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DMCA Take-down Notices - Fightback!

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Offline andrewwilson

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DMCA Take-down Notices - Fightback!
« on: March 04, 2013, 06:49:36 AM »
I run quite a few sites that accept user generated content - articles, images, videos etc. Some are part of a blog network used to grow back-links to one's own sites.

All the following is written in the clear knowledge that it is not legal advice and is not written by a lawyer, just a bloke who did some reading and is going through the process described. ;)

Over the past few months I have received quite a few notices asking me to remove content or links due to some imagined problem with Google. Of course, as we all should know, there is no way that anyone can ascertain whether a particular link is a 'bad' link and I know that I run good quality sites and so I ALWAYS refuse such requests, usually without a reply.

Sometimes I get threats in various forms, I have even received threats that I will be hit with a DMCA Take-down notice for copyright infringement if I do not comply. Of course such a threat would not be valid, especially given the initial contact and its purpose. ;)

Well, a few days ago I received a DMCA Take-down for the first time. I received a notice and had 48 hours to respond. A deadline I was not able to hit and so my site went dark.
I did some research and found that it is very rare for people to contest a DMCA notice, the trouble is not seen as being worthwhile. But I learned something else. It is also very rare for a contested DMCA notice to be responded to.
There's a good reason for this.

When a DMCA is opened the complainant is making a claim under penalty of perjury that they are justified in making the claim but there is no money cost and pretty much no comeback if the claim is false.
When a counter claim is made there is also a claim under penalty of perjury from the defendant. Here the defendant is taking a risk because if he goes to court he is liable for the truth of his claim.

However, after the counterclaim is filed the complainant has 10 days in which to file suit at a court in the state of the hosting company and THIS costs money. It is at this point that most counterclaims go unanswered and the dark site goes live and the disputed content is returned to public view once again.

DMCA might be a scary thing for many of us and it may be that we take the view that we should simply roll over and save time and money. Well, I disagree. I spent several hours doing research, I liaised with my hosting company (Hostgator) who gave good input and guidance (but not legal advice!) and who were happy to re-enable my site as long as I removed, at least temporarily, the content under dispute.
On my second attempt I produced a DMCA counter-claim that was acceptable to HG's legal department, that had all the relevant info and was electronically signed in the correct manner. I am now almost a week into the 10 day waiting period and, touch wood, not a peep from the complainants.

That the complainants are a Canadian based internet marketing biz who were mistaken in their original claim may have some relevance here because they have to pay for legal representation in Texas for a claim in which they can be shown to have been economical avec le verite.
The thing is that if we give in to dishonest threats then we all lose. If they come back with a court filing I will simply ensure that the content stays down and will tell the court and complainant the same.

I doubt anything will happen and on the upside I now have a template for counter claims that will enable me to reply in a matter of minutes to a spurious or dishonest claim.

One thing I must make clear though - do NOT get angry with the host if they take down content or the site, they have a legal obligation to do so and they can be helpful in getting things sorted out.

Useful links:
DMCA Info: http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-targeting-your-content
Counter Notice generator: http://www.chillingeffects.org/dmca/counter512.pdf
Digital signing service (free service available): http://www.docusign.com/demo

NB. I did not use the Chilling Effects generator, I wrote my own document due to the particular situation of the original claim.




Re: DMCA Take-down Notices - Fightback!
« Reply #1 on: March 04, 2013, 08:38:13 AM »
Thanks for the links. I'm sure a lot of people will find them useful.

Good luck with the DMCA Andrew.

Back in 2000 at Wipo I took on La Société Des Bains de Mer et Du Cercle Des Etrangers à Monaco
over a trademark infringement on a couple of websites I'd registered. I lost and had to give up the websites.

La Société Des Bains de Mer et Du Cercle Des Etrangers à Monaco were founded in 1863
and had a firm of Paris Lawyers so I never really stood a chance but it was fun.

C'est La Vie
Eliot

Offline Meg

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Re: DMCA Take-down Notices - Fightback!
« Reply #2 on: March 04, 2013, 08:53:20 AM »

Offline andrewwilson

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Re: DMCA Take-down Notices - Fightback!
« Reply #3 on: March 11, 2013, 07:13:32 AM »
Today I heard from Hostgator's legal department. There has been no response to my DMCA counter notification the wrongly identified content will now be restored.

