Counter DMCA Google play

Question

Suppose that a person received a DMCA takedown notice about a month ago and has filed a couple of counter notices, but and always gets an automated response saying "We are unable to take further action on your request because it does not provide all required information." No action has been taken on the counter notice. What information must be provided? What evidence?

Answer 1

Given that filing a DMCA counter notice is essentially an invitation to a lawsuit, consulting a licensed lawyer in your jurisdiction before filing a counter notice is highly recommended.

To understand what is happening, one must understand the relevant intent of the "safe-harbor" provisions of the DMCA (Digital Millenium Copyright Act). Essentially, there are/were two "complications" of standard copyright doctrine to the internet:

1. The standard of Anonymity online, which makes filing a traditional lawsuit more difficult.

2. Because of the nature of the internet, a) few people host their own content, either using a hosting company directly (like most websites do), or post their content on someone else's website (like Youtube and StackExchange), which makes them distributors, traditionally liable for infringement, (and much nicer targets for litigation, because they have deep pockets). However, without the ability to post on someone else's website, the internet as we know it wouldn't exist (we'd basically blogs, and maybe email).

Both of these issues were "solved"/dealt with via the takedown notice/counter notice system. A displayer of other's content (e.g. Youtube or StackExchange, ISPs, etc.) has "safe harbor" protection from liability for hosting copyright infringing content, provided that they respond to a properly formatted takedown notice within the specified time frame.

Someone one the other side of this, who believes that they do have the legal right to utilize such content, either due to owning it, licensing it, or fair use, can file a counter notice, and upon receipt of a properly made counter notice, must return the content in a specified time period 10-14 days.

This "solves" both of the above issues: The intermediary service is no longer legally liable, instead acting as a message carrier, and if the person uploading the disputed material believes that the DMCA should not apply, they can reverse the takedown, by filing a counter notice that allows the original claim filer to file a standard lawsuit.

Essentially, the hoster gets to say "I want no part of this, this is between you guys, I'm just a messenger".

But what does a counter notice need to contain?

17 U.S. Code § 512g(3) states that a counter notice must contain 4 things (legal code below, my comments are in italics):

Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:

(A)A physical or electronic signature of the subscriber. This is a legal document, you must sign it, either physically or electronically.

(B)Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled. Clarification of what material is specifically being requested to be made accessible again; this information should also be in the original takedown notice

(C)A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. This is essentially the bit that gives legal cover for the hoster to restore access to the disputed content, and places the liability on the counter notice filer's shoulders. Note that this is under the penalty of perjury, so jail time can concievably result if this is made falsely.

(D)The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. Essentially stuff that makes it easy for the filer of the original takedown notice to sue you.

Sources: https://www.law.cornell.edu/uscode/text/17/512

https://www.crucialp.com/resources/tutorials/web-hosting/how-to-file-dmca-counter-claim/

Answer 2

A DMCA counter notice need contain, and should contain, only four things:

A) A physical or electronic signature of the person sending the notice, who should normally be the person who posted the removed content (note that a notice from anyone else has no effect).

B) Identification of the content removed, and the place where it used to be (often a URL). This must be enough to allow the provider to find exactly what is involved.

C) "A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled." This may include a brief explanation of the reasons, but need not, and should not approach court evidence. The provider does not determine if the claim is valid or not.

D) Contact info for the notice sender and agreement to accept service if a copyright infringement lawsuit is brought.

Nothing more than that is legally required.

But one must be well aware, nothing in 17 USC § 512(g) requires the provider to act on a counter notice in any way at all. The counter notice has only two effects:

1. If a provider removes content in response to a takedown notice, the provider retains safe-harbor status. After a valid counter notice the provider may replace the content without losing safe-harbor status, but need not do so.
2. If a provider has a contractual obligation to host the content at the direction of the user, § 512(g)(1) relieves the provider from such contractual liability when a provider removes the content in response to a takedown notice, but restores the contract when a counter notice is received, unless the complainant promptly files suit and notifies the provider.

But when a provider does not have any obligation to host any particular content, when the provider has an enforceable TOS provision allowing it to remove any content at any time for any reason, with no liability to the user (as most social media sites do), then the provider may legally just ignore any and every counter-notice, if it so pleases. The provider may honor counter notices and retain safe harbor, but it need not honor them.