DMCA Abuse: How to Nuke False Copyright Infringement Claims
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.
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.
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 consultation 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. Anonymous flames destroy credibility and are arguably just as unethical as filing false DMCA infringement notices.
Wolverine: Pirates Steal X-Men Origins Movie Online Before Its Public Release
Hugh Jackman’s X-Men Origins: Wolverine has leaked out onto the Web. Downloads via P2P are estimated to already be in the hundreds of thousands. The Hollywood blockbuster release model is becoming increasingly irrelevant because technology has moved beyond it.
The FBI is investigating the unauthorized distribution of the film and the studio claims that it is forensically marked so that it will be easier to identify who leaked it. That being said, what’s occurring now is damage control.
The PR spin is that the lack of certain CGI and sound effects will make the pirated version less attractive to the general public. The studio will insist that those who have watched the leaked movie will want to pay to see the final version in theaters. That’s wishful thinking. There will be lost ticket sales.
Is there a solution? As long as there is a market demand for pirated movies, books, songs, etc., blockbuster new content (like Harry Potter Book 7) will always be prone to leaking no matter the criminal and civil penalties faced by those who leak or download. The MPAA can lobby for stricter copyright infringement penalties but it will be of little consequence.
I predict that blockbuster “star” movies will decline in number because of the return on investment is too unpredictable with piracy plus there are more choices for online and offline entertainment. To hedge their bets, studios will produce smaller budget films with no-name actors (or strictly animation as CGI costs decrease). Promotional tie-ins through product placement will partially cover production costs…and to the extent star actors are involved, they’ll be asked to shoulder more of the risk of piracy through taking a greater portion of their compensation based on the box office rather than a nice up front flat fee.
