We are a sports website covering news and have found a user on YouTube copying our written content and images and pasting it in whole in their videos.

We have put in a copyright claim and got some videos taken down but they have put in a counter claim saying it is fair use and they will Sir is if we don’t remove the initial claim.

Where do we stand on this as they are using 100% of our article content including images and not even putting in any original content of their own.

  • 1
    Whether their use of your material qualifies as fair use depends on specific facts regarding their use of your material. Ultimately, it's for a court to decide, and because a court has not yet made that determination, you need to seek legal advice, which is off topic here. You can either talk to a lawyer now or wait until you hear from their lawyer, if they have one. They may well be bluffing, so I would perhaps take the latter approach. – phoog Feb 1 '18 at 22:41

First, I don't know what "Sir is" means - I assume it is a typo of "sue us" and answer on that basis. Also, you don't tell us where you are and local law differs - I will assume US law.

They can't sue you successfully - that's not how the "Online Copyright Infringement Liability Limitation Act" works.

The way it works is:

  1. You give the "online service provider" (YouTube) a notice of the claimed infringement that complies with section 512.
  2. YouTube must expeditiously remove or disable access to the allegedly infringing material and take reasonable steps to promptly notify the alleged infringer of the action.
  3. The alleged infringer then has the right to object to the takedown.
  4. If they do, you have 14 days to bring a lawsuit in the district court alleging breach of copyright:

    1. If you don't then YouTube will restore the material - essentially you have given up your claim that the material infringes your copyright,
    2. If you do then the court will decide if the material does or does not breach copyright. The alleged infringer can raise a fair use defense if they like and they may or may not be right. If you win, you get damages, if you lose, you pay damages. In practice, you and the alleged infringer may opt for an out of court settlement instead.
  • "essentially you have given up your claim that the material infringes your copyright" - Well, you only give up your claim that YouTube needs to keep the material down or face liability themselves. You can still sue the infringer for infringement; the statute of limitations is three years, not 14 days. – D M Feb 1 '18 at 23:31
  • @DM Sure, but you have given the infringer a very strong estoppel argument against any damages being imposed. "You knew I was infringing, I told you I wasn't and you did nothing!" – Dale M Feb 1 '18 at 23:48
  • To some extent, but I doubt any court would give estoppel if you sued after 30 days instead of 14, for example. – D M Feb 2 '18 at 0:02

Copying of entire articles, as you've described, doesn't fall within the fair use exception. Since you've already sent a DMCA takedown notice and received a counter notification, your next step is to file a copyright infringement lawsuit, or at least have a lawyer send a cease and desist letter threatening as much to the infringer. The counter notification should have included

(D) The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

That information tells you which district court to file suit in and the alleged infringer has waived any argument that the court lacks personal jurisdiction over them. 17 U.S.C. 512(g)(3)(D). Further, the statute allows you to seek statutory damages in lieu of actual damages. Statutory damages are set by the court and range between $750 and $30,000 per infringed work with the potential to be increased to up to $150,000 per infringed work when the infringement is found to be willful. 17 U.S.C. 504(c)(1)-(2). You may also be able to recover your costs and attorneys fees, but this is at the discretion of the judge. 17 U.S.C. 505.

There are some circumstances where the hosting site can also be liable for the infringement, but those claims are difficult to win. Ultimately, you should consult an attorney to discuss your claim in more detail. You definitely have not forfeited or waived your claim, nor does the amount of time you've waited so far create an estoppel claim.

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