodbye all that hard work. Is there a high ledge I can jump off?
How about a second, very common scenario where DMCA complaints can devastate online businesses? Most people don’t realize the DMCA applies to hosting companies as well.
Let’s assume I have my blog hosted on Blue Host. Someone complains my content is infringing on their copyright. Blue Host doesn’t want to be sued, so they respond by taking down my site. In this scenario, I obviously need to immediately file a counter notice unless I actually did swipe someone’s content. Failing to do so means my site will remain down. Losing your site certainly qualifies as a disaster in my book.
Ignore DMCA complaints at your peril. The consequences can be harsh. Make sure to speak with an attorney familiar with the DMCA to get an analysis of your situation and the options available to you. Feel free to contact me today.
Richard A. Chapo, Esq.
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