THIS TUTORIAL IS INTENDED AS AN EXPLANATION OF THE CONCEPTS SURROUNDING “COPYRIGHT”.
THE INFORMATION PROVIDED BELOW DOES NOT CONSTITUTE LEGAL ADVICE.
IF YOU ARE CONCERNED ABOUT ISSUES OF COPYRIGHT THAT MAY RELATE TO YOURSELF, THEN YOU SHOULD SEEK THE ADVICE OF A QUALIFIED LEGAL REPRESENTATIVE.
The Final Frontier…
Captain’s log, Stardate 9534.5… I think we have been in the Alpha Quadrant for too long now, that Vulcan is beginning to look rather cute in those tight black pants…
Oh, hello there, you’ve come back for more of this copyright stuff?
Oh well, so much for my Captain Kirk reverie…
Ok, let’s see now…
… where was I?
bread, cheese, milk, coffee, laundry powder and toilet paper…
ooops, sorry. – wrong list… oh yeah – Copyright and stuff
So, in Part-1 we covered what Copyright actually is. In Part-2 we covered the background to the DMCA, in Part-3 we covered how the DMCA Takedown Notice works, and in this fourth installment [coincidentally known as “Part-4”] we will cover how to file a DMCA Counter Claim.
I bet you are all just bouncing in your chairs with excitement!
I know – fun isn’t it!?
Yes, you DO have the right to reply…
It was recognised while creating the DMCA2/OCILLA that the legislation could be used maliciously by those with less than the purest of intent. It could also be used erroneously, and that there needed to be a fail-safe built into the legislation.
With that in mind a special provision has been written into the DMCA2 to enable people to respond to a DMCA Takedown Notice, by filing a “Counter Claim” or “Put Back Notice” [because it can get your work “put back” online!]
Plagiarism Today has this to say in regards to DMCA Counter Claims
A counter-notice works in the reverse. The subject of the DMCA notice makes similar statements claiming that the work is not an infringement, either that they hold the rights to it or their use of it is legal (fair use, licensed, etc.) and that the original notice was filed in error.
What this means is that if you receive a DMCA Takedown Notice, then you can file a claim that your work does not infringe copyright – however you also need to be able to say why you think it does not breach copyright.
The following reasons are all valid claims for not breaching copyright:
- You actually own the copyright.
- You are licensed to use that image.
- Your use of the image falls under the exemptions of Fair Use
- News reporting,
- Library archiving and scholarship.
- and in the USA … Parody.
The Devil is in the details …
The actual Counter Claim Notice is kinda similar to the DMCA Takedown Notice. There are FIVE specific details that you must address, and like the Takedown Notice – if you fail to complete the form correctly, then your claim will probably be dismissed out of hand.
1. A physical or electronic signature of the subscriber.
2. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
3. A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
4. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located.
5. Or, if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification or an agent of such person.
Step by step …
So what happens when you file your counter claim….
Well, first of all, you need to send your claim to the Host/Site Provider that removed your image, and then they will forward it onto the Claimant who sent the Takedown Notice.
The original claimant then has between 10 and 14 days to file a court injunction preventing the re-instatement of your work.
The original claimant can not simply file another DMCA Takedown Notice [allthough this does sometimes happen], if they want to enforce their rights they must at this point initiate legal proceedings.
If you have not received a response from the original claimant within 14 days, then your work must be reinstated by the Host/Site Provider that removed your work.
Its all so simple really.
It is worth noting that if you don’t hear back from the original claimant, that does NOT mean that your work does not infringe their copyright, it may simply mean that the original claimant does not have the resources to pursue the matter legally.
So in the end, what does this all mean?
Let’s break down all this information from these Tutorials and see what we’ve got:
- If it’s not your original idea, then don’t use it without first getting permission
- If you find someone using one of your images, then file a DMCA Takedown Notice with the Host/Site Provider where that image is displayed.
- If your work has been removed from your site due to DMCA then you can file a Counter Claim.
Should I file a Counter-Claim?
Well that is up to you. Do you have a good-faith belief that the Takedown Notice was filed in error? If so – then I think you should counter-claim.
Also, today there is a new breed of business – the Copyright Agent. It is much cheaper for larger corporations to pay “copyright agents” to chase-down breaches of their intellectual property than for them to do it themselves.
What happens is the “agent” gets paid a flat fee for every DMCA Takedown Notice they lodge on behalf of their client. I understand it is about $20 per DMCA.
For this small amount of money, the agent is not actually checking if copyright has in fact been breached, their job is just to lodge the claims and collect their fee.
The end result is that an awful lot of DMCA Takedown Notices may in fact have zero validity… so it is worth responding if you feel your work has been unjustly removed.
At the end of the day [which just happens to be in about 90minutes from now..] the best way to avoid all these problems is to create your own work that is not based on anyone else’s original ideas.
Further Reading … if you are still having trouble sleeping, or you have no social life…