I now have a template for replying to DMCA claims in just a few moments so I will not be giving in to false claims in future.

Re: DMCA Take-down Notices - Fightback!
« Reply #4 on: March 11, 2013, 08:16:41 AM »
Good result Andrew

I sorta had a feeling that you'ld win
Eliot

Offline andrewwilson

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Re: DMCA Take-down Notices - Fightback!
« Reply #5 on: March 11, 2013, 08:27:11 AM »
Good result Andrew

I sorta had a feeling that you'ld win
Eliot

So did I. ;)
When I did a little research I found that when a DMCA counter notice is issued it is quite rare that the complainant actually is willing to pay money to continue the fight. In this case the complaiannat was making a fraudulent claim and was not Canadian based so it was a no-brainer that they'd belly up.

That said, one reason I posted this was to show that fighting back is not complex or expensive and that we should not jsut roll over. Of course if one is stealing stuff then complying with a DMCA takedown notice is the best and least costly action to take.

I was also encouraged to contest this becasue I found out that hosts tend to take account of takedowns in their client assessments. A takedown is a black mark, a counter notification is a gold star. Now my host knows that I will stand my ground and that on the only occasion that a notice was issued it proved to be groundless - never a bad ting to have if there is ever any doubt as to what they should do.

Offline Duffy

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Re: DMCA Take-down Notices - Fightback!
« Reply #6 on: March 11, 2013, 12:53:27 PM »
filing a fraudulent DMCA claim is perjury, hence a felony alone needs to do is file a complaint with authorities and they generally back off PDQ.
« Last Edit: March 11, 2013, 01:00:48 PM by Duffy »

Offline andrewwilson

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Re: DMCA Take-down Notices - Fightback!
« Reply #7 on: March 11, 2013, 03:59:49 PM »
filing a fraudulent DMCA claim is perjury, hence a felony alone needs to do is file a complaint with authorities and they generally back off PDQ.

That is correct but of course hosting companies have a legal duty to remove content or lose their safe harbor protection and most people receiving a DMCA do not challenge it even if they feel the matter is not justified.

In the current circumstances of people wanting to remove links from websites because they are concerned about having made them I expect to see more, many more such claims and so I wanted to find a template for dealing with them and that I now have.

In my case they did back off, but then I did not think that they'd proceed given that they were in Canada but I'd have done the same thing even if they were based in Texas the home state of my hosting firm.

Offline fastaction

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Re: DMCA Take-down Notices - Fightback!
« Reply #8 on: March 19, 2013, 04:12:48 AM »
Very interesting post. I am one that would probably roll over for the sake of peace, but have today learned something very valuable from you.

Many thanks for sharing this. It is most helpful. Hopefully, I won't be faced with the same situation, but at least I know how to handle it now.

Cheers !
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Offline andrewwilson

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Re: DMCA Take-down Notices - Fightback!
« Reply #9 on: March 21, 2013, 09:48:14 AM »
I am glad you found the posts of use. There's an awful lot of fraudulent take-down notices and it is not reasonable to expect one's host to do anything other than take down 'offending' material but truly, it isn't to hard to do oneself as long as one is certain that one is in the right and is prepared to have one's bluff called.

Offline andrewwilson

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Re: DMCA Take-down Notices - Fightback!
« Reply #10 on: July 31, 2013, 08:29:14 AM »
I had another fun DMCA today. This time it is blatant fraud. The guy who posted content to my site did so with a verified email account from his own company. Links were to his own company and he even posted us a picture (complete with embedded info from his camera). Now, today we get a DMCA threat from some firm charged with cleaning up the firm's link profile.

I wonder if the 'SEO' firm really wants to bite the bullet on the lawyers fees pursuing this one. ;)

Daft thing, all the poster of the articles had to do was log into his account and delete them. If he lost his login info the system can reset his logins and the email account is not a throwaway so no problem with 'forgetting the email. I wonder how many firms and sites these folks have impacted. The poster boasts on his company website about his prowess at low cost online marketing and about his 1900 YouTube videos.

Let us see what happens. ;)