Tuesday, March 5, 2019

The DMCA Counter-Notice

Suppose someone uses one of your photos someplace. You wail to your friends about the unfairness of it all, and someone suggests that you issue a DMCA takedown against the evil someone. So, you do that, jumping on the relevant web site, finding their DMCA takedown page, and clicking rapidly past all the legal boilerplate. You mash SUBMIT and grin wildly. Victory, surely, is yours! Your photograph is taken down.

A little later, the evil someone files some mysterious and no doubt illegal "counter notice" and the photograph re-appears! The web site becomes thoroughly unhelpful, having clearly been subverted by the evil someone, and now apparently you have to either go to court, or give up. This is the terrible! You have a sad! Your friends are baffled, especially the idiot who told you to file a DMCA notice! It is a conspiracy against you, and all photographers.

Except, actually, no it is not.

The DMCA takedown is step one of a legal process, about which you would know quite a bit if you hadn't clicked past the legal boilerplate in a hurry to get to the SUBMIT button. The thumbnail sketch of how it actually works is like this:

You file a notice with a web site. The web site arranges for the content to be taken down, and notifies the alleged infringer.

If the alleged infringer folds, you're done. This is the usual outcome.

If not, the alleged infringer files a counter notice, possibly because they are a large corporation with deep pockets, or possibly because they know more about copyright law than you do, and they're actually in the clear in their use of your photograph. At this point the web site you filed the takedown with will generally reinstate the content. This is when your photo reappears.

Fun fact: I had a guy tell me "it can't be fair use, because you stole it!" which is some kind of galactic-level nonsensical sentence.

It is not twitter's job, nor google's, nor Facebook's, to work out who really owns the photograph. These entities are just serving notices and acting in accordance with the law. The actual resolution of whether someone has or has not infringed your copyright is a matter for the court system, if you and the alleged infringer don't work it out yourselves.

Once the counter notice is filed, you have two options: you can fold, or you can go to court. If do you decide to go to court, there may be a fairly short clock running, you may have to decide to retain a lawyer within a couple of days. Don't try this without a lawyer, by the way. Really. Maybe try representing yourself on a murder charge, but don't give it a shot in a copyright case.

Filing a counter notice does commit the filer (the alleged infringer) to the next step, which is court. If the original filer of the DMCA takedown does not fold, costs begin right about here. So why would anyone file a counter notice? Who really knows, but among the possible motivations: there is no infringement involved (e.g. fair use), or the infringer is prepared to take a risk of losing probably after estimating that you're bluffing.

Almost everyone who files a DMCA notice is bluffing, whether they know it or not. The process leads, pretty directly, to court. If you're not prepared to go to court to not only prove infringement but also to prove your ownership of the copyright, you are bluffing. Both of these things are probably a lot more complicated than you imagine, and there are a lot of pitfalls. I am not a lawyer, and cannot advise beyond "ouch, complicated and risky."

Is it safe to bluff? Well, yeah, in practice pretty much. You can just fold if a counter notice comes back. There may be some ways you can get hammered here, but the normally if you filed a DMCA takedown, you will just fold at this point, and the alleged infringer wins.

Technically, though, you probably shouldn't be submitting the notice in the first place if you're not prepared to back it up in court. The DMCA is not a toy, it is not a tool for harassing people you're angry with, and it is not a hammer of automatic victory for copyright holders.

It's just step one in a legal process that leads in a short number of well-defined steps to the courtroom.


  1. One real problem here is that so many sites strip all Metadata from images. Information that would have copyright ownership with the original image and stay attached with each use.
    If Google and others were actually hit with legal sanctions for removing this information it would help a lot.
    Then, the proposed Small Claims Copyright Court might be a great help. Not every case of infringement if a $150,000 case and having the option of quick hearings, self representation with a limit of $10,000 or so would be nice. Make it fast and friendly and it would work.

    1. The DMCA was basically designed by and for large corporations to go after individuals and punish them savagely. So, while it looks like a handy and easy-to-use tool for individuals and small businesses to use, it's actually not that great.

      That said, it works *fairly* well, because mostly the other guy just folds, and we're done. But, not always.

    2. If Google, or any ISP, got hit with legal sanctions, they *would* take everything down the moment someone complained. However, there is no mechanism, in US law at least, to penalize false claims, so we already see a lot of take down notices that are simply attempts to troll or silence people.

      YouTube already has a problem with their ContentID system where large corporations claim copyright over someone else's work or work in the public domain, then Google takes takes the video down or sends its ad revenue to the large corp. Imagine if you posted a photo to a stock photo site, and then have some corp paid for the stock photo, put it in a database and forced your hosting site to take your photo down. This has happened to creators and even works created with public domain music.

      Europe will soon vote whether to require all sites to have upload filters to scan for copyright infringement (Article 13) and deny the ability to upload said work. Such systems are expensive and don't know how to distinguish between infringement and fair use. If it passes, expect it to help the big (US) sites and harm free speech. You can find more about it at https://juliareda.eu/eu-copyright-reform/.

  2. Do you want the image taken down or would you rather be paid a usage fee?

    In the UK we have a small claims copyright court. Online and affordable it works like a dream, not that I or anyone I know has used it. But as a viable promise of action it does an excellent job focusing infringers minds.

  3. I must have been hit with at least half a dozen DMCA notices for bashing the crayon eating world of YouTube photographers. Teddy 'the art of photography' forbes went as far as brigading me with DMCAs to get me taken offline. It worked. He knows my roastings are fair use but there is that chance he turns to his 500k strong audience to pay for a legal challenge if I counter to stop the bad man stealing his art. Imagine explaining to the Mrs why you need to spend her kitchen extension money on a team of copyright lawyers in America...