DMCA Notice, what really happens?

[paulie_smith1]

<p>A site a friend visits was given a DMCA notice for someone posting a photo taken from a facebook site.<br>

The ISP shut the site down for some time as a result and it caused a number of problems for the guys who actually run the site.<br>

What is reality with a DMCA notice of use of photos without permission?<br>

Is this shutdown normal or an overreaction? Can the copyright owner also bill the site, the indivisual and/or site advertisers for posting - as they would a client in a business deal?<br>

What is the real world result of a DMCA notice and is it worth it? Is it different for an amateur compared to a professional photographer?</p>

[steve m smith]

<blockquote>

<p>Can the copyright owner also bill the site, the indivisual and/or site advertisers for posting - as they would a client in a business deal?</p>

</blockquote>

<p>They can certainly try.</p>

<blockquote>

<p>Is it different for an amateur compared to a professional photographer?</p>

</blockquote>

<p>The law will make no distinction between amateur and professional or any other real or imagined status of a person.</p>

[Matt Laur]

<p>When a service provider (like a web hosting company) recieves a DMCA notice, they need to act. If they can actually get hold of the person who maintains the offending content, they may go that route, and tell them they've got X hours to deal with it, or the site will be taken off the air. In many cases, the hosting operation is a commodity shop, running a lot of low-cost web sites in a very automated fashion, with little or no reliable, regular (or even possible) communication with the people who pay a few dollars a month to park content on their systems.<br /><br />In such a case, the quickest way to get the customer to actually communicate with them is to shut down the site or otherwise limit access to it. That, generally, immediately results in an e-mail or call from the content management person. Then they (the hosting operation) can again convey the details of the DMCA notice, and allow the site back on the air once it's all dealt with. <br /><br />Imagine, if you will, you're a hosting company that charges $9 per month. If you have <em>one</em> such notice served to you, the man hours involved in fielding that communiation, filing/tracking it properly, administering the contact and remedy with the client, etc., essentially kills off all possibility of that client being a source of profit for the entire year. More likely, the administrative costs of dealing with the mess probably mean that that $9/month customer is now a <em>loss</em> of money for the hosting company for at least a year. Every minute more that the hosting shop has to spend chasing around after the person who put up the infringing content is more money that that customer is costing (rather than making) the company.<br /><br />That's how razor-thin those margins are, in that line of work. In cases where people are spending more money per month, for a more personal relationship with the hosting operation and more actively managed services, the hosting company can afford to administer the DMCA request and its fallout in a more graceful way. <br /><br />All of that stuff is completely separate from the issues surrounding the copyright holder's options in dealing with the infringing party. Invoices, law suits, etc., are all options, but often not worth the hassle. An invoice is a cheap enough thing to generate, and might - if handled well - actually generate good will and the possibility of future business, referals, and more. That's worth a try before a DMCA notice, unless the infringing web site is clearly a fly-by-night type operation, as so many are.</p>

[daverhaas]

<p>Reality is that DMCA violation notices are just that - they are a notice that a site or sites has copyrighted work displayed on it without the copyright owner's permission - and that they are in violation of DMCA -<br>

What the website does in response to the violation letter is up to them - some refuse to acknowledge and will keep their sites up - others will respond by removing the photo / copyright work. Some will take down the entire domain.<br>

If the site owner doesn't respond and it goes to the host - the host will most often kill or disable the site until the site owner removes the content and / or can prove that they have a license for usage or own copyright on the questioned items.</p>

<p>The copyright owner can bill whomever they want -getting payment is another matter. Sometimes the offender will be willing to work out a license - other times they will refuse to pay. That's when courts get involved and things get ugly.</p>

<p>Is it worth it? - depends on how much one values their copyright and photography. </p>

<p>Amatuer vs Pro? No difference.</p>

<p>Dave</p>

 

[john_macpherson]

<p>The DMCA makes it illegal for an ISP or Google to host or link to 'stolen' material.</p>

<p>So a site owner can use an ISP to host their site. On their site is a stolen image. Mine. I contact the ISP invoking the DMCA, declaring legal ownership of the offending image, providing proof and a signed letter to that effect, and notify Google similarly, but also providing ALL Google links I can find that lead to the illegally used image.</p>

<p>The ISP then contacts the site owner displaying the image, and if that individual cannot prove that they HAVE got permission to use the image and they refuse to remove it, the ISP can take down the site.</p>

<p>Google also will contact the offender and again if they cannot prove ownership or right to use and refuse to remove it, Google will remove all links to the offending image. In cases where images are being illegally used on commercial websites it could conceivably mean that a business built up over considerable time loses its Google status pretty quickly, ie vanishes.</p>

<p>All of this does not mean you can bill the ISP for the misuse, they are usually the innocent party. The offender is the site owner or perhaps users of that site (if a forum). As Steve says you can try to pursue the original offender but that can be a pain and waste a load of time for little return. That said, sometimes it is worth it and many people have successfully done it and been rewarded by a substantial sum of money as a result.</p>

<p> </p>

[Spearhead]

<p>John, I suggest reading the Digital Copyright Millenium Act. You've made some incorrect statements in your post. For example:</p>

<p>The ISP/OSP is notified. Google is just another OSP in this case and there is no point in notifying Google unless they are the offender.</p>

<p>Links are not an issue, only hosted material.</p>

<p>The OSP/ISP can take down the material immediately, there is no prior notification required. The entity that posted the material can file a counter-claim.</p>

<p>There is no requirement for followup contact. </p>

<p>The offender is not necessarily the site owner, it's whoever posted the material. However, it can create headaches for the site owner.</p>

 

<blockquote>

<p>many people have successfully done it and been rewarded by a substantial sum of money as a result.</p>

</blockquote>

<p>Can you provide some documentation on this?</p>

 

[parv]

paulie, try these ...

