Granted. Most of us are not legal eagles. In fact we are kind of scared of the law… We live our entire lives free of legal notice and suddenly one day, out of nowhere, BAM, we get one…
Our fear: “Oh my goodness, I’m going to be bankrupt”.. We then quickly undo what we did and hope that maybe they will forget and follow up with anything else.”
And that is what they hope we will do….
But. That is not the law. For there are entities who both file and receive copyright violations all the time… Sony, Disney, Samsung, Apple, Google for example. Where would today’s society be without any of those?
The protections the law put in place for them… are also there for you… it is just that you don’t have 150 lawyers working for you and they do…
If you are reading this, it is probably because Pearson used Twitter or Blogspot to force you to remove some of their test questions (or links to them) which you (in shock over what they revealed) bravely determined needed to be exposed and announced, so that normal and proper societal actions could be taken to rectify the damage these items were doing to the brains of children….
So let us first explain how DMCA works and then you will see how it works backwards as well to your advantage….
Imagine you took a picture of yourself and your old college friends acting silly and perhaps a little lewd in some bar…. Now imagine you are later googling images related to your name and see on some commercial site, that same picture was used to represent something totally unrelated to you… Your first fear is that Snoopy in Human Relations will flag it to your superior. So you want it quietly gone…. and you can, under the DMCA. You file a DMCA with the ISP … In it you provide your personal details, the details of the Internet location of the offending product, and the reason why the image should be taken down (unauthorized use), and then demand it be removed. Now…. most likely you didn’t copyright or register that photo as being yours. Doing so takes considerable time and money and who does that to facebook photos? So the end, you may lose. But, because ISP’s get millions of requests per day, they take them down immediately with no concern over right and wrong. It automatically comes down. (Not sure, but at the speed at which they do, it must be done without human involvement or oversight)…
Immediately it is blocked from being seen. If the party posting it ever notices it is missing, they can file a DMCA Counter Notice. At this point, they don’t even know “who” you represent as the person requiring them to take it down… All they know you as, is that “cease and desist”person. Furthermore, if they contest it, they must blindly provide all their personal information to you in good faith, and they never get to know who filed the complaint, unless they ultimately pursue expensive legal action…
This makes it easy to manipulate. If you have an “enemy” at your job site (who maybe once asked you out and you refused, and then became your troll), and you post something that is flattering to you, he or she can file a DMCA for no reason, making it immediately go away for a minimum of 10 days and force you to counter and go through the human chain to get it restored. This flawed system is unequally balanced and currently is tilted to allow anyone to use a bullying tactic of forcing immediate take-downs of anything one doesn’t want the public to see… rightly or wrongly.
At the time of the law’s inception, this was originally deemed a good thing. At that time this immediate course of action was seen as the better alternative over allowing copyright infringement to continue indefinitely until a case was resolved in court…. So for now, the burden of proof fully rests on the defendant of a takedown request to prove he is allowed to show the item.
Ok. You got a notice. So what do you do? Well if you are Samsung, and it’s Apple who files a takedown of all mention of your newly rolled-out product, … you file a counter notice…
That same privilege extends to you against Pearson.
Copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.
Here is how you do it:
First, make a backup copy of all the material that you will have to delete. You may need this when you want to restore your web page. Then remove the material in question from your web page. You may substitute a brief note informing potential page viewers that a DMCA attack has been filed against your web page and the material has been temporarily deleted for 10 business days while you contest the DMCA charge via a “Counter Notification Letter”.
Secondly, you should file a counter takedown letter. Provided in the initial takedown will be information on how to contact the ISP, (in our case either Twitter or Blogspot.)
Here is the standard form-letter used by corporate America in their dealings with each other. Customize it to fit your situation…..
Dear Internet Service Provider:
This letter is written in response to your notification to me of a complaint received about my web page(s). The pages in question are:
(insert list of URLs here)
My response to this complaint is as follows: (include all that apply from list below)
Allegations of Copyright Violation / Digital Millennium Copyright Act
The claims of copyright violation should be rejected because:.
*The material in question is not copyrighted, or the copyright has expired. It is therefore in the public domain and may be reproduced by anyone.
*The complainant has provided no copyright registration information or other tangible evidence that the material in question is in fact copyrighted, and I have a good faith belief that it is not. The allegation of copyright violation is therefore in dispute, and at present unsupported.
*The complainant does not hold the copyright to the material in question, is not the designated representative of the copyright holder, and therefore lacks standing to assert that my use of the material is a violation of any of the owner’s rights.
*Provide a complaint in written form. [17 USC 512(c)(3)(A)]
*Include a physical or electronic signature of the complainant. [17 USC 512(c)(3)(A)(i)]
*Identify the specific copyrighted work claimed to be infringed, or, if multiple copyrighted works are covered by a single complaint, provide a representative list of such works. [17 USC 512(c)(3)(A)(ii)]
*Provide the URLs for the specific files on my web site that are alleged to be infringing. [17 USC 512(c)(3)(A)(iii)]
*Provide sufficient information to identify the complainant, including full name, mailing address, telephone number, and email address. [17 USC 512(c)(3)(A)(iv)]
*Include a written statement that the complainant has a good faith belief that use of the disputed material is not authorized by the copyright owner, its agent, or the law. [17 USC 512(c)(3)(A)(v)]
*Include a written statement that the information in the notification is accurate, and under penalty of perjury, that the complainant is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. [17 USC 512(c)(3)(A)(vi)]
This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3):
I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law.
My name, address, and telephone number are as follows:
I hereby consent to the jurisdiction of Federal District Court for the judicial district in which I reside (or, if my address is outside the United States, any judicial district in which you, the ISP, may be found).
I agree to accept service of process from the complainant.
