Can an ISP respond to a DMCA counter notice on behalf of a user?

Question

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.

1. 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.
2. 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.
3. We know his IP addresses and the IPs of his staff based upon the emails, of which other false (positive) reviews were submitted.
4. 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.

Answer 1

Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else.

Paragraph (f) also says that if a person files a false infringement claim, they become

liable for any damages, including costs and attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner's authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it

but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts.

Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law.

[Addendum]

I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law.

Answer 2

In a DMCA notice, the person sending the notice must state under penalty of perjury that they are the copyright holder or are representing the copyright holder of some work. The next thing is that they need to tell you that they believe the copyright on their work has been infringed.

If they don't state that they are the copyright holder then the DMCA notice is not in the required form and you may politely inform them that they need to state under penalty of perjury of which work they are the copyright holder. If they made such a statement, then this seems to be perjury, and you might consider passing this on to the police.

You can't reply on behalf of the poster. Only they can.

Answer 3

Failure to comply with a DMCA takedown notice "shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title..." 17 USC 512

If you're not infringing; if nobody is infringing, you can ignore a DMCA takedown request and while that would remove your ability to claim safe-harbour limited liability against this plaintiff, your ultimate defence would remain intact.

This has been mentioned as a strategy that search engines could use to "choose attractive plaintiffs". (Walker CW. Application of the DMCA safe harbor provisions to search engines. Va. JL & Tech.. 2004;9:1.)

By refusing to remove allegedly infringing material in response to a notification, a search engine may be able to provoke a copyright owner to initiate a lawsuit against it. A favorable ruling in such litigation could eliminate the fear of contributory liability for search engines, thereby making it unnecessary to follow the safe harbor procedures in the future.

If the plaintiff brings this to trial, a summary judgement in your favor may be available if the plaintiff fails to assert to the court that they are the copyright owner of the work. If they do attempt to assert copyright ownership, they would have a difficult time proving this, given your description of the facts.

I am not recommending a particular course of action for you and am only stating some of the consequences.