Jazzy’s Quick And Dirty Guide To Surviving A DMCA Takedown

This morning I got an email from another Armitage blogger who wishes to remain anonymous telling me about a Digital Millennium Copyright Act Takedown Notice that she received from her blogging platform. I am publishing this post at her suggestion, with her full knowledge, so that you can know what steps were taken both by her platform and by her, on the off chance that it comes up again for someone. It’s better to be armed with knowledge so that you know what’s required rather than being caught unawares and freaking out. Please note that I am not a lawyer and this is not intended as legal advice. Rather, I’m breaking down the steps taken by the copyright holder to protect his or her work, the steps taken by the host platform to comply with the law, and the steps taken by the blogger to resolve the issue. All examples used below are unrelated to this morning’s incident in order to protect the anonymity of the blogger.

Who The Copyright Holder Is:

The copyright holder is the owner of the material at issue. For example, if the takedown is about a fanmade wallpaper incorporating a photograph, the copyright holder is the photographer and not the fan who made the wallpaper, no matter how the wallpaper is shared or used. The photographer has the SOLE RIGHT to authorize the photo being used and also the SOLE RIGHT to file a DMCA Takedown Notice. For simplification, I am referring to the photographer as Jane Doe and, again, all examples are hypothetical except for names of platforms, such as Tumblr. I’m trying to clarify this situation, not confuse things further.

What The Copyright Holder Does:

Photographer Jane Doe is surfing around Tumblr and comes across a fanmade wallpaper using one of her photographs. She notes that the artist the wallpaper is attributed to, Joe, is unfamiliar to her and, while she admires the artistry of the work, she knows that she didn’t authorize this use of her copyrighted photograph. She clicks on the notes attached to the post and finds a link to Joe’s DeviantART gallery, where she finds the same wallpaper. She scrolls around and finds that he is licensing HER PHOTOGRAPH through a Creative Commons License and is also offering it for sale in multiple formats. She fills out DMCA complaints on Tumblr and DeviantART, swearing UNDER PENALTY OF PERJURY that she is the copyright holder.

What The Platforms Do:

On receiving the DMCA Takedown Notice from Jane, a human from the host platform disables access to the material in her complaint. The host service provider is NOT REQUIRED by law to notify Joe before it disables access to his wallpaper. Some platforms do as a matter of courtesy and one of them sends an email to Joe explaining that they’ve received a DMCA Takedown Notice. They attach a copy of the original complaint, explain that if Joe republishes the material his account will be permanently suspended, that if they receive valid complaints from other copyright holders his account will be permanently suspended , and urge him to delete any other material that infringes on any other copyright. They also send him a link to file a formal DMCA counter-notice if he believes his wallpaper falls under a Fair Use exemption to US copyright law.

What The Fan Artist Does:

Joe at this point has two choices. He can comply and the situation is over. If he wants to truly cover his behind and work with the platform he can reply back with an apology and a list of steps he’s taken to make sure it doesn’t happen again, for example notifying other people on other platforms such as Twitter who have linked to or shared his wallpaper unaware that he was NOT THE COPYRIGHT HOLDER of the image.

Joe also has the option of filing a DMCA counter-notice. If it is a valid counter-notice the platform then alerts Jane and the ball is in her court. She can ignore it and tolerate his infringement but if she was irritated enough to file against him in the first place she probably won’t. Her option now is to take Joe to court. There is NO legal requirement for the platform to restore his work to their platform while the case is being decided.

My fellow blogger of this morning elected to comply. Then she emailed me, knowing that I opened this discussion a few days ago on blog. We need to decide, each of us, how to handle this kind of thing if we are sharing media of any type. If you have dealt with and survived a takedown notice, or you have any concerns, you’re welcome to comment. One warning: IF YOU ATTACK ANYONE ELSE I WILL EDIT YOUR COMMENT INTO A VERSE FROM EDGAR ALLAN POE. It’s Halloween, after all. Comments are open.

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38 Comments (+add yours?)

  1. Servetus
    Oct 26, 2014 @ 15:03:05

    Reblogged this on Me + Richard Armitage and commented:
    Useful information for every blogger and tumblr and twitter person.

    Liked by 1 person

    Reply

  2. richardtreehouse
    Oct 26, 2014 @ 15:11:25

    Reblogged because I want to keep for reference. Thanks!

