Vondran Legal® Copyright Infringement and DMCA Law - Google DMCA submission and response options. Call our IP law firm at (877) 276-5084 if you are in need of a Takedown Lawyer!
Introduction
Here is a common problem I am seeing with Google DMCA takedown notices (many times by a competitor seeking to shut down the popularity of a competitor's website so they lose traffic, and lose business).
What is the DMCA?
According to the United States Copyright Office:
The Digital Millennium Copyright Act (DMCA) was signed into law by
President Clinton on October 28, 1998. The legislation implements two 1996 World
Intellectual Property Organization (WIPO) treaties: the WIPO Copyright Treaty and
the WIPO Performances and Phonograms Treaty. The DMCA also addresses a
number of other significant copyright-related issues.
The DMCA is divided into five titles:
Title I, the “WIPO Copyright and Performances and Phonograms
Treaties Implementation Act of 1998,” implements the WIPO
treaties.
Title II, the “Online Copyright Infringement Liability LimitationAct,” creates limitations on the liability of online service providers for
copyright infringement when engaging in certain types of activities.
This is where you will find the section 512 takedown and counter-notification process.
Title III, the “Computer Maintenance Competition Assurance
Act,” creates an exemption for making a copy of a computer program
by activating a computer for purposes of maintenance or repair.
Title IV contains six miscellaneous provisions, relating to the
functions of the Copyright Office, distance education, the exceptions
in the Copyright Act for libraries and for making ephemeral recordings,
“webcasting” of sound recordings on the Internet, and the applicability
of collective bargaining agreement obligations in the case of transfers
of rights in motion pictures.
Title V, the “Vessel Hull Design Protection Act,” creates a new form
of protection for the design of vessel hulls
The statute also establishes procedures for proper notification, and rules as to
its effect. (Section 512(c)(3)). Under the notice and takedown procedure, a copyright
owner submits a notification under penalty of perjury, including a list of specified
elements, to the service provider's designated agent. Failure to comply substantially
with the statutory requirements means that the notification will not be considered in
determining the requisite level of knowledge by the service provider. If, upon receiving
a proper notification, the service provider promptly removes or blocks access to the
material identified in the notification, the provider is exempt from monetary liability.
In addition, the provider is protected from any liability to any person for claims based
on its having taken down the material. (Section 512(g)(1)).
In order to protect against the possibility of erroneous or fraudulent
notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the
subscriber the opportunity to respond to the notice and takedown by filing a counter
notification. In order to qualify for the protection against liability for taking down
material, the service provider must promptly notify the subscriber that it has removed
or disabled access to the material. If the subscriber serves a counter notification
complying with statutory requirements, including a statement under penalty of perjury
that the material was removed or disabled through mistake or misidentification, then
unless the copyright owner files an action seeking a court order against the subscriber,
the service provider must put the material back up within 10-14 business days after
receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either a
notice or a counter notice. Any person who knowingly materially misrepresents that
material is infringing, or that it was removed or blocked through mistake or misidentification,
is liable for any resulting damages (including costs and attorneys' fees) incurred by the alleged infringer,
the copyright owner or its licensee, or the service provider. (Section 512(f) see video below).
What is the Lumen database?
The Lumen database formerly known as the "Chilling Effects" project, is an online resource that tracks and publishes requests for the removal of online content under the Digital Millennium Copyright Act (DMCA). The database provides transparency and accountability by documenting takedown notices and related legal activities. Lumen is owned and operated by the Berkman Klein Center for Internet & Society at Harvard University.
Here are five interesting facts about Lumen database:
1. Lumen database was founded in 2001 by a group of organizations including the Electronic Frontier Foundation (EFF) and several universities.
2. The database contains over 75 million notices of alleged copyright infringement, as well as requests for removal based on other legal claims such as defamation and trademark violations.
3. Lumen provides a valuable resource for researchers, scholars, journalists, and the general public to track and analyze trends in online content removal and censorship.
