The first thing to notice about our handling of DMCA notices and the notification-and-takedown process, is our consistent use of the term "allegedly infringing." Receiving a DMCA takedown notice does not mean you have done anything wrong, or even that you have infringed someone's copyright. It only means that someone has claimed (alleged) that you infringed their copyright.
When you signed up, you agreed to follow our TACOS, and one of the things you agreed to was not to infringe other people's copyright. When you upload content to our service, you are asserting to us that you have the right to make that material available. So on the one hand, we have you, who we have a contract and a relationship with, promising us that your content is legitimate, and on the other we have some random person we've never met who has no relationship with us making a claim that it isn't. Our first inclination, under those circumstances, is obviously to believe the person we know and trust, which is you. For that reason, we do not interpret receipt of a DMCA notification as prima facie evidence that you have done something wrong.
However, that's not the way the DMCA takedown process works. Our judgment and opinion don't really enter into it. By issuing a DMCA takedown notice, the claimant is swearing under penalty of perjury that their claim is true and accurate. For that reason, the law requires us to go through the notice-and-takedown process, even if the notification looks like complete bunk to us. (Unfortunately, civil perjury is a criminal charge, and we're not aware of even one case where a US prosecutor could be bothered to bring that charge in response to an abuse of the DMCA, due in part to the difficulty in proving that the DMCA abuse was intentional and not "an accident.")
Therefore, when we receive a DMCA takedown notice, we will forward it to you in its entirety and give you 24 hours to disable access to the allegedly infringing content it references. "Disabling access" to the content doesn't necessarily mean deleting it, although that is one approach. You could also disable the site, change the file or directory permissions, or temporarily move the allegedly-infringing content to your site's "protected" or "private" directories. It doesn't matter how you do it, but you must remove the content by the deadline or we will have to do it. Our ability to disable access to content usually entails disabling access to an entire site, whether the entire site is allegedly infringing or not. That really sucks if there is only a small amount of allegedly infringing content.
Once you have disabled access to the allegedly infringing content, let us know that you've done so. When you do so, you must indicate which of these three courses of action you wish to take:
- You accept the allegation of infringement and you will not restore the infringing content, file a counter-notification, or make any additional infringing content available in the future.
- You do not accept the allegation of infringement, but you do not wish to restore the allegedly infringing content or file a counter-notification.
- You do not accept the allegation of infringement, and that you intend to file a counter-notification under the Act.
If you do not intend to submit a counter-notification, you may wish to include sufficient supporting justification for us to form an informed opinion on whether to hold this incident against you if future allegations arise, as repeated infringement is grounds for adverse termination of your service (as required by US law).
If you don't respond, or if you indicate that you intend to file a counter-notification and then don't do it, we will assume you are accepting the allegation of infringement. If you don't file the counter-notification, the process ends. Thus, the rest of this FAQ assumes you are filing the counter-notification.
Your counter-notification must be in writing and must contain the following elements or we will reject it:
- An identification of the allegedly-infringing material and the location at which the material appeared before it was removed or access to it was disabled.
- The following statement: "Under penalty of perjury, I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification. I will accept service of process from the person who provided notification under S.512(c)(1)(C) or an agent of such person."
- Your name, address, and telephone number.
- One of the following two statements.
- If your address is in the United States: "I consent to the jurisdiction of Federal District Court for the judicial district in which my address is located."
- If your address is not in the United States: "I consent to the jurisdiction of any judicial district in which NFSN, Inc. may be found." (For your reference, this will typically be either the Florida Middle District Court in Orlando, FL or the Delaware District Court in Wilmington, DE. Both are US Federal District Courts.)
- Your physical or electronic signature.
The best ways to submit your counter-notification are email or fax. If you use email, make sure you're sending a scanned copy that shows your physical signature or a PGP-signed email with a signature that can be correlated to your member contact email address.
Pursuant to the law, we will provide a copy of your counter-notification to the claimant. This means they will know who you are. If you don't want them to be able to identify you, the counter-notification is not an option you can use.
The claimant then has 10 days after receiving the counter-notification from us to file an action against you in the appropriate court seeking a court order to restrain you from engaging in infringing activity relating to the allegedly infringing material, and then to notify us that they've done so. If they do not, we will restore access to the material. (In a case where you disabled access yourself, we will restore access to the material by notifying you when it is OK to restore it. Do not under any circumstances restore access to the allegedly infringing content or make it available at a new location without that notification; that'll result in automatic adverse termination of your service.)
This FAQ entry provides general guidance about our DMCA notification takedown and putback processes. It is not a substitute for legal advice. While we strongly urge everyone not to be bullied or to allow the DMCA process to be abused, we strongly urge you to consult a legal professional if you find yourself in this situation, because the consequences of filing a spurious counter-notification can be significant.
You can get the full text of the Online Copyright Infringement Liability Limitation Act portion of the DMCA here.