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I have sent a DMCA notice against a party which is infringing on some material of mine. They have now sent a DMCA counter-notice, and the site replied with the following

We will replace the removed material or cease disabling access to it within ten (10) business days provided we do not receive notice from you that an action has been filed seeking a court order to restrain this user from engaging in infringing activity relating to the material

How do I proceed? Can I take the matter to a court especially that neither me or the infringer is US-based? Can I take the matter to court without going through an attorney/lawyer?

  • I will double check later but it seems like they are waiting for a court order which states they can't use the copyrighted material. – Terry Sep 15 '15 at 11:52
  • Is this a big site or how, like YouTube, or a smaller share site? What type of material are they infringing? – gracey209 Sep 15 '15 at 12:26
  • Is this a Notice as filed in a court, or did you just tell them to take down the content? – jimsug Sep 15 '15 at 13:42
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When you file a DMCA notice, what it really means is that you are saying: "Dear website, there is some copyright infringement going on against my works, and I'm willing to take someone to court. You have the choice of removing these materials, which means I cannot sue you, or you can leave copyright infringement on your website and you will be part of the court case".

When the purported infringer gives a counter notice, what it really means is that they are saying: "Bring it on. Take my to court. I'm not afraid of you. By the way, dear website, because you followed the DMCA procedures and I gave you the counter notice, you can't be sued for copyright infringement if you restore these materials, even if they are infringing on copyright. "

And the website tells you politely "we played by the rules of the DMCA. So now it's between you and the purported infringer, you can't sue us for showing the contents. " So yes, if you don't take the copyright infringer to court, nothing will happen.

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Under the DMCA, counter-notices are not often seen. They give people who are not infringing or are only engaging in fair use a way of saying "prove it or I won't stop doing it".

So, typically a copyright holder will swear out an affidavit under the penalty of perjury that they are the copyright holder and that another work, a site, or a search engine is infringing (or allowing the infringement) of their copyright(s).

Upon receipt of your original notice, the host or presenter of the content has to disable access to the work immediately to avoid liability.

A counter-notice, however, works as a responsive notice saying they are not infringing and that your notice to stop is bogus. While this is important for due process, it also puts copyright holders of very limited materials (who may not have even registered or have much money) at a disadvantage to bigger sites with a lot more money than the holder of a single copyright. It can be abused in that, now, your only recourse is to file a lawsuit seeking a preliminary injunction right away, until the final hearing can be had, where you'd seek a permanent injunction.

So, they will take your work down (or have already) but if you don't file right away, it will go back up when those 10 days expire.

You can go to court yourself, but it is no more advised in this instance than any other (barring small claims which is made for litigants to utilize without counsel). If your copyright has any monetary value, you really need to hire an experienced IP attorney. If it's just something that has value to you, but you really want it down and cannot afford it, you can go yourself and attempt to prove it's yours. If you do this you will need to be prepared with convincing evidence.

When you get to court, you will have the burden of establishing that it is your original work. You must prove that the claims in the DMCA counter-notice are untrue, because they are now claiming that the work is not an infringement: either that they hold the rights to it or their use of it is legal (fair use, licensed, etc.) and that the original notice was filed in error. If you can do that, you will seek damages for the infringement and the abuse of the counter-notice process.

  • From the question, neither party would be based in the US - whether the servers hosting the content are in the US hasn't been established, but does a US court have jurisdiction? – jimsug Sep 15 '15 at 12:40
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    Oh! Why the DMCA notice then? I assumed at least the server was in the United States, due to the fact that a DMCA notice, and response, were filed. If neither party, nor the server, is in the United States the DMCA does not apply. DMCA is a US law. It doesn't apply in other countries except if the server is here. That said, if the notice was accidentally filed in the wrong country, or citing the wrong country's laws, nearly every country has their own copyright infringement laws and that procedure would need to be filed. – gracey209 Sep 15 '15 at 13:34
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    It's seems extremely odd that the "offending" company would've filed a response if they do not have any connection to the US (not to mention that the notice was filed under US law?!?) when you file that notice, there are other documents needed to a company including an affidavit concerning how are US applies. – gracey209 Sep 15 '15 at 13:39
  • I suspect that notice and counter-notice is not being used in the legal sense, but in the lay sense of "being told something" and then "being told something in response". – jimsug Sep 15 '15 at 13:41
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    That could be the case, although it did specifically say DMCA notice, and the counter notice which are the actual documents they get filed. Otherwise, I would suspect it would be called something different like a cease-and-desist or something to that effect. The DMC notice is statutory nature – gracey209 Sep 15 '15 at 13:44

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