How To Get A Hosting Company To Respond To A DMCA Takedown Request

Hello,

I'm trying to help out an associate of mine that found of ton of his content being used on articlesscience.net without his permission. I sent a DMCA takedown notice to the hosting company which is Vortech Hosting in Florida, but they have not responded. I sent the notice 3 times in the last 15 days.

I want to help get this resolved, but I have yet to run into a hosting company that doesn't respond to DMCA notices. I have even called their support number, but always get an answering machine. I leave a message, but have yet to get a return call.

Any suggestions on how I can help get my associate's stolen content removed from articlesscience.net?

Thanks in advance for your help.

SQ

 

Have you tried to contact the website owner first?

 

Hi Rian,

I have to openly admit that I have not attempted to contact the owner.

I used to do this regularly, but found that 95% or more of the time I just got lip from the owner and had to contact the hosting company to have the content removed anyway.

Thanks for your input.

 

LISTEN UP!

First you don't understand DMCA... if the host IS NOT in this list http://www.copyright.gov/onlinesp/list/a_agents.html (and they are not) they are not protected under DMCA Title II ...

Because they have no protection from claims - your associate may sue them at their leisure provided your associate has already registered their copyright claim.

BE WARNED DMCA is not a replacement process for copyright law and the courts... you are seriously getting your associate in deep shit.

If your associate hasn't registered their claim of copyright they have no foundation to sue (and no legitimate reason to use DMCA) because the first step is "proof of copyright"...

It's worth noting (A damn good bet) [SIZE=-1]"I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."[/SIZE]

You (and your associate) have likely committed perjury through ignorance and ignorance of the law is why you contact an attorney to see what you should do.

... the alleged infringer... now has a legal claim against your associate for falsifying written statements.

If your associate is serious about their rights - then register them... if they decide not to register they forfeit their rights.

You "bluffed" assumed the host "called"... and you lost.

Consult an attorney.

 

You do not need to register a copyright before filing a DMCA (there is no requirement to register a copyright) - the OP has not committed perjury as long as they are the owner of content.

 

Fathom, there is no registration required for ownership of copyright to exist. The article was copyrighted the moment it was written.

 

Hi!
If the owner does not respond..keep going up the ladder. See who owns the server. If that does not work..certainly finding out who provides transit is the next step.

Bryon

 

Having a rightful claim to copyright is not the same as being a copyright holder.

DMCA assumes you are the rightful copyright holder the moment you file a DMCA takedown order...

OK so I'm the alleged infringer... and I counter claim as I don't recognized your claim of copyright...

Your next action is to show proof of court action within 10 business days... should you not the takedown order is invalid and the alleged content must be return to its previous status.

In the US you can only file court action with your certificate of copyright registration number... as you first have the burden of proof of showing you are the legitimate copyright holder before you can claim any infringements have occurred.

As registration in now (up to) a 9 month process... you cannot fulfill on your obligations to show proof of court action in 10 business days.

As such the OP has commited perjury because they are in fact not the copyright holder. (a right to claim isn't the burden of proof in the United States)

No that isn't true either...

The moment you place intellectual property into tangible form you have a rightful claim to copyright... if you do not exercise that claim you cannot LEGALLY claim anyone has infringed on it.

 

Hi fathom,

I am most certainly no expert with regard to DMCA. I have simply been repeating the steps that have been effective in similar situations.

mjewel and Law-Dude. Thanks for your input.


bryon123,

Re: "If that does not work..certainly finding out who provides transit is the next step."

How would one go about doing that?

 

It is understood that most everyone who steals your copy will read a DMCA claim, pause, and accept your claim at face value ... and do as you advise... but you are unknowingly breaking the law.

Copyright infringement is a serious matter... that why you must have a registered claim in the United States.

 

An unregistered copyright holder has the legal right to file a DMCA - it is NOT PERJURY. Quite simply, you don't know what you are talking about and shouldn't be posting in the legal section.

Copyright Secured Automatically upon Creation
"The way in which copyright protection is secured is frequently
misunderstood. No publication or registration or other action
in the Copyright Office is required to secure copyright."

http://www.copyright.gov/circs/circ1.pdf


And one of the attorney's here can correct me if I am mistaken, but I believe an unregistered copyright holder can certainly sue for actual damages (at least under state laws), just not for attorney fees or statutory damages.

If the OP doesn't want to sue (which is probably not worth the effort) they can file a DMCA with search engines to have the infringing content deindexed. If the site is running adsense, I would also file a DMCA with them and possibly get their account banned.

 

hmmm... maybe you should read the complete document (page 7)

I absolutely agree with your initial statement... you never need to register your claim BUT you cannot claim any INFRINGEMENTS occurred without it... and

... the fact that the DMCA process was used and that process assumes "YOU ARE A REGISTERED HOLDER OF COPYRIGHT"... in this instance you are in error.


<added>...and from DMCA (page 12

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.

...and from copyright Office registration documents:

...that quite a bit longer than 10-14 business days.

The point - NO you don't need to register a copyright but YES you do if plan on exercising your rights.</added>

 

Wrong, there is no assumption that you are a registered holder of a copyright. This is a complete fabrication on your part. If you didn't fabricate this statement, show me a link to a law firm or legal ruling that states this.... waiting.