    Liked by 1 person

    Reply

  3. Perry
    Oct 26, 2014 @ 15:17:06

    Reblogged this on Armitage Agonistes and commented:
    Good info to know.

    Liked by 1 person

    Reply

  4. phylly3
    Oct 26, 2014 @ 15:47:57

    Good advice. But what about this strategy? Joe sends an apology email to Jane Doe, making clear that it was a mistake to use Jane’s artwork without her permission, he is very sorry and would it be too late to beg her pardon and ask permission now?
    Perhaps it is not just the use of the artwork that bothers the artist, but the lack of attribution to the original source and the fact that the copyright infringer might be making money from the artwork that he is not entitled to. In that case an offer to share any profits might be appropriate.

    Liked by 2 people

    Reply

    • jazzbaby1
      Oct 26, 2014 @ 16:00:09

      Oh my gosh, hey Phylly3! Look, you’re not in spam!

      I think that might be a good strategy if Joe wasn’t selling the work. Under US law if a court decides that his wallpaper is infringing Jane is entitled to ALL of the money he’s made from her photograph and if he had the nerve to license it in any way she might not be in the mood to compromise with him.

      Thanks for commenting, Phylly!

      Like

      Reply

    • RAFrenzy
      Oct 26, 2014 @ 19:55:34

      Phylly, I would never give someone this advice, but I will say this strategy can work wonders. One of my best contacts in the fandom was precipitated by a takedown notice they sent me. I responded with a personal note and lo and behold they replied. Thereby a relationship was formed. Net: nothing beats personal contact. Again, that is not advice but just my viewpoint.

      Liked by 1 person

      Reply

      • jazzbaby1
        Oct 26, 2014 @ 20:00:40

        I’m glad that worked out for you, Frenz. In some cases it definitely does but if you’re dealing with Warner Brothers, for example, that might be less likely to work. Thanks for commenting!

        Like

      • RAFrenzy
        Oct 26, 2014 @ 20:47:11

        Believe it or not, you can even talk to WB reasonably. But I hear what you’re saying and think it’s a good rule of thumb not to get on the bad side of a corporation with a helluva legal team.

        Liked by 1 person

      • jazzbaby1
        Oct 26, 2014 @ 20:54:09

        Oh, absolutely you can. You have to be willing to take responsibility for yourself, though. If you’re combative about having the right to license a photograph they own they’re much less likely to consider you reasonable.

        Like

      • RAFrenzy
        Oct 26, 2014 @ 20:56:26

        Which makes total sense. : D

        Liked by 1 person

  5. guylty
    Oct 26, 2014 @ 15:56:41

    Thanks for that Jazz!!! This is my first ever insight into the proceedings, and it is interesting to know how the procedure actually works. I have never been involved in a takedown notice (neither as complainant nor as defendant), so I can’t share any insights. But to me it looks as if the anonymous blogger chose the right path. I hope he/she will otherwise escape unscathed and continue to enjoy the fandom experience and creating/enjoying fan art.

    Liked by 2 people

    Reply

    • jazzbaby1
      Oct 26, 2014 @ 16:04:59

      Thanks, guylty. I think when we’re discussing this kind of thing hypothetically we run the risk of thinking that it’s entirely academic but it can have real world consequences.

      Like

      Reply

      • guylty
        Oct 26, 2014 @ 16:08:25

        Oh, I totally believe that it does have RL consequences. As I have said before – I would probably fight like a lioness of I found someone making money with my creative work without my permission… So I am pretty much on the side of the copyright holder here.

        Liked by 2 people

  6. Servetus
    Oct 26, 2014 @ 16:06:10

    The other thing is “moral hazard” — do we want to encourage people only to behave correctly when they’re under threat of legal sanction? It’s not really a strategy — we want people to obey the law in the first place (or at least, to follow guidelines based on a pragmatic assessment of what is likely to be enforced.)

    What you propose might be a remedy, if the rightsholder involved is a single entity whom one could locate and communicate with. If the rightsholder is a large corporate entity, however? Bets are off. Those folks have deep pockets.

    Liked by 1 person

    Reply

    • jazzbaby1
      Oct 26, 2014 @ 16:14:52

      Oh, heck yeah. And with really big entities you could also be talking about trademark violations and in those cases they have less of a choice in taking legal action because if they don’t defend their trademark they can lose the right to it’s exclusive use.

