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What do you do if you’ve received a DMCA takedown notice, particularly when you believe that your use of the content is either not infringing, or a fair use? Game lawyer Zachary Strebeck explains the process of responding to the notice and beyond.

Zachary Strebeck, Blogger

March 3, 2014

8 Min Read

In last week’s post, we talked about what to do if someone is stealing your copyrighted content. This week, we will discuss the other side of the situation. What do you do if you’ve received a DMCA takedown notice, particularly when you believe that your use of the content is either not infringing, or a fair use?

The process:

Once the takedown notice has been filed against the content that you have posted, the ISP is required to disable access to that particular piece of content and notify you that such a takedown has taken place. Once you receive that notice, it is best to act quickly, especially if that piece of content is monetized somehow. The DMCA provides for a method to send a counter-notice, outlined below.

DMCA Takedown Notice





The DMCA counter-notice:

A counter-notice sent on behalf of the alleged infringer informs the ISP that they believe that the content has been mistakenly taken down. The counter-notice must take a specific form, and contain the following information:

  • A description of the material removed or disabled and the location where it had previously appeared on the ISP’s site;

  • A statement that the counter-notifying party consents to the jurisdiction of the federal District Court in which his address is located or, if the address is outside the United States, any judicial district in which the copyright owner may be found;

  • A statement that the counter-notifying party will accept service of process from the party that filed the original notification;

  • The counter-notifying party’s name, address and telephone number;

  • A sworn statement that the counter-notifying party has a good-faith belief that the material was removed as a result of mistake or misidentification; and

  • A physical or electronic signature by the counter-notifying party.

What happens next?

The ISP will inform the content owner of the counter-notice. The owner of the content will then have ten days to file a lawsuit in federal court. If they don’t, then the content will be reinstated by the ISP, per the DMCA.

So why should I be careful?

Well, if the content owner is a big company and their IP is important to them, they may just file that lawsuit in federal court. This is a problem, especially when you are an individual who doesn’t have the funds to defend against such a lawsuit. In most cases, you will probably settle, but it may be helpful to have an attorney on your side to help negotiate some kind of an ongoing agreement in order to have the lawsuit dropped.

This could be a license agreement for you to use the content, or an agreement not to sue if you stop using the infringing content. While it is not the optimal solution and is somewhat lopsided given the unbalanced power that most IP owners have, it’s all we have to go on. Until copyright law fundamentally changes, we have to work within the system that we are given.

Before doing anything, it is best to consult with an attorney to see if your use of the content is infringing or eligible for a fair use defense. If you have received a takedown notice, or you need to send one, feel free to contact your local game lawyer to help with drafting and filing the notice or counter-notice.

originally posted on my blog at www.strebecklaw.com/blog

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