How to Resolve a DMCA Complaint: What You Must Know

Intro

DMCA notices can be one of the scariest things a site owner or operator can go through. They can come from out of nowhere, and depending on a variety of factors may not even be your fault. In this guide, we will go over some of the key details to know when receiving and dealing with a DMCA complaint.

What A DMCA Is and Isn’t

A DMCA notice is a simple legal tool used by copyright owners to request the cessation of infringement regardless of whether it is correct or not. Their claim puts the impetus on you to prove you didn't infringe or resolve the situation.

While it may not seem fair, consider the number of automated bots on the web stealing and re-uploading content. It would be impossible for smaller creators and businesses to report the thoughtless infringement that does occur in mass, even if you just happened to be lumped in with them.

A DMCA takedown notice is sent to ISPs who notify their infringing customers, but digital creators or authors can also send DMCA notices to website owners directly if they want to expedite the process of getting compliance. In addition to DMCA notices, content creators may also receive a letter of cease and desist, urging them to stop alleged infringements. Recognizing and understanding the nuances between these notices are crucial in guiding your next steps.

What You Need to Know About the Digital Millennium Copyright Act (DMCA)

The DMCA is a United States copyright law that provides protection for copyrighted material on the internet. The DMCA makes it illegal to post or share copyrighted material without the copyright owner's permission. It also allows copyright owners to request that infringing content be removed from the internet.

The DMCA means that using someone else's IP on blogs, sites, streaming channels, social media pages, or anywhere else in the digital world is a crime that is equivalent to theft.

A protected creative work means that the owner exclusively has the rights to distribute and copy the work.

Understanding DMCA Takedown Notices

To avoid liability, ISPs like Google must remove the work or portion of work that has been identified and contact the person who was allegedly infringing on the copyright.

What Goes Into A DMCA Notice

The contents of a DMCA notice can be simple. They should ideally identify the specific work that is being infringed upon and how it is copyrighted, the contact information for the agent or copyright holder, some form of statement that says the material used is not allowed to be, as well as a statement that the notice is in good faith and the details are correct.

What To Do After Receiving a DMCA Notice

After receiving a DMCA notice, you should:

• Contact the sender of the notice to try and resolve the issue.
• Stop using any copyrighted material on your website.
• Remove any copyrighted material from your website.
• Review your website to ensure that no copyrighted material remains.
• Take steps to ensure that copyrighted material does not appear on your website in the future.

What Is the Fair Use Doctrine?

This legal principle means that you can use copyrighted material in certain cases without the permission of the copyright owner. The doctrine is based on the idea that the public should be able to access and use copyrighted material for the purposes of commentary, criticism, news reporting, teaching, scholarship, or research.

The fair use doctrine is a defense to copyright infringement.

The doctrine allows for limited use of copyrighted material for certain purposes, such as commentary, criticism, news reporting, teaching, and research. The doctrine also applies to both copyrighted and un-copyrighted materials. The primary purpose of it is to protect free speech and creativity and foster collaborative or inspired developments or use for supporting research.

There are five factors that must be met for a use to be considered fair. The use must be necessary for the purpose of criticism, comment, news reporting, teaching, scholarship, or research. The use must also be made in a manner that does not significantly harm the marketability of the work. The user must have also taken reasonable steps to ensure that no copyright infringement occurred.

Ask for Professional Help

The complainant has two weeks to withdraw the notice or file a copyright lawsuit if they register the copyright with the US Copyright Office. But, sometimes situations can be very complicated and can lead to you needing to have some professional support.

You can face the following penalties if you end in court because of a DMCA notice:

• The cost of all legal fees for both parties
• Additional punitive fees and cost of damages
• In some cases, up to five years in prison.

Leaning on a professional when it comes to complex situations is the key to making more informed decisions for your site’s longevity.

How Do You Counter a False DMCA Complaint and Get Your Content Back on Google

If you receive a takedown notice by mistake, you should reach out to the copyright holder and ask them to rescind the notice. You can also file a counter notice with the copyright holder's designated agent. You need to clearly explain with documentation the reason why the notice is a mistake.

How Does an ISP Find a Copyright Infringement?

ISPs use a number of methods to find copyright infringements. They may use bots to crawl websites and look for unauthorized files, they may use reports from right holders, or they may use tracking technologies to follow the activity of specific IP addresses.

Many ISPs scan for videos and music using their algorithms on their sites and on other sites as well as duplicated content in the form of articles with high similarity to others. Paraphrasing is allowed, but like school, it's best to either credit your sources or stay as far away from using similar language as possible.

When they’ve been contacted directly, the search engine or service provider will review the material and determine if it is in violation of copyright law. If it is, the service provider may remove or disable access to the material. Repeat offenders may have their accounts terminated. If a takedown notification follows the correct rules, the DMCA means that the site operator has to remove the content. It's crucial to know that ISPs don’t judge the validity of takedown notifications, and they are just an intermediary between the party that is hosting the content and the party that is claiming infringement.

Filing a Counter Notification

Counter-notices can be filed directly through the DMCA agent working with your ISP if you try to get in contact with a claimant and can’t progress.

To find a designated DMCA agent in your area, go to the US Copyright Office website and enter your address in the "Find a Designated Agent" box.

You will then be directed to a list of DMCA agents near you. You can send a counter notification to a web host or ISP by writing.

Here’s what to include:

• Date
• Name
• Email
• Address
• Phone number
• Describe the material that was removed
• State that you believe the removal was a mistake
• Consent to the Federal District Court’s jurisdiction
• Your signature

Your consent to jurisdiction in Federal District Court for the judicial district in which your address is located and acceptance of service from a person who provided takedown notice or agent thereof.

Serving a DMCA Counter-Notice

Each ISP typically has their own agent that handles DMCA claims.

You will be able to get in touch with this agent so that you can issue your counter-notice.

Here’s what you’ll need to include with your counter-notice:

• Signature
• The infringing content and where to find it
• Good faith statement
• Your contact info
• Federal District Court consent statement

What Happens When You File a Counter Notification?

When you file a counter notification, you are telling the web hosting company and the person who filed the original DMCA takedown notice that you dispute the claims made against you and that you want the material to be reinstated on your website.

The web hosting company will then forward your counter notification to the person who filed the original DMCA takedown notice. If that person does not file a legal challenge against your counter notification within 10 business days, the web hosting company will reinstate the material on your website.

If you believe that you didn't infringe on a copyright, you can file a counter notification. If the party who sent the takedown notice still believes that you've infringed, they have 14 days to file a lawsuit against you. In the absence of a lawsuit, the strike is removed as if nothing ever happened.

At the end of the day they still own the image and you have to prove you were in the right if you want to counter, and these are some of the easiest ways to do so if you want to try.

What Happens When Content Is Stolen

If you knowingly steal content, you will likely end up getting penalized by Google. This means that your site will drop in the search engine rankings, and you may even be banned from the search engine results pages altogether.

You may be kicked out of your ad network and social media. Your reputation may be ruined. If you are caught stealing content, you may be blacklisted from the site. You may be charged for the damages caused by your theft via being sued for damages.

Since your response is a legal document, you will have to remember that any lies can be used against you in court.

Links:

1. https://www.copyright.gov/
2. https://www.copyright.gov/legislation/dmca.pdf
3. https://www.ala.org/advocacy/copyright/dmca