Defending a DMCA Notice (Or, make sure this doesn’t apply to you)

This is the third and last post in a series about how to handle stolen content on the web. Read Part 1: How to Get Your Stolen Content Removed; Part 2: Proving that Stolen Content is Yours.

I’ll admit that I’m an optimist and try to think the best of everyone, but let’s face it, sometimes people are willing to bend the rules so far that they break, and then they try to use duct tape and slight-of-hand to pretend they only made a little kink. Picture this: someone steals your content, pulls some tricks to make it look like they created it, and then serve you with a DMCA notice. Or, less far-fetched: you post something that you believe you have every right to repost and suddenly find yourself served with a DMCA notice.

You have recourse. You can send a counter notification that notes why you have the legal right to post the content in question.

The reasons for sending a counter notification are:

The copyright on the material has expired (i.e. it is in the public domain), therefore anyone can reproduce it.
The original material had no evidence that it was copyrighted and you have good faith belief that it is not.

This is perhaps the weakest of the excuses for recent material, because in general, your work is copyrighted as soon as it is created in a form that is copyrightable, so long as you can prove ownership.
The person who sent the original notice is not the copyright holder or their authorized agent and therefore can’t claim copyright violation.

If you are the copyright holder, this is where your proof comes in handy.
Your use of the content falls under ”fair use”.
The original complaint did not include all of the information required for a DMCA notice.

If you think any of those apply, you can send a counter notification that essentially tells your host that they cannot remove the content until the original complainant sues you.

If you are the original complainant, make sure that the offender can not easily claim any of the above. Of course, so long as you are the original creator, have a copyright notice on your site and dotted your ‘i’s and crossed your ‘t’s on the DMCA notice, the offender shouldn’t have a leg to stand on.

For a boilerplate DMCA Counter Notification, check out this form letter David S. Touretzky.

If the original filer does sue, or you receive a counter notification and decide to file suit, please contact a lawyer, because I am not one, and at that point, you need professional advice.