DMCA Abuse: On this episode we’ll discuss how people send real & fake Take down Notices to get content removed. Strike Scammers use Takedowns to get user accounts terminated. If companies don’t have a reasonable policy, they can be held liable. What you can do if someone sends a DMCA Take down Notice about content you posted?
DMCA Takedown Notices:
DMCA Takedown Notices were designed to assist content owners in having infringing content removed from locations that are purportedly infringing content. It has become easier to write and send a Takedown Notice and receiving companies have better systems for dealing with notices.
In this episode I am not going to dive deep into liability. I want to focus on how I see people using the “strike” policy and takedown notices to exact revenge on others. Before I do, I will briefly touch upon some of the rules of the game called intellectual property enforcement.
From my experience, companies handle takedown notices in one of three ways; upon receipt of a notice they remove the content; they ignore the notice and leave the content where it is until a notice is escalated to the host level or other levels or until a lawsuit is filed or; in the instance of User Generated Sites like YouTube or Twitter, they disable access to the content, send the user who posted the content a notice that they received a takedown notice, and give that user the opportunity to file a counter notice. If the company who received the notice gets a valid counter notice, they more often than not put the content back up, let the person who sent the original notice know that a counter notice has been received and wait to see what the original sender does. Now from my understanding under the Digital Millennium Copyright Act (DMCA) at this point, if the content owner doesn’t file a lawsuit against the poster aka uploader within a limited period of time, the content stays up and that particular matter is considered closed.
When a company receives a valid Takedown Notice and the content is removed, the person who posted the content to that site gets a strike against them. Under the DMCA, websites are supposed to implement what is a called a reasonable repeat infringer policy. After a person gets enough strikes, that user is to be terminated from the site. Under the law there is no absolute as to what reasonable means. No case has created a situation where an exact number of strikes defines what is considered reasonable. Cases have defined what is unreasonable. Many sites like YouTube and Twitter post their repeat infringer policy and they make clear what reasonable is to them. Some sites consider three strikes. I have seen it defined as three strikes in a thirty-day period. I have seen strikes counted in many ways. One example is strikes counted as one a day no matter how many notices or links they receive on a notice about a particular user. Meaning a user could have 100 different pieces of content on a notice or 100 notices but if those notices are received in one day, a twenty-four-hour period, that counts as one strike. Suffice to say there is no absolute standard. YouTube is considered a site that sets a standard from which many follows but again nothing is absolute.
Copyright Infringement Damages:
The person who puts content on a site can be held liable i.e. be made to pay for putting the content on a site. It’s called infringing the work of another or copyright infringement. Under US Law, if you infringe the work of another you can be held liable. Civil liability can result in damages that can reach as high as $150,000 per infringement and in some instances that person or company can be made to pay the legal fees you incur for enforcing your rights. With Actual Damages, the copyright owner is entitled to recover the actual damages suffered as a result of the infringement, and any profits of the infringer that are attributable to the infringement. In certain instances, there are criminal penalties that can include jail time.
If a website doesn’t implement a “reasonable repeat infringer policy” insert air quotes here, that website or service provider can also be held liable as if they themselves put the infringing content on the website. What can that look like? On December 19, 2019, a Virginia jury decided that Cox Communication was liable for the infringement of over 10,000 pirated songs. The bill, $1 Billion Dollars in damages. How did the jury get to that number? They found Cox liable for about $100,000 per song. A group of studios that included Sony Music, Universal Music Group, Warner Music Group, EMI and others sued Cox for among other claims, not instituting or following a reasonable repeat infringer policy. Whether it was a regular oversight or not, the studios found that after sending hundreds of thousands of notices it took, on average, thirteen strikes for Cox to terminate an account. In my opinion, and the opinion of that Virginia jury, thirteen strikes is ridiculous. Cox will appeal this decision and either the amount gets knocked down or they will settle for a lower amount. Here is the crazy thing, Cox has been in this position before. In 2015 BMG sued Cox, won a huge amount and then Cox eventually settled.
