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Received a notice from the DMCA

Discussion in 'Legal Issues' started by aetdinger, Jun 6, 2012.

  1. #1
    Hi everyone, Has anyone ever received a notice from the DMCA (Digital Millennium Copyrights Act) via your ISP or hosting.
    [h=3]
    [/h]If you have, i would like your input on what to do and also what penalties you may have incurred.

    I have heard various scenario's from just a simple as a take down notice not resulting in any penalties, once the copyrighted items were removed. I have also heard of people being extradited to the US were some have had jail sentences and the max of $150,000 fines. India and china are not included as they do not have there own DMCA type organisation.

    Obviously I have recieved one and i will be updating this thread with the outcome.

    Thankyou all for your input
     
    aetdinger, Jun 6, 2012 IP
  2. frankiedog53

    frankiedog53 Member

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    #2
    just remove your copyrighted material and they will leave you alone
     
    frankiedog53, Jun 6, 2012 IP
  3. xenoo

    xenoo Active Member

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    #3
    I had a DMCA notice once I just removed the content that was violating it and they left me alone.
     
    xenoo, Jun 6, 2012 IP
  4. MTbiker

    MTbiker Well-Known Member

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    #4
    You don't receive a notice from the DMCA. You receive a DMCA notice from a copyright owner. You will usually be fine if you comply with the DMCA and remove any offending content. However, some copyright owners may pursue legal action without even sending a C&D or DMCA notice first. Those are the ones to worry about!
     
    MTbiker, Jun 10, 2012 IP
  5. dom19

    dom19 Active Member

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    #5
    i think if you have remove it on time, you will be fine.
     
    dom19, Jun 10, 2012 IP
  6. aetdinger

    aetdinger Active Member

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    #6
    update, the content ws removed within the deadline now just waiting to hear back. I will keep you informed
     
    aetdinger, Jun 11, 2012 IP
  7. dscurlock

    dscurlock Prominent Member

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    #7
    If you register your sites with the US copyright office, then by law, you have to be notified before they can take
    any legal action, that is one of the perks of being protected by the US government, if you still refuse to remove
    said content after notification, then all bets are off, then they can persue legal action if they wish, and without
    your site being registered with the US copyright office, you are right, they can take legal action without notification.

    In most cases, only the 1% will actually ever take legal action (Those with money) The other 99% (poor people) are just
    blowing smoke, they are unlikely to pay $1000's in legal fees in hopes to recover any legal fees, and if you are broke,
    then they have lost $1000's in legal fees with nothing to show for in the end. If the 99% sue the 1%, they may
    get something, or they may tie you up in court for the next 10 years until you are homeless.

     
    Last edited: Jun 11, 2012
    dscurlock, Jun 11, 2012 IP
  8. browntwn

    browntwn Illustrious Member

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    #8
    This is incorrect statement of the law as I understand it. Can you point to anything that shows a lawsuit cannot be filed? I do not see any authority for the part I underlined.
     
    browntwn, Jun 11, 2012 IP
  9. dscurlock

    dscurlock Prominent Member

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    #9
    My understanding is, yes, you can file a lawsuit sure, but when it gets to court, and it all comes out that proper
    procedures were not followed before filing the lawsuit then it will just be dismissed...

    If I am wrong in anyway, then please feel free to correct me...

    otherwise, what would the point be in registering your domains with the us copyright office? Just because?

     
    dscurlock, Jun 11, 2012 IP
  10. browntwn

    browntwn Illustrious Member

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    #10
    The point would be so you could sue other people for infringing on your copyright, a requirement before filing your own offensive lawsuit. This is true for all copyright lawsuits.... that the copyright holder seeks to file. In order to file a lawsuit, you need to register with the copyright office before filing your suit. That rule applies to books, movies, and material published online.

    I am not sure what you are looking at that makes you think it protects you from being sued, or requires any notice before someone sues you. If you show me, I can look at it and read it. I just glanced at circular 66 which deals with protecting online materials, but did not see anything that mentions someone needed to give you a notice before suing you.
     
    browntwn, Jun 11, 2012 IP
  11. dscurlock

    dscurlock Prominent Member

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    #11
    So the point is for me to register my domain, so I can sue someone?

    Does that really make sense to you?

    I will see if I can find the link...
    I have it saved someplace...

     
    dscurlock, Jun 11, 2012 IP
  12. MTbiker

    MTbiker Well-Known Member

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    #12
    Yes, makes perfect sense to me. It's about protecting your copyrighted material, not protecting you from lawsuits. That's what insurance and good contracts are for.
     
    MTbiker, Jun 11, 2012 IP
  13. dscurlock

    dscurlock Prominent Member

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    #13
    maybe, it could have been explained to me wrong...

    What I read about was this company was going around suing sites that had parts of their content without notice, and
    it was explained to me that you needed to register your domain for certain protections before being sued...

    I guess that is what happens when you start reading stuff online, people can write about whatever,
    even if they do not know what they are writing about, but I will continue to look into this some more...

     
    dscurlock, Jun 11, 2012 IP
  14. browntwn

    browntwn Illustrious Member

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    #14
    I am not too familiar with the rules regarding registering a domain (well, the website contents, a domain name cannot be copyrighted) (I think they have to do with the continually adding of new material to be covered by the registration.)

