Last week we talked about a DMCA take down notice and what it means for you. This week, we are going to talk about responding to that notice.
As we discussed last week, the DMCA provides protections for internet service providers. The issue, as I mentioned last week, is that many copyright holders use this to their advantage and issue DMCA take-down notices as a business practice without any concern for the legitimacy of the claim. So, as with so many other aspects of protecting your business, it is important to know what rights you have and how to respond.
The DMCA Counter-Notice
The DMCA, in the same way it provides for a copyright holder to notify a service provider, provides a way for the alleged infringer to dispute the claim. This is called a DMCA counter-notice.
A DMCA counter-notice, to be most effective, should contain the following items:
- your physical or electronic signature;
- your name, address, and phone number;
- identification of the material and its location before it was removed;
- a statement under penalty of perjury that the material was removed by mistake or misidentification;
- your consent to the jurisdiction of a federal court in the district where you live (if you are in the U.S.), 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 U.S.); and
- your consent to accept service of process from the party who submitted the takedown notice.
Now, before you send a counter-notice, you need to consider the impact of a counter-notice. The first question to ask yourself is: are you, in fact, infringing? There are a couple of reasons to consider this. First, as I mentioned above, you are stating under penalty of perjury, that the material was removed by mistake. If you are aware you are infringing (or it is possible you did), you may be committing perjury by submitting a DMCA counterclaim. But, the second reason, is that you may trigger a lawsuit.
So, in addition to asking yourself if you are infringing, you should ask yourself how far you want to take the issue. Is it worth it?
After you consider these two questions, you should think about the reason to send a prompt counter-notice. As I mentioned before, many copyright owners submit DMCA take down notices that aren’t legitimate and they only use it as a scare tactic or as a way to have your material removed. If this is the case, sending a prompt counter-notice asserting your rights may serve to quiet the bogus claim.
Before you create a counter-notice, consider whether the DMCA claim is invalid because:
- The party who sent the notice does not own the copyright in question because someone else owns it.
- The party who sent the notice does not own the copyright in question because it is not covered by copyright
- Your use of the alleged copyright falls under fair use.
What you Need to do
The counter-notice is only part of the approach you should take in this situation. Remember, your service provider should have a process for DMCA notices. This policy will tell you where to send a notice and if you need to take any other steps to protect yourself.
It is important to remember that a DMCA claim is not the end of the world. It may be nothing. Even if it is something legitimate, it is the beginning of a process and you have time to avoid serious liability. Whatever you do, don’t ignore the notice. Make sure you take action. Or, if you don’t you do it understanding the potential consequences.