How to fight back legally against a DMCA

A DMCA notice is basically a copyright notice that either gets sent to you or your host. Personally I've only ever had one of these letters sent to me, and oddly it was sent directly to my registered address on file with the domain registrar via certified mail about pictures someone posted on a website of mine.

At first it can be over whelming, especially if its a large corporation who you know has a legal team that gets paid for it, or celebrities, athletes etc etc. But there are things you can do to fight back against DMCA notices legally.

If someone wants to stop your criticism of their material, they can file a DMCA claim that you are using their copyrighted material. The claim may be frivolous, untrue, malicious persecution, whatever, but they can still file a claim.

The first thing you should do is backup all the content that is in question and remove it from your site for a period of 10 days while you file a counter DMCA letter.

File a counter DMCA notice to your host, and the accuser. The original DMCA notice should include information on where you can reply to, and the information thats being contested. It's very important that you keep a record of this letter and get a copy of the original DMCA complaint from your hosting company. The hosting company has to provide you with the complain if they've received one, if they don't then you probably don't have a DMCA notification on your hands.

This counter notification letter lets the parties involved know that you plan to contest their claim of DMCA. The accuser now has 10 days to file a lawsuit against you in the court of law. If they file the lawsuit, then you need to seek professional legal counsel coursed with internet law and IP rights. If they do not file a lawsuit within 10 days, you can consider the case resolved amicably and restore the content.

However, you should be aware, that when you send the counter notification letter, you are stating that you will accept the legal recourse's that they have (The lawsuit). If you were actually infringing the original "Cease and Desist" people, they could legitimately file a lawsuit against you without using the DMCA - thus this requirement on the "Counter Notification Letter" does not open you up to anything that you weren't already liable for. Another plus of this is that if they decide to follow thru with the lawsuit, they must file it in your district court. This usually involves travel and expenses, that could also be tacked on to the damages (Legal fee's), also a small negative.


Useful links:
Fair use and copyright law: U.S. Copyright Office - Copyright Law: Chapter 1
DYI Counter letter: Do-It-Yourself Counter Notification Letter
DMCA on Wikipedia: Digital Millennium Copyright Act - Wikipedia, the free encyclopedia
DurangoBill's DMCA advice page: Fight DMCA (Digital Millennium Copyright Act) Abuse
Privacy Digest: Privacy Digest | News that can impact your privacy.

Note: I'm not a internet lawyer, I do not know the full extent of every law or try to come off as I do. This post merely serves as a starting point for what could be a long drawn out legal battle between two parties and is for informational purposes only. The best advice in this post is: If you need legal counsel, then seek it. Don't get it from the internet or this post. Hire professionals who do it for a living, and for the love of god, don't defend yourself in court.

This post has been promoted to an article

 

I've had to cite Fair Use once with a person threatening me with a DMCA and it does work usually and gets people to back off. It's actually harder to get a DMCA to hold in court that people would think, but it can happen. Its best to just use good practice with not quoting a full article (which even then still leaves Fair Use open at times) but to quote some of the article and use it to comment/criticise.

This is good info for anyone to take a look at when they need to.

 

Moved to the Articles database.

 

How about an article on the contrary: How to file a DMCA complaint ?

On at least one occasion, content from one of my forums has been stolen (it was actually an original image), and luckily the infringer was cooperative. I'd liked to have known what the proper steps would be.

 

http://www.adminaddict.net/forum/se...how-file-dmca-find-their-host-4652/#post55469

 

GOOD info David.

 

thanks for the info