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

This is very simple, Fathom. The DMCA declaration required from a complainant clearly says, "that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed." It is not perjury to state that one is the copyright owner of a work which has not been registered as copyrighted, because the U.S. copyright law states that copyright subsists in a work from the moment of its creation, not from the moment of its registration.

You would have a point if it instead read, "that I am the copyright owner listed in a certificate of copyright registration or am authorized to act on behalf of the owner named in a certificate of copyright registration of an exclusive right that is allegedly infringed." However, it does not say that.

There is no requirement, anywhere in the DMCA provisions, that a person who makes the DMCA notice have a certificate of registration. A DMCA takedown notice is not a civil action, but a private arbitration matter. One need not have a certificate of registration for the DMCA process.

It could be true that it is difficult to get a certificate of registration and file it with a court within the time period allowed after filing a DMCA notice. However, the power for unregistered owners of the copyright to use DMCA enforcement provisions comes from the fact that if the infringing party does not file a counternotice claiming they have the right to the material, then the material is removed by the service provider. If the infringing party does file a counternotice, they have committed perjury if they claim they are the copyright owner when they are not.

 

the website seems to be down. problem solved

 

YES IT DOES! ...you won't find 2 copyright claims for the same work.

...and that would be the "COPYRIGHT HOLDER"!

The process can take up to 22 months (according to the copyright office)... I'm sure it doesn't take 22 months to rudder stamp something.

Just like all other governing agencies for Trademarks and business licenses a search is conducted to seek out liken documents and their status.

see Circular 40, Copyright Registration for Works of the Visual Arts.

This discussion doesn't apply here.

Making a claim and never needing to enforce that claim isn't the same thing as needing to escalate... when your major legal clients escalate such claims to case law... please report about it.

...if I was the alleged infringer and your law firm came after me without any valid rights I would force them into court... and they can then tell the judge "well we really don't have any prima facie evidence to support our claim"... we just assume everyone else knows it's ours.

 

I'm glad that I saw your post. My first post contained the incorrect url. The site in question is a articlescience.net and it is still active. I just now copied the url directly from the DMCA email. I apologize for the previous error on my part.

Thanks to every who contributes to this thread. This is an important discussion.

 

Contact the datacenter directly instead of the hosting company.

 

You are correct... and I'm sure that so long as no one ever counterclaims you and everyone else here will never have a problem... but when a counterclaim is forwarded and you don't show proof of court action the designated agent "MUST" put back up that alleged infringed content.

What then?

I know what it says... and by not exercising your rights you give up your rights.

Sure there is no requirement to do anything... they are your rights to do as you wish... but when you do as your wish you can't turn around and claim "infringement" on a right you purposely ignored... you still must prove the rights are yours before you can claim someone is infringing on those rights.

Boy are you getting close to the truth... first though, the counterclaim doesn't state I am claiming I own the copyrights - the statement says I have a good faith belief the complainant is mistaken about their claims.

Next - perjury is the criminal offense of making false statements under oath. Before you can get to that point you have to prove that the counterclaim is false - which means you have to be willing to escalate to court action (and that's the next step in the DMCA processes) and then produce evidence that someone else owns the copyright ... and the US court say that can only be done through registration ... and in lieu of that you can't show I acted in bad faith for something that doesn't legally exist.

If $35 registration fee isn't a worthy fee... how likely are court costs and attorney fees?

All things being equal... if you ain't going to court to exercise your rights you ain't going to prove I'm lying about your rights

 

fathom, you are proving yourself to be a blithering idiot.

Do you really think the copyright office does a search of their entire records to see if two works are identical? LOL!!

Just like all other governing agencies for Trademarks and business licenses a search is conducted to seek out liken documents and their status.

You obviously have no experience, and should STOP POSTING and take down any related site.

 

Actually they do - so can you - it isn't that difficult

http://www.copyright.gov/records/

I'll refrain from calling you name when I don't like your respond... so please grow up.

<added>This helps as well

http://www.copyright.gov/circs/circ23.pdf</added>

 

Again, you are proving yourself an idiot. They will do research work for an additional fee, but no search is done for prior works before registration is granted. A registration is an archiving and issuance of a number. On trademarks and business licenses, the search is limited to local records/internal registrations and no outside search whatsoever is done. That is why there are specialty search firms that will do a search for possible common law trademarks, foreign usage, and other possible infringement. Such searches run hundreds of dollars.

Now go away, you're an embarrassment.

 

As the Copyright Office can determine what is and what isn't copyrightable material to accept or reject applications I assume some search is conducted as with (as we both noted) on trademarks and business licenses, a search is done.

