Durango Bill's
Fight DMCA Abuse



Fight DMCA (Digital Millennium Copyright Act) Abuse


This web page covers the following topics

1)  Quotes showing examples of DMCA abuse.
2)  Where to go for information.
3)  What will happen if someone files a notice against you.
4)  How to fight back legally.
5)  How to fight back using an "end run".



Quotes showing examples of DMCA abuse


From the Anti-dmca.org website: http://anti-dmca.org/

              "The Digital Millennium Copyright Act (DMCA)
The DMCA is being used to silence researchers, computer scientists and critics.
Corporations are using it against the public. Public/College radio stations can no longer afford to webcast."


From Dave Touretzky's (Research Professor at Carnegie Mellon University) web page at:
http://www-2.cs.cmu.edu/~dst/Terrorism/form-letter.html

"One of the favorite tools of both cults and corporations seeking to take embarrassing information off the Internet is to falsely claim violation of a copyright or trademark. The Digital Millennium Copyright Act, enacted in 1998, set out a notification procedure that can be used to request an ISP to remove allegedly infringing material from a web page."



Where to go for information

There are probably many web sites that may be of help if you are a victim of DMCA abuse. The following 4 websites will get you started. (Use a Google search for others.)


1)  Chilling Effects Clearinghouse: A general information web site that has information covering both sides of the DMCA problem. If you are the victim of a DMCA attack, you can add your case to their database (http://www.chillingeffects.org/input.cgi)

2)  If you are going to fight back, you will have to file a "Counter Notification Letter" Here is a "Do-It-Yourself Counter Notification Letter by Dave Touretzky". http://www-2.cs.cmu.edu/~dst/Terrorism/form-letter.html

3) Frequently, when you are the victim of a DMCA attack, what you are doing is quoting or using a small portion of the source text to document your criticism of the material involved. Here is the nitty-gritty of the Copyright Law, which defines the "Fair Use" of the material you are criticizing.
http://www.copyright.gov/title17/92chap1.html#107

4) There is a large amount of information on legal cases involving DMCA abuse at the Anti DMCA web site. http://anti-dmca.org/



What will happen if someone files a notice against you

   If someone wants to stop your criticism of their material, they can file a DMCA claim that you are using their copyrighted material. The claim may be frivolous, untrue, malicious persecution, whatever, but they can still file a claim.

   You will receive a "Cease and Desist" notice from the person or corporation involved. This will frequently be followed by a "Notice of Infringement" from your web host with instructions stating that if you don't remove the material in question, they will shut down your entire website. Your choices at this point consist of complying with the order to remove the material, or forget about your website. In either case the material will be removed from the Internet. As a website owner, you are declared guilty with immediate punishment applied. Forget about the 4th Amendment, due process, etc. You are declared guilty. You then have to prove yourself innocent. You must remove the material even if you intend to fight back. (See below)



How to fight back legally

   First, make a backup copy of all the material that you will have to delete. You may need this when you want to restore your web page. Then remove the material in question from your web page. You may substitute a brief note informing potential page viewers that a DMCA attack has been filed against your web page and the material has been temporarily deleted for 10 business days while you contest the DMCA charge via a "Counter Notification Letter".

   File a "Counter Notification Letter" with your web host. The original "Notice of Infringement" will give you the minimal amount of information required and where to send it.
See "2)" above, the "Do-It-Yourself Counter Notification Letter", for a "fill in" form letter that is much more helpful.

   After you file the "Counter Notification Letter" the people that sent you the "Cease and Desist" notice, (the ones that are claiming that you are using their material) have to file a lawsuit against you within 10 business days or else your web host has to restore your original web page.

   As part of the "Counter Notification Letter" you have to state that you will accept a lawsuit from the "Cease and Desist" people. Initially this sounds frightening, but it actually works in your favor. If you were actually infringing the original "Cease and Desist" people, they could legitimately file a lawsuit against you without using the DMCA - thus this requirement on the "Counter Notification Letter" does not open you up to anything that you weren't already liable for. When you return the "Counter Notification Letter", it lets your web host off the hook. Now the original "Cease and Desist" people must file a lawsuit IN YOUR DISTRICT COURT if they want to continue. Frequently this would involve travel and legal expenses on their part. If they do not file a lawsuit (most likely outcome), your web host will restore your web page and you are back in business again.



How to fight back using an "end run"

   After you have complied with "How to fight back legally" (above), there are some "end run" tactics that may work. You have to delete the original material. Unless there is some kind of instruction stopping you, there is nothing to prevent you from creating another web page that has essentially the same information. You can change the text slightly which will make it a "new page". If the original page had illustrations, alter them slightly (use any photo editor, add arrows, captions, etc.) so they are "different". Give the illustrations, and the page a new name (URL identifications), etc. Then put the new page up. If there were links to your old page, include both the link to the old page and your new page in these prior links. If nothing else, this will get your new page into Google's indexes.

   You could even open a new website using the "Free" website offers that are available from many web hosts. Just use the old material on your new free website. Be sure to include a link from somewhere in your old website to "Another example of <whatever> can be found at <your new free website>". This link will be all that Google needs to get your new website into Google's index. The object of course, is that you want people to be able to see what you are criticizing. The "Cease and Desist" people will eventually find out about the new website and may repeat the DMCA attack. However they will be spending more effort than you are, and will eventually be forced to give up.

   Finally, bring up your problem in an online talk group - e.g. one of the Google Groups. If you are having a problem with the "Cease and Desist" people, the chances are there will be a lot of other people that aren't happy about them either. Start a "thread" about your problem, and you will probably hear from a lot of people that would like to help. This might well included people outside the U.S. who are not subject to DMCA attacks.


Return to Durango Bill's home page


Web page generated via KompoZer