"Without registering your copyright, typically you can only get actual damages – the damages that you actually suffered and can prove. This may include lost revenue and reputational damage."

http://www.eclewis.com/wordpress/?p=109


You can also look up the ongoing case The Football Association Premier League Ltd. et al. v. YouTube, Inc. et al.

"The court sided with the defendants, ruling that Section 412 of the Copyright Act prohibits recovery of statutory damages unless the work was registered: (1) before the infringement commenced; or (2)
within three months after its publication."

Unregistered Copyrights

If you do not register your copyright before the infringement occured, you have rights against an infringer such as the right to obtain damages for your lost profits, the infringer's profits and an injunction, but you cannot obtain statutory damages or attorneys' fees.

http://www.keytlaw.com/Copyrights/cheese.htm

So while it's true that your options are limited without a registration, it is false to outright state that you cannot sue for any damages. I highly doubt the OP is interested in spending tens of thousands of dollars to file a lawsuit in any event.

 

You can't jump to damages without proving an infringement occurred and you can prove any infringement occurred without demonstrating to the court you are the valid copyright holder and that can't be done without a governing body doing an extensive search for other documents which might refute your claim (or rather supporting your claim).

 

Proving copyright infringement can be simple (as with the NFL) or complicated - but that is regardless of a registration. This isn't a criminal trial, it's a civil matter where the poof doesn't have to be absolute - it can come down to who is more believable. A registration isn't absolute proof of copyright ownership in any event - I could grab a photo off of Google and send it in and be granted a registration. The court isn't going to tell the original photographer they are out of luck and aren't the valid copyright holder if they can show persuasive evidence or testimony to the contrary.

Hmmm.... Still waiting for you to provide any evidence for your claim that a DMCA has to be made by a registered copyright holder.

 

[SIZE=-1]As noted in this thread from referenced documents: [/SIZE][SIZE=-1]

[/SIZE]

... these mean what?

para 1 penalty of perjury sounds like a serious court thingy, and the DMCA order implies infringement and para 2 states you can't finalize an infringement claim without registration and you can't do anything about infringement without a court of law and para 3 states "you goofed" if you didn't register... so I would conclude that "not registering" isn't the suggesting meaning of "copyright owner".
[SIZE=-1]

[/SIZE]

How does a court determine that the original photographer is the valid copyright holder without valid documentation?

 

1. A DMCA isn't a lawsuit.

2. I've already shown that you can sue without a registration (unless you want to claim that those intellectual property rights firms I linked to above are wrong, AND that the recent ruling by the New York Southern District Court in The Football Association Premier League Limited et al v. Youtube, Inc. et al is wrong and they should have thrown out the entire case (which is an unregistered copyright) instead of just rejecting statutory damages.

Face it, you posted false information, period.

 

DMCA is a process... and the documents you sign that your statements are accurate, are not, if you are are not the rightful copyright holder (just because you think you are the rightful owner doesn't make it so that must be proven and DMCA isn't the venue to prove anything - a court of law does that) and it is clear in the literature what is defined as a copyright holder.

As for your Football thing the U.S. District Judge Louis Stanton handed down two rulings.


First, the court held that foreign copyrighted works that have not been registered in the U.S. cannot receive Copyright Act protection unless they fall under the law's 'live broadcast exemption."

Second, the plaintiffs' punitive damage claims. "As a matter of law," the judge held, the Copyright Act doesn't allow for the recovery of punitive damages.

You can argue that foreign copyright might get it's day in court (because you don't need to register in foreign lands) but the ruling was clear not being registered in the U.S. cannot receive Copyright Act protection unless they fall under the law's 'live broadcast exemption."

The likely reason it landed in front of a judge is the "foreign issue" and copyright laws elsewhere differs...

...it's obvious that "live broadcast exemption" isn't a factor in this thread...

As for your other point - I'm sure you if you go the route of a class action suit you'll get in front of a judge but that isn't the "usual copyright infringement case" and foreign copyright isn't the same as the US so would think that defined the reason for the audience....

That said, it really didn't change the outcome.

Facing it... you're not overly relevant!

 

I notice you continue to ignore the contrary information posted by actual IP attorneys in the links above, lol. You also can't seem to find a single link that states signing a DMCA must be done by a registered copyright holder otherwise it is perjury (it isn't).

(Unregistered copyright owners can only sue for actual damages.)
http://www.lawupdates.com/commentar..._no_statutory_damages_available_when_copyrigh

I never filed paperwork with the Government for a copyright. Can I still get it removed?

Yes you can still get it removed. In the United States and most countries you do not need to file copyright papers to prove you own the copyright. Though we recommend getting your material copyrighted as it makes suing for damages easier, but a Government Registered Copyright is NOT necessary in order to get your content removed.


http://www.dmca.com/

PROOF you have no clue about what you are talking about and no one should listen to anything you post.

 

Registration doesn't determine who the valid copyright holder is. It just determines who registered. Do you think that the copyright office actually dispatches investigators to determine the true origin of every piece of crap someone sends to them?

I could steal one of your photos while visiting your house for dinner, register it, and then file a DMCA claim when you later put it on the web.

You would still win if it fell through the DMCA process and went to court because you could prove that you actually took the photo (you were at the location and I was not, it's still in your camera, you have the original, whatever).

Also, I'll mention that one of my clients is a major (AMLAW 100) American law firm. They recently filed a DMCA notice in response to a few pages being lifted from their site. They had not registered anything with the copyright office. And I an assure you a firm of this type would not put themselves at risk of perjury claims.