My actual or electronic signature follows:
(electronic or actual signature here)
Having received this counter notification, you are now obligated under 17 USC 512(g)(2)(B) to advise the complainant of this notice, and to restore the material in dispute (or not take the material down in the first place), unless the complainant files suit against me within 10 days.
As soon as the service provider receives your letter…. it notifies the complainant and awaits their response.
The downside is that as part of the “Counter Notification Letter” you DO have to state that you will accept a lawsuit from the “Cease and Desist” people.
(Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party’s copyright. There are two reasons for you to consider this carefully. First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly because it might come back to haunt you. Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner’s work in a lawsuit, you should think twice about firing back a counter-notice.)
Initially this sounds frightening but it actually works in your favor. For if you were actually infringing on the original “Cease and Desist” people, they could and would have legitimately already filed a lawsuit against you without using the DMCA – thus this requirement on the “Counter Notification Letter” does not open you up to anything that you weren’t already liable for. To pursue, the original “Cease and Desist” people must file a lawsuit IN YOUR DISTRICT COURT if they want to continue. Frequently this would involve travel and legal expenses on their part. If they do not file a lawsuit (most likely outcome), your web host will restore your web page on the tenth day and you are back in business again.
If they do sue, and what you are exposing IS important for society to know… there are some other tricks you can use to keep the material up, tricks which can be loosely defined as making multiple copies and spreading them all over the Internet. Unless there is a specific instruction stopping you, there is nothing to prevent you from creating another web page that has essentially the same information. If the original page had illustrations, alter them slightly (use any photo editor, add arrows, captions, etc.) so they are “different”. Give the illustrations, and the page a new name (URL identifications), etc. Then put the new page up. If there were links to your old page, include both the link to the old page and your new page in these prior links. If nothing else, this will get your new page into Google’s indexes.
You could even open a new website using the “Free” website offers that are available from many web hosts. Just use the old material on your new free website. Be sure to include a link from somewhere in your old website to “Another example of <whatever> can be found at <your new free website>”. This link will be all that Google needs to get your new website into Google’s index. The object of course, is that you want people to be able to see what you are criticizing. The “Cease and Desist” people will eventually find out about the new website and may repeat the DMCA attack. However they will be spending more effort than you are, and will eventually be forced to give up.
Finally, bring up your problem in an online talk group – e.g. one of the Google Groups. If you are having a problem with the “Cease and Desist” people, the chances are there will be a lot of other people that aren’t happy about them either. Start a “thread” about your problem, and you will probably hear from a lot of people that would like to help. This might well included people outside the U.S. who are not subject to DMCA attacks.
As bloggers (still a new concept legally) you do have some protections. Already it is standard that short quotations will usually be fair use, not copyright infringement. The Copyright Act says that “fair use…for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This seems to cover the expose of test questions if done for the public good, but not if stolen by a competitor, which would be theft. It will eventually rise to some court to ultimately decide on who has the upper hand here, the citizens of this country, or an LLC whose headquarters are in England.
American Copyright law particularly favors “transformative” uses — commentary, either praise or criticism, is better than straight copying — but courts have said that even putting a piece of an existing work into a new context (such as a thumbnail in an image search engine) counts as “transformative…
As long as you don’t intend on making money or having people substitute your questions for the ones on the test (laughable in this case), you maintain a great chance of never being sued. Furthermore and the lawyers of Pearson know this, if in your expose`, you either mocked or parodied the questions, even criticizing them so effectively that no one wanted to by them, THAT STILL DOES NOT count for having “an effect on the market” under copyright law…..
Furthermore, you are free to report the facts and ideas embodied in another person’s article or web page or test. Copyright only protects “the expression” — the “combination of words and structure” that expresses the factual information — not the facts themselves. By changing a few words around so it is not an exact duplicate, you become even further protected and insulated against court action.
Furthermore, if you can establish harm occurred to you in any way by a takedown notice (LLC’s use this all the time) you can use the DMCA’s section 512(f) to sue back.“Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
So, see, the law IS not one sided, that is, as long as you pursue and engage in the process… Usually DMCA takedowns only involve one or two steps….
- Either the person receiving the takedown does not contest and removes the offending content as requested….
- Of, a counter notice is filed and after 10 days, the material can be reposted….
It rarely goes beyond…
For if Pearson were to file an injunction after you responded, there is nothing to stop you from opening a new website and reposting the material. If they went after that, it would cost them double, and if it happened again, it would triple the expense they must undergo. It is called putting money down a rabbit hole.
Why then are counter notices not more frequently done?
Most infringers (as well as most legitimate users) aren’t invested enough in their uploads to invest the energy to learn how to file a counter-notice or take the legal risk in filing one.
Furthermore most people who are subject to a DMCA takedown are unaware of the opportunity to file a counter-notice and many on-line hosts do a very poor job of explaining the process.
It is to this last point, that I address this post. For the more you know about take-downs, the less you have to fear….
In this case, since we are dealing with the brains of little children and not with something we popped up on our website without thinking, it would be advantageous for everyone who reads this, to send their server a letter (feel free to copy from the above- it’s fair use) and hit Pearson back with as many counter notices as they sent notices…
The law is actually on your side, not their’s; as experts in the law, they know it. They are just hoping you don’t…. and never find out……
But, there is one more reason, WHY everyone here who was ordered by Pearson to cease and desist, should file a counter notification…..
To bar repeat offenders, the DMCA law requires ISP providers to keep track of how many takedowns you get. Responding with a counter, puts you back to zero. Right now, everyone who received a takedown notice has a “strike” against them. If you file a counter, that strike goes away… If you don’t, it stays…. you only get three and then you do get kicked off the internet. In today’s world, that is serious.
So before you forget. respond to your ISP and say the take down was done in error. You had fair use of the material.