You may be thinking well if they have been here before why not do something? My answer, because based on results, the cost of doing business is worth more than the lawsuits. Briefly, here is what that means…it takes time to build a case of this magnitude and years to fight it. In that time, users are paying Cox every month for services. If they can keep the user as long as possible and know that they can market to them for years, that has value. If you are sued as an infringer of one work or massive amounts of work, you can create a scenario where your legal costs are part of a monthly budget. Also, the end game is not typically going to be what a Judge or Jury says you owe but what you can negotiate with the other side after they have spent a lot of time and a lot of money. In the end, you may take a hit but you still made money that whole time. The hit isn’t that hard. When it’s a public company, when timed correctly, you can dress that hit up so that it doesn’t affect your stock price. That is basically what I mean by, “it’s the cost the doing business.”
All of what I have shared so far is what is supposed to happen or does happen when people are being somewhat honest.
DMCA Counter Notification & Takedown Abuse:
Let’s talk about what I have been seeing more and more and that is what happens when people are attempting to use the system, abuse the process, the DMCA, to get back at another…
I have seen and heard that people are sending DMCA Takedown Notices to YouTube to have competitors content taken down but really in the hope of getting enough strikes on their account to have it terminated. I have seen DMCA Takedown Notices sent to Twitter by competitors attempting to have another person’s account shut down.
The secret sauce if this happens to you and if the notice is truly bogus, is to send the service provider who notified you what is called a DMCA Counter Notification. YouTube and Twitter have links to their online form generator or you can just write and email one.
Like a DMCA Notice, a Counter Notification contains certain information. You have to:
- Identify the removed content;
- State that you have a good faith belief that the content has been misidentified;
- Include your name, address, and phone number;
- Submit to the jurisdiction of the United States Federal Courts;
- And sign it under penalty of perjury with your electronic signature.
What is a DMCA Counter Notification? Click Here
Basically, you the sender represent that the content is not infringing or you are giving a reason why you are entitled to use the work. There a host of reasons WHY the content posted may not be infringing. Among them, from my understanding, and this is not a full list, are:
- The complaining party didn’t include copyright registration information or evidence that the content is even copyrighted.
- The complaining party isn’t the owner or authorized representative of the owner. That is a big one I see.
- Your use of the content falls under ‘Fair Use’. For this one, as it relates to YouTube, Attorney Ian Corzine has a few animated videos on what ‘Fair Use’ is and how it works with YouTube.
- The DMCA Notice wasn’t a valid notice that comported with notification requirements under the DMCA.
Before we continue, if you are in a situation that could be a copyright infringement dispute, it doesn’t hurt to talk to an attorney. I am not one.
This process can be flipped as well. You could send a valid DMCA Takedown Notice to have content you own taken down. Another person can send a Counter Notice and put you in a potential bind.
Again, under the rules of the DMCA when a Counter Notice is filed, the content owner has a limited amount of time to file a lawsuit otherwise the content goes back up. But what happens if the person who files a Counter Notice is not the Owner but someone lying?
That exact situation occurred to a client earlier this year.
Like most episodes, it’s wild story time. For this one, its more appropriate to call it ballsy story time.
Story Time. Nothing Good Comes from Extorting a Beast:
I was involved in a situation that quickly turned in to a lawsuit and ended once we quite dramatically called this well-known hacker pirates bluff. This was one for the history books.
The short story is that this site owner filed bogus DMCA Counter Notifications claiming that he owned the content. i.e. a library of full-length movies and that our client did not have the right to be sending DMCA Takedown Notices. He including a fake name and redirecting contact information. If he would have done this with another company, I imagine he would have had some success.
Again, under the rules of the DMCA when a Counter Notice is filed, the content owner has a limited amount of time to file a lawsuit otherwise the content goes back up.
People do abuse this and file counter notices anticipating nothing will happen. Unless of course you poke a 10,000-pound gorilla. Our client is that awesome gorilla.
Ok long version and all of this happened fast…
Our client was sending valid DMCA Takedown Notices to Google and other search engines to delist links that displayed their infringing content on this particular site. We had been sending valid DMCA Takedown Notices to the site owner, and eventually to their host and CDN provider to have the infringing content removed from that site. The owner of the site, who was also posting the content, was ignoring our notices. Once we escalated the notices about four of every fifty links came down. It was obvious the owner was playing games. The owner as I shared sent Counter Notices to Google claiming ownership of the movies.
