Web Lawyer: DMCA Abuse – How to Nuke False Copyright Infringement Claims

web lawyer dmca copyright infringementMy take as a Web lawyer is that the Digital Millennium Copyright Act (DMCA) (PDF summary) is abused to suppress free speech and prevent competition in the Internet marketplace. If someone has filed a false DMCA complaint against you for content on your website, consult your Internet attorney immediately to determine what your course of action should be.

(Please note – I am not accepting any clients in DMCA complaint matters at this time).

According to Google, more than half of the DMCA complaints it receives involve businesses targeting competition. Here’s the key stat: 37% of the claims were bogus. In other words, just because someone claims you’re violating the DMCA doesn’t necessarily mean that you actually are. So there’s no need to panic if you receive a DMCA complaint.

In general, here are some of the steps that some Internet marketers take when confronted by bogus DMCA complaints. Consult with your web lawyer to discuss specifics before doing something though.

1. Back up the alleged infringing content and temporarily take it down from the site until the dispute is resolved.

2. If there’s a chance that your website host will take down your site, start looking immediately for alternative hosting that is “free speech” friendly.

3. File a counter-notification under the DMCA if it is clear that the infringement claim is bogus.

4. If it turns out that the other party is infringing, file a DMCA complaint against him.

5. Demand a public retraction (such as a video apology or letter that you can post online).

6. In Legal Strategy Session with your attorney, consider suing for the false claims made. Under the DMCA, you may be entitled to damages, attorney fees, and costs for dealing with a bogus DMCA complaint. Note that you may have other claims too. For example, if your hosting company decides not to continue hosting your website because of one or more bogus DMCA claims, you may be able to seek damages for tortious interference with business relationships. In addition, some obtain injunctions to prevent future harassment.

17 U.S.C. § 512(f) Misrepresentations. – Any person who knowingly materially misrepresents under this section —

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Some post their experiences of dealing with bogus DMCA claimants at consumer protection and free speech websites. The key here is to tell the truth and back it up with documentation. Your Web lawyer can tell you whether what you plan to say crosses the line or not. Of course, anonymous flames destroy credibility and are arguably just as unethical as filing false DMCA infringement notices.

To your success!

-Mike the Web lawyer

  

18 Responses to “Web Lawyer: DMCA Abuse – How to Nuke False Copyright Infringement Claims”

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  1. Jeff says:

    What’s the latest Salty Droid’s site? I’m referring to his latest .info domain. There’s a message that Bluehost has suspended it. He’s been booted off Twitter and now his own domain.

    • Mike Young says:

      Jeff,

      Why don’t you ask SaltyDroid directly?

      According to Google’s cache for the site’s contact form, his e-mail address is saltydroid *[at]*gmail.com. Of course, feel free to let us know what you find out.

      Best wishes,

      -Mike

  2. kelton Brastion says:

    Good advice above. And what, in relation to those whom file false counter notifications. Federal?

  3. Phantasm says:

    I enjoyed your article. I was wondering if you could point me in the direction to find out what the consequences are for people who constantly post that a website is copyright when it is not.

    I know some people that like to design websites for different reasons mostly personal, family and friends sort of thing. Although recently I am seeing my friends branching and posting in the footer section that the site is copyright 2009

    When I ask them if they really took the time to do that they respond with no but other people do not know that. Isn’t that like showing a police badge and saying ‘Are you really a cop” and them saying “No, but other people do not know that”

    So if it is found out that someone is saying they are copy righted when they are not what happens? Or where can I go to research this question?

    Thanks for the help and response

    • Mike Young says:

      Phantasm,

      There is a difference between copyright ownership and copyright registration. Copyright notices put on sites (registered or not) reduce/eliminate an infringer’s defense that piracy occurred innocently.

      To learn more, go to copyright.gov.

      Best wishes,

      -Mike

  4. Publius says:

    I almost can’t even believe it, but some joker was able to take wwf.Fornits.com offline again by filing some DMCA complaints. Fornits is a forum site focusing on child abuse within the troubled teen industry. It’s been online (most of the time) for around 10 years. Sue Scheff almost killed it a couple of years ago using a different instrument, demand letters alleging defamation and such like and threatening legal action against the hosting providers (one after another after another).

    How does one go about preventing a veritable bit torrent of bogus DMCAs from making it impossible for a shoestring outfit like Fornits to stay in operation?

  5. Tony says:

    Hi Mike,

    Nice coverage of an important topic.

    Recently we were contacted by [redacted]

    • Internet Lawyer says:

      Tony,
      Thanks for stopping by. Unfortunately, you’re asking for legal advice in a public forum. I’ve redacted the details. Please discuss them with your lawyer.
      Best wishes,
      -Mike

  6. Tony says:

    No problem, Mike. I’d already planned to meet with my attorney prior to posting and was just interested in your take on the matter.

    Thanks and have a pleasant day.

  7. keith says:

    Someone who is somewhat famous on youtube has filed a copyright infringement notice on a video of mine that is clearly fair use, I have filed a counter claim, he has informed me if I do file a counter claim, he will contact his lawyer. He then was schooled in private messages and from a video made by a partner on youtube. After being schooled he files a 2nd DMCA claim on my video that was mirrored on anther channel.

    I would like to take legal action against this guy but don’t know how to go about doing so.

    • Internet Lawyer says:

      You next step should be to set up an initial consultation with an Internet lawyer who focuses on litigation instead of transactional work. Note that I practice Internet transactional law so this isn’t some lame attempt to get you as a client.
      A good starting point for finding what you’re looking for is the Internet Attorneys Association member directory.

  8. Riya says:

    Greetings,
    I really appreciate the informative article posted by you above. I work with virtual gaming website and been working past 3 years. Recently someone whose identity is not disclosed by the website has been False filing DMCA due to which my work would be taken off the website and returned withon 2 weeks due my counter filing. Now this has happened 3 times already. What should be done? That person is jealous of my creativity and wants me to get discouraged and stop posting my work. My works were copyrighted (the symbol c) by me and I dont understand how the website is allowing my copyrighted work to be dmca’ed.

    • Internet Lawyer says:

      Thanks for your comment. Can’t provide legal advice here on a blog. Please set up a consultation with an Internet lawyer to discuss your particular situation.

  9. Kitty Carnes says:

    Hello,
    I have (had, its been taken down) a facebook fan page with almost 3000 fans which is a large part of our customer base communitcation. A corporation claimed copyright infringement on us and got our fan page shut down. I repeatedly contacted FB and they will not budge on this. From my research there is no copyright infringement they are claiming the copyright to the words “Dirty Girl” and we are Dirty Girl Soaps LLC. On the federal copyright sight I did some research and see that they have tried to do the same thing to other companies for their copyrights. The annoying company lost due to “common word” use. There are several companies with copyright names with the words Dirty Girl in them in the same category.
    How do I get my fan page back? Their actions have severely hampered out networking abilities and hurt our company.

    • Internet Lawyer says:

      Consult with your Internet lawyer about how to proceed. A blog really isn’t a place to solicit or give legal advice.

      Best wishes,

      -Mike

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