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".
examples of DMCA abuse
From the Anti-dmca.org website: http://anti-dmca.org/
"The Digital Millennium Copyright Act
The DMCA is being used to silence researchers, computer scientists and
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
to go for
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
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
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/
will happen if
someone files a notice against you
If someone wants to stop your criticism of their
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
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)
to fight back
First, make a backup copy of all the material that
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
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"
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
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.
to fight back
using an "end run"
After you have complied with "How to fight back
(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"
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
can be found at <your new free website>". This link will
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
Finally, bring up your problem in an online talk
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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