As limited as it may be - a search is a search.

The Copyright Office's archive is database driven so a search of their archive is easily conducted and as you pay a fee - that is the fee you paid for registration I see little reason for them to "avoid searching their own archive" - course I'll concede "I assume this".

Please point out where you have conclusive documentation that states otherwise... or are you to just guessing? If I'm an idiot for doing that... we know what you call yourself.

I'm glad you finally found a point that you can truly call your own.

 

How would one go about doing that?

Thanks.

 

Do a backtrack on the IP path and follow the upline of service providers.

I wouldn't bother bothering anyone of the upline until you find one on the list of Designated Agents (noted earlier in the thread) at the Copyright Office...

At least then your takedown order will be taken seriously...

DO NOT send them a takedown order (they cannot actually obey it) - ask them to act on your behalf to address a legal matter associated with one of their customers...

If they say "no" you now have cause to sue them (along with their downline).

If they have applied for DMCA protection they will be more likely to resolve a matter as oppose to the potential escalation to the courts.

That said... be prepared, if the website owner does not recognize a claim of copyright (they can check to see if you have registered your claim)... and they file a counterclaim... your only recourse "now" is court action... and when you decide it isn't worth your effort, time or money... you have given the alleged infringer permission to use the copy as they see fit.

Copyright is only a right to those that are serious about protecting their rights...

 

A separate more direct and likely easier way to approach this... (it's a bluff - but it does work exceptionally well).

The domain owner has AdSense on the domain (are AdSense ads on your pages?)

When a publisher signs up with Google to receive AdSense payments they agreed to only place ad on pages with the publishers permission. (In your colleagues case that is them).

If you send a takedown order to Google AdSense - Google will force the owner to counterclaim automatically (because Google has a good faith belief the content is the account owners or the account holder has already obtained your permission to use)... this escalates your claim to the courts.

Fortunately, most infringers don't wish to hire an attorney - (this is billion dollar Google telling them YOU MUST) and simply ignore Google's mail to send them a counterclaim... in which case Google shuts down the account and sends your colleague 3 months of payments from the publishers account as compensation for your grief as the likely copyright holder... as proof they have acted in good faith.

I say, "IT IS A BLUFF"... for the same reasons I've argued throughout this thread... if Google receives a counterclaim from the publisher and forwards that's to you... you have 10-14 business days to show Google proof of court action... in which case I assume your colleague has zero interest in getting... thus again you have provided Google (and Google's customer) permission to use the copyright material with your non-action.

You shouldn't consider starting DMCA unless you plan to finish it... BECAUSE...

The keypoint here is "copyright holder's permission" to use... obviously NO LEGITIMATE COPYRIGHT HOLDER would allow an alleged infringer to infringe on their rights intentionally... so when you don't escalate to the courts to resolve... that says what?

A bogus claim?

In the future that "inaction" can also be used as a defense... "he falsified a claim before... see here..." and your response to why you didn't proceed at that time will be?

<added> The form to send DMCA Complaint to Google AdSense

https://www.google.com/adsense/support/bin/request.py?contact_type=dmca_complaint

BE ADVISED: make sure your colleague understands the risks here... IF YOU HAVEN'T REGISTERED YOUR CLAIM and a counterclaim is forwarded to you... you have screwed him. </added>

 

Hi fathom,

Thanks for your suggestions as well as the link to the form to send DMCA Complaint to Google AdSense.

The site in question is displaying Adsense ads on the pages with my associate's content.

 

Just remember - Google will force the publisher to sign a counterclaim as they have already agreed when entering AdSense they will not place ads without permission of the copyright holder.

So they can just accept what Google saids at face value and send a counterclaim (never understanding they could be committing perjury) and then your only recourse is court action.

The whois shows a Vietnam address... so in all likelihood they have no clue about copyright law in the United States (nor what their laws are) they likely only know Google pays $ for ads.

Please let us know how it all works out.

 

Just wanted to give you an update.

Submitted information to Google. Just waiting to hear back from them.

I have not heard a peep out of the people at Vortech Hosting. Apparently they do not care about or respect DMCA notices.

That's it for now.

 

They aren't protected under DMCA... you can sue them when ever you wish.

BTW your campaign to get action from the host could backfire

http://www.marketingproductsreview.com/vortech-hosting-ignores-dmca (one example only)

I seriously suggest you contact an attorney (one of those guys that routinely tell their clients "THEY" will act & speak on your behalf & within the law).

 

I sent you a PM, email me I should be able to help you.

 

@fathom: Are you a lawyer?

 

Me specifically - I'm an SEO.