DMCA – After the counternotice

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Sometimes throwing down the gauntlet does more harm than good

Once the counter notice is sent things get tricky – many customers think that, having sent the counter notice, the materials can be returned to the website immediately, but that’s not true. The materials must remain offline for ten days after receipt of a valid counter notice, whether they are infringing or not. This provision is definitely favorable to copyright holders, and annoying to those who have to work around the removal for that ten day period. That waiting period can be particularly impactful when the content is timely, since that ten day window can be just enough to ensure that the content is irrelevant by the time it can be returned to the website. Not surprisingly, we see a lot of questionable DMCA notices during tight political races.

Even more important to remember, if you’re the one sending the counter notice, is that you are essentially throwing down the gauntlet and daring the other party to sue you, since that’s the only way to prevent the return of the materials to the website. Before sending that counter notice, you might want to consider long and hard whether (1) the other party is likely to sue and (2) whether you can afford to defend yourself (and deal with months or even years of legal aggravation) just so that you can use that photo of a kitten cuddling with a hamster on your blog. All kidding aside, lawsuits are painful and expensive, and potential damages for copyright cases can be astronomical, so sometimes it’s better to fold even if you are in the right.

Having received the valid counter notice, the hosting provider will forward it back to the sender of the original notice, which starts the clock ticking on the ten day waiting period. At that point the copyright holder has to either sue or accept that the materials will be put back online. While the law tends to be on the side of a valid copyright holder, the same caveats as above apply – lawsuits are an expensive and messy way to resolve a dispute, and collecting on a large judgment from a blogger with an audience of his mother and three of his best acquaintances may be more trouble than it’s worth. Just today I received a withdrawal of a counter notice against a very large company, which strongly suggests that, rather than sue a small website operator, the company reached out and came to an amicable resolution of the copyright dispute.

That being said, sometimes a lawsuit is the only way to ensure the continued removal of the material. Once the lawsuit is filed, the provider of the notice must provide proof of the lawsuit to the web host, who will forward it to the customer. At that point the web host’s job is done, at least until the lawsuit is complete months or years down the line.