We were able to get in contact with the owner. The information was only good for communicating. This person is a big-time hacker who knows how to cause real damage.
We had a few good chats and as a result he took a little more content down. Nothing substantial at all. Get this, the owner was quite upset that we were delisting his links in major search engines. Another great example of a site operator seeing nothing wrong with pirating massive amounts of movies for his profit and our client’s loss. It’s worth repeating, he was very upset that his links displaying pirated content that he blatantly repurposed were being delisted. Full length movies, a ton of them. As you can imagine he had a lot of traffic going through his site and I am sure he was making good money with it.
My first attempt was to get him to comply with takedowns. It was a soft approach and if he was willing, our client was fine not turning him upside down and taking whatever money fell out while crushing him. Because of time and his blatant disregard for notices, we sent DMCA Subpoenas to service providers.
Once he got wind of the subpoenas, he got a little nervous because he didn’t want us outing his real information. His nervousness presented as hostility. Instead of working with us, he thought he would hack his way out or use the system to stop us. I can’t go into detail but he made a valid threat and proved he could act on it.
Since neither we nor our client negotiate with terrorists, the response was an aggressive lawsuit. The claims included copyright infringement, contributory copyright infringement, vicarious copyright infringement, and attempted civil extorsion. The statutory damages at maximum value equaled almost $1 Billion Dollars. The lawsuit coupled with a few other moves resulted in the site operator deciding to turn over his domain and agree to never use our client’s content again or speak about our client.
In this instance we were fortunate because we had the means to act and act very fast to body slam the situation. Most do not have that ability.
This doesn’t mean you can’t do anything. If you can prove the Counter Notice is fake, you can make headway with a service provider.
YouTube Troll Attempts to Extort Money, YouTube Fights Back:
YouTube took action earlier this year against a copyright troll who was using this process to try and extort money from YouTube users. YouTube has a three strikes policy before they terminate accounts. The troll, knowing this, would send two false DMCA Takedown Notices against a user. Then they would send an email to the User saying that if they didn’t pay them a certain amount of money, the Troll would send a third notice causing their account to be terminated. Users rightfully freaked out! Some paid. A smart well-known User let YouTube know what was going on. YouTube, a service provider with no liability, made a big move for its User base. YouTube sued the troll…made it very public. They made this suit loud enough to let others know, if you mess with YouTube Users, there will be consequences. This case obviously settled but more importantly, the public message was made clear; don’t mess with our Users.
Another benefit to that suit is that if this happens on another large platform, there is a legal template to use as a way to fast track resolution. Major kudos to YouTube.
To wrap this up I hope that you walk away with the following:
- If a DMCA Notice is filed against you, and its false, you can file a Counter Notice.
- If a false Counter Notice is filed against you, you can take action. First being to contact the Service Provider and do what you can to prove its false.
- If you are regularly registering your copyrights then proving you own content is easy. You will have a registration form and a registration number to show. If you haven’t received a number yet and followed my steps you will have a PDF of the case filing with the Copyright Office and a case number to show the service provider.
- Beware of Strike Scammers and out those who try and extort from you. Report them. Even if its minor because you never know how that can start a case or help deal with a scammer.
- At times people will use the internet to try and abuse you. Take your money. Scare you. Don’t give in. If you are in the right and can prove you are in the right with evidence, then you can fight back. If it’s a big enough deal, large companies may do the fighting for you or with you.
- Don’t abuse the DMCA. Use it for what it was intended for. If your content is being infringed, use the proper, legitimate, takedown procedures.
- If a site is not taking content down or terminating the infringing user, document everything as I have explained in other episodes, and show it to an Attorney who specializes in litigating Intellectual Property Cases.
- If you are going to make money from someone else’s work, do the right thing upfront and license it.
I hope that this information helps you better protect your content and defend yourself against strike scammers. I’m more than happy to answer questions inside of our FREE Facebook group at Intellectual Property HQ Community.
You can follow me on Twitter @IntelPropHQ
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