Getting back in after DMCA complaint

Yes, you can get booted for something other than invalid clicks. Here's what happened to me.

I was in AdSense for two years with unblemished record. I purchased new site developed my someone else. Two months later, I get a DMCA complaint notification from Google. They said I had one page of copyrighted material on my site. It was true. After owning the site for two months, I had never checked the content I purchased for copyrighted material. I immediately removed the single page ASAP, and soonafter the entire site. But AdSense wanted only to have me file A DMCA counter-notification, which doesn't apply in my case. The CN applies only if you contest the DMCA notification and I couldn't do that because they were right.

Well, I tried to outline the whole situation, but still got the dreaded e-mail. I've asked for reconsideration but have gotten no response. Can anyone offer constructive suggestions on getting AdSense to reconsider my status?

 

The most constructive advice :

Send another mail to them, with the same explanations you gave here.

Not all the mails end up being read.

 

You might still be able to file a counternotification anyway. I'm no expert on it, but there is a form version here:

http://www.cs.cmu.edu/~dst/Terrorism/form-letter.html

There are a lot of other reasons to file it other than them not owning the copyright. Check out the final "laundry list" of little technical things they could have done wrong in their complaint (i.e. not in writing, not sworn under perjury, didn't give you the url, etc.). If you can find one, file it based on that. Then I would try to discuss it with the person whose material you were using - keep them from doing anything else on it, tell them you've taken it down and apologize, and your counternotification will be the last word.

 

What I don't understand about the counter notification is is it:

a) Admission of guilt and promise not to do it again (see google's dmca announcement)

or,

b) A defense that the material on your site is not copyrighted (see chillingeffects form)?

 

Here's the text from the statute (got it from that site):

"(3) Contents of counter notification. - To be effective under this subsection, a counter notification must be a written communication provided to the service provider's designated agent that includes substantially the following:

(A) A physical or electronic signature of the subscriber.

(B) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.

(C) A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.

(D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person."

Remember, the counternotification is something created by the U.S. Congress, not Google - Google is just asking you to do one because if they follow the procedures of the DCMA, they aren't liable for anything. So it looks like from the statute the intent was to be a statement of defense, and not to be an admission of guilt. I'm not sure about the Google announcement you're talking about, couldn't find it. Also look at section (d) there - very important if you're outside the U.S., because you'd be subjecting yourself to jurisdiction here by filing it (although I guess from your name you're here). If you are in the U.S., whatever address you put down you would have to defend lawsuits in the federal district court for that place.

 

Look at Google's DMCA page under the Counter-Notification section. It says this:

3. Include the following statement: "I swear, under penalty of perjury, that I have a good faith belief that each search result, message, or other item of content identified above was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled, or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown."

Look closely at the second part of the sentence "or that the material identified by the complainant has been removed or disabled at the URL identified and will no longer be shown". Could I not submit a CN just stating that I removed the material and it is no longer being shown? Could it be that simple?

I don't want to make a statement of defense because I did have a page of copyrighted material on my site. This is so confusing...arg!

 

OK found it. I would follow Google's form for it, but you do have to include the entire statement word for word, not just the last sentence. However, because of the way it's written, I would say you can safely swear to the whole thing. It uses "or" so you'd be swearing that EITHER it was mistakenly disabled OR it has been removed and won't be shown again - and you meet the second one, so the whole thing is a true statement.

 

I wonder if I could just include the last part, or include the whole thing and bold the last part for emphasis.

 

If you just include the last part, it is possible they will reject it just as a bureaucratic matter (a lot of companies will have strict policies on this, set up by their lawyers, and they won't deviate). However, you might be able to work in a sentence somewhere else explaining briefly that this is what you are swearing to.

 

In part (D) above, does that mean you allow the complainant to serve you with a lawsuit if they want? Couldn't they do that anyways? I don't understand that one.

 

fill out the form...they wil revisit the copyrighted page and see it is gone or not in violation of their TOS...and you will be fine. It will be along road as this type of thing is not resolved overnight...but you should be fine.

Going through the paper trail or "motions" is half the battle.

 

Part D determines where you may be sued. There are limitations on that normally - they're complicated, but the gist is that you have to have some contact with the state where they sue you, otherwise the court doesn't have jurisdiction (i.e., you live there, then the state has power over you. You do business there, etc.). So whatever address you put down, you can get sued in that state and that federal district. It's mainly important if you're outside the U.S., because many people outside the U.S. wouldn't be subject to jurisdiction in any courts here.

 

Thanks for all your opinions/info. I just faxed the letter now.

Anyone care to guess how long the reconsideration process will take?

 

Just a quick note. I was accepted back into the program. Thanks again for the help.

 

Well, good for you

We're all glad we could be of any help

 

Congrats - always good to see the reinclusion process work when it's supposed to and not in the "well, I MIGHT have clicked accidentally 37 times" threads.