 

- The Other Side to the DMCA Takedown Notice, http://www.photoattorney.com/?p=1935

 

- When the Internet Service Provider Is Immune From Copyright Infringement Liability, http://www.photoattorney.com/?p=1051

 

 

... among other search results for "dmca" at the photoattorney blog.

[john_macpherson]

<p>Jeff said</p>

<blockquote>

<p>The ISP/OSP is notified. Google is just another OSP in this case and there is no point in notifying Google unless they are the offender.<br>

Links are not an issue, only hosted material.</p>

</blockquote>

<p>When I contacted Google regarding an illegal use of my material on a site they link to, via the DMCA, they took the matter VERY seriously. They contacted the offending site within two weeks and threatened to remove ALL references on Google to the illegally used image. First hand experience, not anecodotal.<br>

Google take this issue really seriously as they also (as I understand it) fall within the scope of the DMCA.</p>

[Spearhead]

<p>Read the DMCA. Google only is affected if they host the images. There can be some interpretation as to that, whether thumbnails are an issue, etc. etc., but the DMCA does not require Google to do anything except remove content when they receive a DMCA notice and put it back up if the counter-notice proves the takedown to be wrong.</p>

[Spearhead]

<p>Also, regarding the ISP shutting down the site - this is typically provided for in the user agreement between the hosting company and the user. These agreements typically allow for the shutdown of the web site if the company feels the user has violated copyright(s). The DMCA does not have anything to do with this except that it may be the method used to inform the hosting company of the violation.</p>

[john_macpherson]

<blockquote>

<p>Jeff:<br /> The ISP/OSP is notified. Google is just another OSP in this case and there is no point in notifying Google unless they are the offender.</p>

</blockquote>

<blockquote>

<p><a href="../photodb/user?user_id=19592">Jeff Spirer</a> <a href="../member-status-icons"><img title="Moderator" src="../v3graphics/member-status-icons/mod.gif" alt="" /><img title="Subscriber" src="../v3graphics/member-status-icons/sub10plus.gif" alt="" /><img title="Frequent poster" src="../v3graphics/member-status-icons/3rolls.gif" alt="" /></a>, Jul 13, 2011; 10:53 a.m.<br /> John, I suggest reading the Digital Copyright Millenium Act.</p>

</blockquote>

<p>I have read the DMCA and Google's Terms and Conditions, very carefully and in depth prior to filing a (successful) DMCA complaint across national boundaries against a major business using my work without my permission multiple times.</p>

<p>Google feel they DO have liability and appear to take this seriously.</p>

<p>Quote from Google:</p>

<blockquote>

<p>Regardless of whether we may be liable for such infringement under local country law or United States law,<strong> our response may include</strong> removing or <strong>disabling access to material</strong> claimed to be the subject of infringing activity and/or terminating subscribers.</p>

</blockquote>

<p>Google WILL remove links to offending material. I was requested to provide ALL Google links that led to the illegally used images.</p>

<p>What was your personal experience of using the DMCA Jeff? It appears to have been quite different from mine.</p>

<p>Regarding compensation - you may have misunderstood - I did not intend to imply the DMCA is a compensation generator, its not - thats done by subsequent and separate legal action and many people have obtained compensation for breaches of (image) copyright.</p>

<p>A succsssful DMCA takedown is simply that - a way of removing the offending content, but having achieved that, I think it would be fair to say, is a useful piece of evidence to present in any subsequent legal action you might wish to pursue.</p>

<p>Lawyers can give accurate comment on the latter. I am not a lawyer.</p>

[Matt Laur]

<p>Remember that many of the low-rent web sites that heist images are frequently using Google's AdSense service to generate some revenue. Google is, effectively, part of the presentation of those web sites in that their own content (ads) are woven into those pages.<br /><br />While they want to be good corporate citizens and have the good PR that goes with de-indexing flagrant and repeat offenders from their general search output, their main focus is usually on shutting down and/or banning the site's owner from using Google's advertising system. Google doesn't want to be seen financially supporting bad actors. <br /><br />And that, by the way, is often a very effective way to get some web site operators to clean up their act. There is only one Google. If Google bans them from using AdSense, some web sites will have next to no other options for turning page views into cash. If you write to a site operator and tell them to take down your stolen images or face the music of having Google hear about their copyright infringement ... presto, they'll remove your images in a heartbeat. Because you do not want to Anger The Google if you live by advertising through their platform. That is a major Achilles Heel for a lot of small-time content thieves, and it works.</p>