1) Quotes showing examples of DMCA abuse.
2) Where to go for information.
3) What will happen if someone files a notice against
4) How to fight back legally.
5) How to fight back using an "end run".
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:
"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
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.
4) There is a large amount of information on legal cases
involving DMCA abuse at the Anti DMCA web site. http://anti-dmca.org/
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
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
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
See "2)" above, the "Do-It-Yourself Counter Notification
Letter", for a "fill in" form letter that is much more
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.
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