    But if you want to read more about the requirements of registration before suing you can search this "Registration as prerequisite"

    Here is the key provision:

    http://www.copyright.gov/title17/92chap4.html#411

    More on registering website:

    http://www.copyright.gov/help/faq/faq-protect.html#website (which basically references circular 66)
     
    browntwn, Jun 11, 2012 IP
  15. dscurlock

    dscurlock Prominent Member

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    #15
    I found a form that says Agent to receive notification of claimed infringement...

    I do not know about you guys, but I dont think this means protecting my material...
    I think this means protecting my sites that may contain copyright content...

    Brown: this is not about copyrighting a domain...
     
    dscurlock, Jun 11, 2012 IP
  16. dscurlock

    dscurlock Prominent Member

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    #16
    Here is what I found:

    Service Provider Designation of Agent to Receive Notification of Claims of Infringement

    I am no law expect, but from what I understand from reading this is that the US copyright office
    gives registered agents limited protections if copyright material is found on your site, of course,
    you do not have to remove infringement content, but by not doing so, you no longer have
    limited protections of the government, if I am wrong, then please correct me...

    The Copyright Office has created a directory of designated agents from the designations filed with the Office for those service providers seeking the limitations on liability contained § 512(c). A copyright owner of an exclusive right, or authorized agent of a copyright owner, may use the Office’s directory of designated agents to find the designated agent of a service provider that is hosting claimed infringing material, and may use that information to send a notification of claimed infringement to the service provider’s designated agent. (See § 512(c)(3) for the required elements of notification.) Upon receipt of a compliant notification of claimed infringement, a service provider must respond expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of the infringing activity, if the service provider seeks to receive the benefits of the limitations of liability contained in § 512(c). A service provider is not required by law to remove the allegedly infringing material, but upon receipt of a compliant notification will deemed to have been placed on notice of the allegedly infringing activity, and without the benefit of the limitations on liability contained in § 512, may face secondary liability for continuing to host the allegedly infringing material.

    http://www.copyright.gov/onlinesp/

    So my understanding is this: If the other party wants to have a successful lawsuit, and since I am
    registered with the us copyright office, then they have to properly serve a DMCA notice...
    The atty would know this, and he would also do his homework, and not put his clients case at risk
    by just jumping into a court room without following proper procedures...

    sites that are not registered with the US copyright office have no protections, sue at will....
     
    Last edited: Jun 11, 2012
    dscurlock, Jun 11, 2012 IP
  17. browntwn

    browntwn Illustrious Member

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    #17
    That is for the OSP (Online Service Provider as referenced in your post), for example, the host of the website doing the ingringment. The agent is the person that OSP designates to receive the DMCA.

    The DMCA protects a host by giving them notice, the DMCA, before they are sued. If they follow the DMCA provisions, they are protected from being sued. That is the safe harbor effect of the DMCA. It offers no protection to the infringer of the copyright, only to the OSP. If the OSP does not follow the rules set forth in the DMCA, they ALSO can be sued in addition to the infringer. So the DMCA requires that the agent for the SP get a copy of the DMCA notice before they can be sued. That does not mean that actual infringer needs a notice. In fact, the party that owns the copyright can skip the DMCA process entirely and just sue the actual infringer in court.

    So, the protection you are referring to does exist, but not for the website owner, it is for the OSP - and it is the whole reason the DMCA exists, to protect the SP. Basically, if a website is infringing and the OSP is notified via the DMCA and does nothing, they also can be sued. However, if the OSP is never given a notice (and thus an opportunity to remove the infringing material their client the website owner is using) they cannot be sued. Also, if they receive a counter notice, they are also protected since they then end up being in the middle of two parties both claiming a right to the material. This is what protects most web hosts and sites like youtube from being sued. They must get a notice first before they can be sued. But no such protection is given to the actual infringing party.

    All this does is give them protection against secondary liability that they might face. Before the DMCA they could have just been sued in the same lawsuit as they infringer. Now, if they follow the DMCA and remove infringing material upon receiving a valid DMCA notice they have protection against being sued.

    http://www.copyright.gov/onlinesp/
     
    Last edited: Jun 11, 2012
    browntwn, Jun 11, 2012 IP
    xanth likes this.
  18. omgcats

    omgcats Member

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    #18
    Following up with what browntwn said, the OSP can also be a site that hosts user-generated content (like facebook, flickr, youtube). If you own a site that hosts user-generated content, you can fill out a form to register a DMCA contact for your site. Then when a user uploads material that violates copyright, the copyright holder sends a DMCA takedown notice to you (the site owner) and if you comply with the takedown, you are not responsible for having hosted the content. It does NOT protect you from anything that YOU upload personally, it only protects you from the actions of your users. And in theory they could still sue the user who uploaded it, but in practice they rarely do. This system is basically the backbone of the internet and there would be no user-generated content if the people hosting it could be held liable for their users.

    In response to the original post, most of the time you just remove the content and that's the end of it.
     
    omgcats, Jun 12, 2012 IP
  19. attorney jaffe

    attorney jaffe Member

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    #19
    And another thing -- The DMCA safe harbor is not effective for a host unless the site has a DMCA notice which provides the user with the procedure to follow for sending and responding to the notice.
     
    attorney jaffe, Jun 12, 2012 IP
  20. aetdinger

    aetdinger Active Member

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    #20
    Everyone has provided some brilliant information on the topic, I would like to say thankyou first.

    So what i have got out of all of your input is that in order for me to file a notice against someone i would need to be registered with the DMCA.

    And in order to get a penalty/sued, It would require me to REFUSE to remove the content and only then i would be unprotected by government safeguards.

    Sounds pretty good to me. Thanks again
     
    aetdinger, Jun 12, 2012 IP