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What to do with Court DMCA Adsense?

Discussion in 'Legal Issues' started by TheSyndicate, Mar 1, 2012.

  1. #1
    Someone stole my content and put it online, i got this answer from Google.

    Do i need to go to court in 10 days? Or just file a court letter within 10 days?


    "We have received the DMCA counter notification provided at the bottom of this email in response to the complaint you filed with us. As described in 17 U.S.C. 512(g), by this e-mail, we are providing you with the counter notification and await your notice (in not more than 10 days) that you have filed an action seeking a court order to restrain the counter-notifier's allegedly infringing activity. If we do not receive such notice from you, we will not remove the AdSense publisher from our program.

    If you have any questions, please contact our DMCA agent at 650.214.4053"
     
    TheSyndicate, Mar 1, 2012 IP
  2. browntwn

    browntwn Prominent Member

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    #2
    So, you sent a DMCA notice to Google claiming copyright on some material. Google responded by taking down the material (or I guess in Google's case ceasing to advertise with that publisher). That other publisher received notice of the take down and filed a counter notice. So, according to the law, before restoring content in the usual case of a host (not sure how it works with adsense) there is a 10 day period after a counter notice where you can go to court and file an action. If you do, a host (again not sure what adsense does) would not put the material back up. If you fail to show them proof of court action in 10 days, then basically you are abandoning your claim for all intents and purposes.

    in regular terms the person who you filed the DMCA against called your bluff and says to Google, we have a right to use the material. Since Google has conflicting information they push it back to you to show you are for real by filing an action against the other person. If you don't then they have no reason to take down anything since they have two people claiming rights to material and nobody willing to go to court to prove it.

    Personally, I have always thought it was a curious thing because most people who say file a DMCA or do file one don't think it though that the other person will file a counter claim (which does subject them to liability if they are full of shit). But, if they do and no action is filed, which I would imagine is the vast majority of complaints by smaller companies or individuals, they basically get a green light to keep using the material. The DMCA only really works for the person filing when the other side capitulates. If they hold firm, they force your hand to file a lawsuit or back off that claim. Anyway, it is a side of the law that seems rarely discussed or considered.

    (At least this is my understanding of how it works)

    Good luck!
     
    browntwn, Mar 1, 2012 IP
  3. TheSyndicate

    TheSyndicate Prominent Member

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    #3
    From what i read i have to say i will file something. But not have to do it? They did not remove the content (they are idiots). The questions do i have to open a claim in USA or do i just file a claim in my country?
     
    TheSyndicate, Mar 1, 2012 IP
  4. contentboss

    contentboss Peon

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    #4
    That's an interesting commentary, especially the bit about liability if they counter claim. Worth thinking about before filing a dmca±!
     
    contentboss, Mar 1, 2012 IP
  5. browntwn

    browntwn Prominent Member

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    #5
    The law itself says, "has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network. " Which would indicate you actually have to file, not just say you will or intend to. As for where that action has to be filed, I would understand that to mean US Federal court since that is where this US Federal law applies but I did not, in my brief reading, see anything specifically saying that. Although, I would assume somewhere in the code the term "an action" is defined as an action in Federal Court.

    It is my understanding of 17 U.S.C. §512(g)(2)(C) that you would be required to notify Google that you have filed an action to stop the copyright infringement that you claimed in your original take down notice.

    You can read the text of the law here:

    http://www.law.cornell.edu/uscode/text/17/512

    As for not taking down the material.... that would be the host and not Google. Did you DMCA the host as well or just Google? As I understand it, Google in their role as an advertiser for the publisher of the DMCA material is a in a different position in that they have no liability for the posted material itself and are not in a position to take it down. It sounds like they would, "remove the AdSense publisher from our program" as a punishment for having to deal with the DMCA but that type of action is not really even covered by the law as I read it.
     
