The Other Side to the DMCA Takedown Notice

Photographers often use the DMCA Takedown Notice procedure to battle copyright infringement on the Internet.  My article explains how to prepare the letter.  The Notice is a powerful tool especially when it may be difficult to recover damages from the infringer.

But the infringer also has heavy arsenal.  Specifically, the same provision of copyright law that allows for the takedown notice also allows the alleged infringer to file a counter notice.  After sending your takedown notice to the Internet Service Provider (ISP), the ISP will notify the alleged infringer of the notice.  The infringer then can send a counter notice to the ISP declaring that the infringer “has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled” and other requirements of Section 512 (g).

At that point, the ISP is caught in the middle.  By law, the ISP must repost the infringing material to its original location.

Unfortunately, the only option then to stop the infringement is to file a lawsuit asking the court to enter an injunction stopping the use of the copyright material. Since the infringer can easily move the use of the copyrighted material to another ISP, it’s best to include a copyright infringement claim in the lawsuit.  Such lawsuits are expensive and significant damages usually can only be recovered if your image is registered.

Fortunately, most infringers don’t take the time to file a counter notice.  But be sure to register the copyrights to your photos so that you have all of the tools necessary to fight copyright infringement.

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Carolyn E. Wright

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