      Like

      Reply

  7. jollytr
    Oct 26, 2014 @ 16:06:49

    Reblogged this on jollytr62.

    Like

    Reply

  8. Antigone
    Oct 26, 2014 @ 17:12:40

    Thanks for this! As a new Armitage blogger this is profoundly helpful! Hope I never need to use it tho…

    Liked by 2 people

    Reply

  9. jollytr
    Oct 26, 2014 @ 17:26:46

    I don’t think most people understand that the filing a DMCA claim is a serious legal undertaking. It is not to be taken lightly and can land the filer in court if their claim is frivolous. It was interesting to learn that WordPress has successfully defended bloggers against such DMCA takedown claims (thank you Jazz for pointing me to those articles).

    I wonder what criteria the platform uses in their assessment of petition for takedown. There is reference on the form to both the original work and the allegedly infringing work so one would suppose that the platform staff would review both. Do they make any sort of judgement or simply proceed with the taken down if there is even a hint of the original work in the new work? I am guessing that, where there is any amount of a copyrighted work incorporated in a new work, they use little discretion in determining whether to proceed with the takedown, and simply do it. Determining Fair Use is the province of the courts, not social media employees.

    The process seems to be “guilty until proven innocent”. It sounds like within social media, it’s only if you go to court that your claim of Fair Use will be heard and recognized. Otherwise, you’re treated as if you have indeed infringed copyright – your work is taken down and they don’t have to put it back up while you are in dispute.

    This is a messy world of misinformed, frustrated people who could file a good faith request for take-down and find themselves in hot water for probably more reasons than I know of:
    1. their own inappropriate use of an image in the art they have initiated infringement complaint about (as you mentioned in your Snaffling post); or
    2. because they’ve initiated a frivolous claim.

    It’s clear that accusations of infringement are serious business and need to be approached with great care by both the ‘plaintiff’ and the ‘accused’.

    These copyright issues affect us all and yet contemplating all of the research to understand how it all works can be overwhelming. THANK YOU for making this subject much clearer and easy to digest.

    Liked by 2 people

    Reply

    • jazzbaby1
      Oct 26, 2014 @ 19:56:45

      You’re more than welcome, jollytr. To clarify on your question, the platform doesn’t assess Fair Use at all. They’re not in a position to and are required by law to disable access whether or not the wallpaper would subsequently be found to be Fair Use by a court. The burden for the initial assessment is with the copyright holder who files the DMCA.

      Liked by 1 person

      Reply

    • RAFrenzy
      Oct 26, 2014 @ 20:03:45

      Automattic (the business side of WordPress.com) has made it plain they do not adopt a “guilty until proven innocent” policy with respect to DMCA claims:

      http://jolt.law.harvard.edu/digest/copyright/wordpress-sues-dmca-takedown-abusers

      It’s my experience with my own site and with being admin on quite a few others (including a few fan sites), that WP.com really does try to establish that the person or entity filing has a valid claim before WP.com issues a take down.

      Liked by 2 people

      Reply

      • jazzbaby1
        Oct 26, 2014 @ 20:11:16

        Thank you for commenting with regard to WordPress. I’m not arguing with you here but I want to make plain that you’re talking just about WP and not policies made by DeviantART, Tumblr, Facebook, etc. Part of the continuing confusion in this drama is that people are conflating the Terms of Service for one platform as an industry-wide standard or what is required by law. Again, though, thank you for commenting, it’s good to see you!

        Like

    • RAFrenzy
      Oct 26, 2014 @ 20:15:21

      I hit sent too quickly.

      The Fair Use standard is not as clear as some try to make it, and I don’t blame WP.com and other sites for staying away from trying to be arbiters of that standard if there is no request for them to do it. however, most of the major platforms do give recourse with a counter-claim, and if the argument is decent, it’s possible to have the initial claim rescinded. I could have done that with the notice I received, and I thought about doing just that, but I also looked at the situation as an opportunity to speak to the owner of the content.

      By the way I also received a take down notice on some Youtube content, then filed a counter-claim and won. I ended up moving that video to my own WP.com site, which I knew was an option if I lost, but it was good to tangle, as it were, with YT and see what happened.

