DMCA Notices and Counter Notices

The Digital Millennium Copyright Act or DMCA can be a benefit or a hindrance depending on who you are.

What Does the DCMA Do?

The DMCA provides protections to internet service providers, as well as any other online platform that hosts other’s content, including immunity from being sued for copyright violations. So, if you own a site where the public can post reviews or comments or debates, or a message-board type atmosphere, you don’t have to worry—if someone posts something that violates someone else’s copyright laws, you will not get sued.

The tradeoff for that is that ISPs and others that host content have a duty to immediately inform the poster and take down the infringing content. The result is that many online service providers or online marketplaces or social media sites all are very quick to take down anything that could conceivably violate copyright laws.

A Help or a Hindrance?

If you host this kind of information, the DMCA is a great help to you. But often, you’re on the other end—you’re the one that posted something, and you get a notice from an online site, and you have your content taken down. You end up a victim of the “take the content down now, ask questions later” strategy that many online sites have adopted.

Many of these sites use bots or AI or algorithms to detect infringement, and do little or no human investigation into whether your content actually does infringe on anybody’s intellectual property rights. Other times, the site is responding to an actual notice provided to them by the alleged copyright owner.

Ultimately the ISP or site has little choice—they are not charged with any duty to judge whether content infringes—the site is just a go between, and must remove the content, to keep its legal immunity.

If You Disagree With the Takedown Notice

All of this means that it’s entirely possible you’ll have your listing or content or advertisement or video taken down, even though it doesn’t really infringe.

If you do disagree, you have the opportunity to challenge the takedown notice provided to you by the site or provider. This is called a counter-notice. Of course, whether your content does infringe or not is a legal question, and many people who feel they have a right to use copyrighted information do not actually have such permission.

Many sites have their own forms allowing people to file counter notices. The counter notice must state the material that was removed, and why you think you had a legal right to post or display or use the copyrighted information.

The copyright owner will get your counter notice. It is a legal document, signed under penalty of perjury, so you may want to consult with an attorney before filling out a counter notice.

After you provide the counter notice, the other side (the claimed copyright owner) has fourteen days to actually file a lawsuit against you, so you can expect to be sued, rightly or wrongly, if you encounter a copyright owner that continues to believe you are infringing even after reviewing your counter notice.

Let us help navigate the legal issues surrounding your online business. Reach out to the West Palm Beach business litigation attorneys at Pike & Lustig for support.

Source:

dmca.com/FAQ/What-is-a-DMCA-Counter-Notice