We are an ISP, allowing our users to write reviews of their educational experience. Normally the users' free speech rights are protected through the Communications Decency Act, Anti-SLAPP statutes, first amendment, etc. all that.
Lately though, a entity's CEO/Owner filed a DMCA request against us and a very negative review about him and his school in particular, claiming copyright ownership over it. We can claim to be an ISP and gain those restrictions, but as the review is anonymous (we have the IP though), we have no way to contact the author. Furthermore, the DMCA request is clearly false/perjurious -- for several reasons.
- The CEO did not write such a scathing negative review of himself in the third person and then decide to submit it to us anonymously, only to request the takedown. Clearly he is not the copyright owner.
- The CEO has contacted (harassed) us many times (email and letters) concerning this and other reviews, claiming defamation, slander, trademark infringement, and anything else he could think of. Clearly the review is not his.
- We know his IP addresses and the IPs of his staff based upon the emails, of which other false (positive) reviews were submitted.
- The review authors grant us copyright to use their reviews, via a disclaimer on the survey itself.
We normally have a process for the review authors to remove their own reviews, which other reviewers use. We also have a process for entities to dispute the validity of reviews, which other entities use and have used successfully. But we generally reserve the right to decide if a review is valid via process, and this DMCA takedown is putting us into the awkward position of forcing us to choose between being an "ISP" or a "content author/submitter". If we choose not to play the ISP part in responding, then it seems that we open ourselves up to suit as a defamatory content author.
Basically, can we preserve our DMCA- ISP "immunity" and still respond on behalf of the review author?
Edit: I guess basically I am asking a sidestep question. What do we do when WE have the information that demonstrates that the content is non-infringing, and that the DMCA filer is plainly lying? Apart from signing an affidavit (and releasing his/her identity), the original author has no way to prove that he/she is the original author either. And it is really beside the point, since the entity is trying to get negative reviews removed, not protect a copyright of something they own. I mean, it is clear abuse of the system.
Edit 2: Though my question is pointedly what I am dealing with, perhaps it should be revised to a more simple question. For instance, what do you do if you are an ISP who receives a DMCA for content YOU own, and YOU produced, and YOU exclusively hold the copyright for. Do you have to take down your own content until you send a counter notice, and record the counternotice to yourself? So upstream ISPs have forwarded the DMCA to you to handle (because you own all of the servers and power and colocation facility).
There's this built-in assumption in the DMCA which is that the one filing the takedown is actually the copyright holder, and all they have to do is sign a BS lying affidavit, certifying that they believe it to be theirs, which carries very little consequence, and then at that point the onus is upon everyone else to either show they are not involved, or give up the personal information of the owner to a potentially litigiously malicious party. For instance, the information that the DMCA counter notice demands, would otherwise not be provided without subpoena.