      This also happened to bccmee and quite a few other fan videographers. To my knowledge only two have filed counter-claims with bccmee being one of those, and she won the claim and the video went back up. Just sayin’ so some of you know that receiving a take down notice is not always the end of your content.

      Liked by 1 person

      Reply

      • jazzbaby1
        Oct 26, 2014 @ 20:27:06

        BccMee lost at least one claim that I know of, too.

        Like

      • Servetus
        Oct 26, 2014 @ 20:31:45

        I think one key to winning a counter-claim, frankly, is not doing stuff that by a common sense standard violates fair use in whatever country the site is located. Bcc told me that she *always* filed the counter-claim but did not always win.

        Perhaps I am simply misunderstanding, now, but the article linked states that WP did delete the content. They complied with the law because they must; they’re just using the law itself to indicate that they will use its provisions to signal that they’re not friendly to fraudulent claims.

        “The DMCA requires web hosts to take down content in response to a notice of copyright infringement or face possible liability. […] The second case involves Retraction Watch, a popular blog that tracks erroneous scientific papers. When an Indian website copied Retraction Watch’s articles about a cancer researcher and then filed a takedown notice, Automattic was forced to comply, even though the Indian website’s copyright claim was fraudulent. [paragraph Automattic is using section 512(f) of the DMCA, which allows the injured copyright owner, authorized licensee, or service provider to collect damages from those who fraudulently file takedown notices.”

        I think it’s fair to say Automattic wants to increase the pain to fraudulent filers.

        Like

    • RAFrenzy
      Oct 26, 2014 @ 20:16:35

      I can’t seem to type this evening. I meant “hit send.” I’m afraid to look further at my post for fear it’s riddled with typos. Hopefully, y’all understand what I’m saying.

      Liked by 1 person

      Reply

      • jollytr
        Oct 26, 2014 @ 21:04:14

        While I’m very sorry you’ve had to deal with this sort of thing, I’m also very interested and appreciative of your first hand experience. Gee, nothing like taking advantage of your pain, eh?! THANK YOU for sharing your insights and experiences.

        Like

      • RAFrenzy
        Oct 26, 2014 @ 21:25:39

        You’re welcome. I just hope it’s absolutely clear that I am not giving anyone advice but merely sharing.

        Liked by 2 people

  10. zeesmuse
    Oct 26, 2014 @ 18:03:05

    Reblogged this on zee's muse and commented:
    For reference folks

    Liked by 1 person

    Reply

  11. zan
    Oct 26, 2014 @ 18:46:09

    Reblogged this on Well, There You Go … and commented:
    Terrific reference material. Because knowing is half the battle …

    Liked by 1 person

    Reply

  12. RAFrenzy
    Oct 26, 2014 @ 20:24:50

    JB, I think it’s good to clarify. As for tumblr, since it was acquired by Yahoo and becoming more prominent in the last couple of years, I’ve expected things to get tougher over there, i.e., it’s wild west days are coming to an end. Regarding Deviant Art I cannot speak to it at all. I have an account and look around over there, but I do not keep up with how they handle this issue. With respect to Facebook, who the hell knows? I (and no one else outside the inner sanctum) never know what they’re going to do from week to week. I have mentioned my Facebook hate? ‘nough said about that one. : D

    Liked by 1 person

    Reply

    • jazzbaby1
      Oct 26, 2014 @ 20:32:03

      LOL, you and your FB hate. I totally get that, though, and I appreciate your acknowledgement that you can only speak about one platform and not all of them. One of my reasons for coming to WP is that they will throw down for their bloggers in certain cases. Like I said, some of the confusion has been from people cherry picking this thing from this law, this thing from the TOS on this site, and this law from the EU and while one of those things might apply they don’t all apply.

      Liked by 2 people

      Reply

  13. Gratiana Lovelace
    Oct 26, 2014 @ 22:44:10

    Food for thought, very informative. Thanks! I bookmarked your post in three places. Ha!

    Liked by 1 person

    Reply

  14. Hariclea
    Oct 26, 2014 @ 23:08:51

    Reblogged this on Opera is Magic and commented:
    great info, thanks very much for spelling it out clearly

    Liked by 1 person

    Reply

  15. Christine Na'imah
    Oct 27, 2014 @ 14:30:34

    Fantastic article!!

    Liked by 2 people

    Reply

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