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Awhile ago, I linked someone to a fansite of people who read his indie fiction and he cursed me out because there were illegal copies to his work on it. He told me that he was legally bound to file DMCA's now because if he didn't, he would lose the ability to file a DMCA against anyone. Something about "If you do it for one, you have to do it for everyone".

I'm also interested in how this works overseas. If someone in Japan or Korea found an english version of one of their novels, would they also be legally bound to file DMCAs over it simply because they became aware of it?

  • You showed an author a site where people claiming to be "fans" stole his work. How exactly did you expect him to react? – Shadur Sep 1 at 10:24
  • As said, If they used "stole" his work then of course he'll file one; I believe his thing is a common saying about special treatment but a bit strange. It's common to hear "If you do it for one, you have to do it for everyone" in reference to other things but this is a new one I've heard. – Codingale Sep 1 at 11:03
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    @Shadur - I'd have hoped for gratitude, and expected anything from the vast crosssection of human behaviours. – Russell McMahon Sep 1 at 12:51
  • Are you sure he wasn’t upset because of the problem of derivative works? I.e author create character x, fan creates y, author creates y-like character, fan sues saying author stole his work? – jmoreno Sep 1 at 19:44
  • Different people have different definitions of "stole", so perhaps this "stealing" is mere reference to the work (once a hotel filed a DMCA on an escort's site because she said she'd be at the hotel Nov. 21-23)... Or snippets for discussion... Or parody such as "slash", which is enough to infuriate many, many content creators... – Harper - Reinstate Monica Sep 1 at 22:07
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If I understand correctly, you are asking whether a copyright holder's failure to submit a DMCA "takedown" notice in accordance with 17 U.S.C. § 512 prevents that copyright holder from enforcing their copyright. The answer is no, for multiple reasons.

DMCA is an optional process

First, a common misconception seems to be that the DMCA creates a mandatory process for anyone. It doesn't. The DMCA takedown process doesn't impose an obligation upon anyone: copyright holders don't have to submit DMCA takedowns, and service providers don't have to honor takedown notices. In fact, all 17 U.S.C. § 512 does is it provides a "safe harbor" for service providers who do follow the takedown procedures. In other words, with limited exceptions, DMCA says that internet service providers can't be sued for hosting content that infringes copyright unless they fail to obey a DMCA takedown first. But if the copyright holder isn't looking to sue the service provider, then filing a DMCA takedown is not a prerequisite.

Not enforcing copyright now doesn't prevent future enforcement

The broader question that you're getting at is also whether it's possible to lose copyright by failing to take enforcement actions in general, not only as authorized by the DMCA. This is a pretty common question because it turns out there's something sort of like this when it comes to trademarks, which are a different form of intellectual property. It's possible to lose trademarks for a variety of reasons: under 15 U.S.C. § 1127, trademarks are abandoned if they cease to be used or if they become genericized, for instance, so failure to enforce the trademark in one instance might cause problems enforcing it later. But copyrights and trademarks are very different, and copyrights are not abandoned in this way. It is actually fairly difficult to lose copyright protection: in countries that have adopted the Berne Convention (essentially every country), copyright exists from the moment a work is created, and though it is possible to abandon copyright, it must be done intentionally and the intent to do so "must be manifested by some overt act indicative of a purpose to surrender the rights and allow the public to copy". Hampton v. Paramount Pictures Corporation, 279 F. 2d 100 (9th Cir. 1960) (citing National Comics Publications v. Fawcett Publications, 191 F. 2d 594 (2nd Cir. 1951)).

As to your question about the rules of other jurisdictions, the Berne Convention's mandate that "enjoyment and the exercise of these [copyright] rights shall not be subject to any formality" (Article 5) would suggest that other countries also do not impose additional requirements for the full exercise of rights under copyright law, but the rules of any given jurisdiction vary and it would be impractical to discuss the steps required to enforce copyright in every jurisdiction in the world.

  • This is great, but I think it would be nice to start with a big headline like “Yes, in every country,” (or “just about every” or “every*” with a footnote about the Berne convention or whatever), since the question is predicated on a common and serious misconception. – KRyan Sep 1 at 12:05
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    Worth pointing out that this misconception likely stems from trademark infringement. In cases where you ignore your trademark and take no action, another company that successfully gathers a large enough following where others associate their product with the name more than yours could cause them to gain trademark rights as well. There are a variety of ways where ignoring misuses of your trademark can have very negative consequences. When I read this question, I took it as a misapplication of trademark to the DMCA process, especially since people frequently confuse trademark and copyright. – animuson Sep 1 at 15:37
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    I tried to google some of your claims about trademark genericization, but all I found was scans of an old xerox of a law book... – Harper - Reinstate Monica Sep 1 at 22:10
  • @Harper Which claims are you referring to? The statute directly provides for abandonment of trademark through genericization, and I don't believe I said more about it than "it can happen with trademarks but not copyrights". – L235 Sep 1 at 22:11
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    @l235 Nevermind, I was just being clever, by using some genericized trademarks... – Harper - Reinstate Monica Sep 1 at 22:16

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