4. The database has been instrumental in highlighting abusive practices by copyright holders and other entities who seek to restrict online speech and expression.
5. Lumen is a free and open platform, allowing users to search, browse, and access information on takedown notices and related legal actions, promoting transparency and accountability in the online ecosystem.
Here is a screenshot showing a complaint submitted to Google by Redpoints (a company I recently defeated in my own personal issue with them).
According to the Berkman Klein Center for Internet & Society at Harvard University.
"Initially focused on requests submitted under the United States' Digital Millennium Copyright Act, Lumen now includes complaints of all varieties, including those concerning trademark, defamation, and privacy, both domestic and international. Currently, the Lumen database contains millions of removal requests, and grows by more than 20,000 notices per week, from companies such as Google, Twitter, YouTube, Wikipedia, Reddit, Medium, Github, Vimeo, and Wordpress. Because of recent dramatic increases in notice volume, in 2014 the project upgraded to a more robust, scalable website that provides more granular data and API access for notice submitters and researchers."
Attorney Steve® Quick DMCA Crash Course
Google DMCA submission process
If a company or individual is infringing on your content online, you have options, such as filing a Google DMCA takedown notice. You can get more information from this link (or you can always hire a copyright law firm such as ours to handle this for you). Here are some of the different Google products where you may find your content posted.
Please note, as they recommend:
You may report the same content through both legal and content/product policy reporting paths, but you must file each report separately. Note that reporting content through a content/product policy path does not substitute for reporting it through a legal path and does not serve as legal notice.
Should you counter-notice?
If the DMCA takedown request is the result of a "mistake" (ex. fair use) or "misidentification" of content, you may have grounds to file a counter-notice to get your content back in good standing. However, by doing so, you can open yourself up to litigation if the original complaining party decides to file a federal court lawsuit against you within 10 days. This is why you should always discuss this important decision with an IP and Internet law firm BEFORE you take your next step.
Most understand that "content suppression" is a real thing. Dealing with false DMCA takedown notices, especially from a bad faith competitor is frustrating and can become costly and time-consuming. If you are the victim of such an attack, here are some general suggestions.
- Lawyer up. Your business is important, and dealing with large social media companies can be frustrating. You can try to do it on your own, but if you are not getting responses, it can start to harm your business quickly.
- Keep sending counter-notices informing the online platform (whether it be GitHub, or YouTube or Twitter) as to what's going on. Make sure you are including all the necessary information. Be persistent, you can only imagine how many takedown requests and counter notices a company has to deal with.
- Contact Google legal department. Google has a form you can submit to report false takedowns, and counter-notices. You can work through this route, and/or have a law firm contact Google Legal, providing them with the evidence needed to reverse the negative ramifications of a false claim.
- Make sure to keep a document trail of everything that is going on. Save all your work in a folder, including dates, times, and who you talked to. Do not assume this will be quickly resolved.
- Consider taking legal action, or writing a legal demand letter to the party that may be abusing the law. Submitting false DMCA notices to harm competition is illegal and can result in creating a right to sue them, see the video below. A lawsuit may be against the party sending the letter, and/or a third party agent who submitted the claim on their behalf. There are many companies out there seeking to assert their rights of their clients and may be "taking marching orders" without considering what they are doing.
Dealing with Malicious BAD FAITH takedown artists (17 U.S.C. 512(f))
Click here to view the video. This is one way to go after bad-faith DMCA takedown bullies as I call them.
Contact a Copyright DMCA Law Firm
Since 2004, Vondran Legal® has vigorously protected the rights of our clients. We represent many large YouTube channel creators and independent film makers, as well as companies both large and small dealing with DMCA copyright issues, or other intellectual property issues including trademark, defamation/Anti-SLAPP and right of publicity matters. Call us at (877) 276-5084 or fill out our form submission and we will reach out to you.