    Last edited: Mar 1, 2012
    browntwn, Mar 1, 2012 IP
  6. browntwn

    browntwn Prominent Member

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    #6
    It is right there in the code. Basically any knowing misrepresenation by the person claiming copyright or the alleged infringer could lead to liability.

    This is where I think if someone in good faith counter claims, even that they have a 'fair use' right to use the material. They would not be subject to knowing misrepresentation. Whereas falsely claiming to have filed an action is hard to do in good faith if you didn't actually file the action. It is really complex, like most legal issues.

    Personally, I have neither filed or been the recipient of a DMCA notice, so I am just going on my reading of the law as written. I am sure there are cases one could read to further clarify the issues.

     
    browntwn, Mar 1, 2012 IP
  7. TheSyndicate

    TheSyndicate Prominent Member

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    #7
    Well i think they cutting the law thin when they give 10 days to file a claim in court in USA if i am in another country. I guess they do not want to loose Adsense. The website owner is beeing a jerk i sent him several emails but he deafening himself.

    What will happen if i say YES i will file a complaint but than i never do? As you said it does not say WHERE i have to file it. I can file here and later in USA.
     
    TheSyndicate, Mar 3, 2012 IP
  8. browntwn

    browntwn Prominent Member

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    #8
    As for the 10 days, you should have read the DMCA and been aware of that before you started the procedure. A lot of people just send it off and do not seem to consider the law. People around DP always suggest sending one at the drop of a hat out but every few people seem to contemplate that a counter-notice may be filed and what needs to happen in that case.

    I can't offer you specific advice. I have no idea what the claimed material is, nor I have read your DMCA notice or the counter-notice you received a copy of. If you are confident in your right to exclusively use the material one thing you could do it to show the other person the liability they are subjecting themselves to by filing a false counter-notice - if in fact that is the case. Again though, threats of litigation with no intent to follow them up only make you look weak when the person calls your bluff.
     
    browntwn, Mar 3, 2012 IP
  9. attorney jaffe

    attorney jaffe Member

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    #9
    The 10 day limit only applies to the DMCA notice. If they continue to use your material you have far longer to sue them (years).

    However, before you can sue them, you will need to register your copyright with the U.S. Copyright office, and you will need to file in Federal Court (which doubles your legal expense.)

    One thing we learned in law school - never sue a turnip. If you do win a judgment is it collectible?
     
    attorney jaffe, Mar 3, 2012 IP
  10. TheSyndicate

    TheSyndicate Prominent Member

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    #10
    The "copyright" material is pictures of ME. Someone has stolen the pictures from my facebook and created fake profiles and try to trick Thai girls to "invest" with "nigerian scam". So yes the pictures are mine the copyright of the pictures are mine. So i am pretty sure i win any case.

    So how would i answer the DMCA notice? Saying Yes i will proceed ?

    I have made a new DMCA notice to them since i did not know that i could link to the picture itself, when i was aware of that i made a new DMCA notise to them.
     
    TheSyndicate, Mar 4, 2012 IP
  11. Law-Dude

    Law-Dude Active Member

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    #11
    You have to actually commence a lawsuit in a US District Court and show a copy of the filed lawsuit to Google.

    There are other strategies that you can use. If there are fake profiles on Facebook that copy yours, you can report it to Facebook to have it taken down--they're very good about that.
     
    Law-Dude, Mar 5, 2012 IP
  12. TheSyndicate

    TheSyndicate Prominent Member

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    #12
    Well in the email i do not have to show them anything i guess i only have to say YES i will file a complaint and when and where is really up to me. If i make a mistake not being from the US of A so pardon my french. No it is on a dating sites using my pictures 9 of them to create a scam profile. The owner of the dating site is being a dick do not want to delete the profile.
     
    TheSyndicate, Mar 5, 2012 IP
  13. ihatefish

    ihatefish Peon

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    #13
    HAHA this is some funny shit
     
    ihatefish, Mar 23, 2012 IP