If you have received a DMCA takedown notice, then it means that your content has been taken down from the platform. But if the claim is false, then you can file a counter notice in order to protect your rights and content. The Digital Millennium Copyright Act is a US federal law that has strict policies against those people who benefit from infringing content, claiming it as their own. But it doesn’t mean that people don’t violate that. The tendency to file false DMCA claims has increased over the past few years. When people want to get rid of the competition, they file a DMCA notice against their competitor, the platform removes their content, they upload their piece, and it gets all the attention, increasing customer engagement and revenues.
But before responding to a DMCA takedown notice, let’s first understand what DMCA is and how it works.
What is DMCA
DMCA is the Digital Millennium Copyright Act, enacted by the US federal law, which requires ISPs and other platforms to remove infringing content. Internet service providers and platforms follow the DMCA policy, which in turn provides them with protection from liability for copyright infringement by their users.
What is a DMCA Takedown Notice?
A DMCA takedown notice is a process through which ISPs receive a complaint of someone else using their copyrighted material. If you have received a DMCA takedown notice, it means that ISPs have received a formal complaint against you and removed the infringing content from your website. If it is a false claim, you can file a counter notice and have your content restored.
How do Service Providers Know Whether the Content is Infringed Upon or Not?
ISPs usually see the violations in two ways. The service provider or platform might use its own algorithm to see if the same video appears on different sites, or the copyright owner can file a takedown complaint, and the service provider will comply with the rules of DMCA. It is important to know that ISPs don’t judge the merit of a takedown notice; they act as intermediaries between the two parties, so there is a possibility that you might receive a false DMCA claim.
How the DMCA Takedown Process Works
Each service provider has its own way of removing content that violates copyright law. Let’s say you have made a video and posted it online on YouTube with copyrighted music in it. YouTube will not remove the video, but will mute the audio that is someone else’s. Whereas Facebook will remove copyrighted videos from your timeline or newsfeed. When the platform removes your video, it sends you a notification and also probably tells you the name and information of the person who complained about you.
When ISPs receive information about content infringement, they remove it quickly, and the user gets a strike. On 3rd strike, the account of the infringer will be suspended.
Example of a DMCA Takedown
Let’s understand this more simply. For example, you have a YouTube channel for traveling. You show your subscribers different tourist spots that they can go to and enjoy the view. In one video, you are showing them mountains, and you feel that you need to level up your audio game, so you add new audio into your video that gives a complementary effect to your video, but YouTube muted your video. Now, you have received one strike for using copyrighted music on your video. If you understand the copyright policy of YouTube and don’t violate it. In the next months, your strike will be removed, but if you do so, then after the 3rd strike, your account will be completely banned.
Procedures used by other service providers differ, but the process is more or less similar. First, the service providers give a warning, and then repeat offenders get termination of their accounts. You are still liable for copyright infringement if you have given credit to the author, unless you have asked for written permission.
Counter Notice
After receiving a DMCA takedown notice, you have two choices: either you accept it, and the service provider completely removes your content. The other option is to fight the takedown notice if it is based on false claims and have your content restored. For fighting a takedown notice, you can file a counter notice.
When Can You File a Counter Notice?
You can file a counter notice when the copyright term has expired, and the content is in the public domain. You can file a counter notice if you have a licence or permission to use the content. A counterclaim can also be filed if the original copyright owner or its agent hasn’t filed it, but some other person has filed a takedown notice against you. Some of the content comes under fair use, in which takedown notices cannot be filed.
What is Fair Use Defense?
Fair use is an important defense against takedown notices and is the best claim for counter notices. Fair use permits the use of copyrighted work without the permission of the owner. If you are confident that your use is fair, you can file a counter notice.
You need to make sure that you are not infringing on anyone’s work. To file a counter notice, you should have a good faith belief; otherwise, you will be committing perjury by filing false claims.
How to File a Counter Notice
Most service providers have online filing forms for the report of infringement. Your counter notice should consist of the following information.
- Your name, address, phone number, and email.
- The date.
- The URL of the removed content.
- A statement saying that you believe it was removed by mistake.
- Your signature claiming that you understand that you have claimed this under oath of perjury.
What Happens When You File a Counter Notice
It is the same as it was at the time of filing the takedown notice; service providers do not care about the authenticity of the claim. They tell the other party who has filed a takedown notice that they need to take legal action; otherwise, in 14 days, the content will be back online.
Be aware that if the copyright owner sues you, there will be damages and long legal battles in which you might not want to go.
Let DMCA Desk Help You
DMCA Desk can help you with services that include trademark monitoring, takedown services, and counterfeit removal services. Filing takedown notices and counternotices can be exhausting and can take all of your energy. So, it is wise to give these tasks to an agency, and you focus on creating online content, which is important for your brand growth. Contact us if you want to have your site monitored in case of any infringement.
Frequently Asked Questions (FAQs)
Respond to the Notice: It’s a good practice to respond to the sender of the DMCA notice to acknowledge receipt of the notice and confirm that you have taken down the infringing content. You may also want to express your commitment to complying with copyright laws in the future.
A DMCA takedown typically takes a few days to a week, with many being processed within 24-72 hours, although this can vary.
The limitations period for copyright infringement claims is 3 years from the date the infringing activity took place.