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An item of mine was removed from a third-party website due to a DMCA copyright claim. I'd gone thoroughly into it and noticed serious issues with the document. Namely, contact credentials were incomplete and misleading (lack of full address), and the document was written in an absolutely abhorent English (e.g. "a item are") despite the fact that the name and surname were American/English.

This person claimed to work for a renown, non-profit company located in the US and claimed the rights to my product in their name. The thing is, he didn't send this notice from that company's email domain, but instead used other third-party email provider located in a different continet that boasts one would need a warrant from this country's court to get access to the mailbox. I tried contacting the company he represented, but no one responded.I even sent a mail to his supposedly company's mailbox, but I got an error stating it didn't exist. Even the copyright claim was easily refutable. Therefore, everything looked extremely suspicious.

I informed the file-host company about the issues withthe DMCA, but they said they can't ignore it on the basis of its legitimacy, as they're just passing the information. So I filed a counter notice, received the information that my item would be restored within 14 days. Unfotunately, 18 days my item is still disabled. I haven't received any feedback despite contacting the file-host company. I assume what happened is the guy told them in his third-world English that he's taking a legal action, but I highly doubt any action will ever be taken.

I'm not a US citizen, but I thought he'd need to present a legal document, an injunction, from the court to stop the process, but to do so, he'd have to be thoroughly checked. I'm being kept in the dark and haven't received any legal notice. Unfortunately, I can't even sue him since his personal credentials are made up or incomplete.

Am I not even entitled to receive any type of court document at this or some point in the future? How do I know he took or will take any legal action against me? What if he doesn't? Should I pressure the hosting company for more information? They haven't replied to my previous email, so maybe a need a solicitor to send them a notice and scare them a little bit? The thing is, the value of this item isn't even worth that much and the costs of legal actions would be huge I assume.

I'd appreciate any advice at this point. Thank you for your time.

Dhager
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The person submitting the DMCA takedown must state which work they believe has been infringed upon, and then they have to state under threat of perjury that they are the copyright owner or represent the copyright owner.

So if the item that has been taken down is definitely you, then the complainant must have made a mistake (identified the wrong work), which is legal, or they are guilty of perjury. That's the threat of the DMCA, to keep complainants honest.

And just for your information: If the site takes the item down because of a DMCA takedown notice, and then restores it because of a counter notice, then they are perfectly safe from any threats, even if your item were indeed infringing. So they seem to be just slow.

gnasher729
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The relevant chunk of the law is 17 USC 512(g)(2)(C) the restore clause, that in the face of a counterclaim, the provider

replace[s] the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network

You have found a basic flaw in the law. There is no requirement that the notice of action being filed correspond to an actual notice, and unlike the infringement claim and the counterclaim, there is no requirement for a perjury statement. There is no requirement that the alleged infringee provide any specific details regarding the supposed action: he just has to say that he filed an action.

You should note that the law is addressed at the provider, not the person alleging infringement or the alleged infringer. The law say "follow these rules and you won't be sued; deviate, and you might be". The provider followed the rules (we assume: we'd have to see the actual claim and counterclaim), so they are in the clear. If the initial claim was false, then they will have committed perjury, and they could get in trouble for that. You could sue the other guy, if that helps.

user6726
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  • I was afraid this could be the case. The guy can just say he's taking in to the court and just do nothing. While hosting company is pleased because it followed the DMC>Counter>Court procedure. Couldn't I demand information aboutthe number (id) of the case or the court in which it will be held? I could then hire somebody to verify this claim. If it's false I could send this piece of information back to the hosting company. The only viable information he provided was his email address. His physical address consisted of: 44d. + State name + US. – Dhager Apr 27 '18 at 21:26
  • The problem is you can make demands on the ISP which they may not even have: e.g. he may not have said any more than "I have filed suit for copyright infringement in federal court naming X, Y, Z". There is no further provision that pertains to proving that the "file an action" claim is false -- he just has to say he did, and no clause about the ISP making a reasonable judgement hat he actually did. DMCA is a pure-procedure law. – user6726 Apr 27 '18 at 22:46
  • Incidentally, if you are outside the US, he could sue you in any US district, but if you are in the US he has to sue you in the district where you reside, which reduces the search. – user6726 Apr 28 '18 at 00:26
  • Thanks for all the useful info. When I pointed out the address was incomplete and that the company's address he supposedly represents was different (It's located in Massachusetts). Claimant literally took the original address of the company and modified it and sent to the hosting company the following info: Texas and the zipcode MA 51680, which is from Massachusetts. I'm not American, but it should've been TX I believe. Not that it matters since both don't exist. Actually he just changed two digits from the address I sent to the ISP. My hands are tied. The contact credentials are fabricated. – Dhager Apr 28 '18 at 09:21
  • But if the ISP tells me that he only sent something like: "I have filed suit for copyright infringement in federal court naming X, Y, Z." I know it's 100% fake and no legal action is taking place, which means I could compile the evidence, send it to a solicitor who would then demanded action from the ISP. Claimant clearly commited perjury here by assuming fake identity and providing false and invalid credentials. There's clearly something I can do here with the ISP. Aren't they required to verify the data provided by the alleged infringee? – Dhager Apr 28 '18 at 09:48
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    The point is that the ISP is not required to verify any data, and if they deviate from the prescribed steps, they gain liability for contributory infringement. – user6726 Apr 28 '18 at 14:43
  • Remember that the ISP has no obligation to host your content, even if it's legal. They need not acquiesce to a demand for action from your solicitor. – Corrodias Dec 13 '23 at 19:05
  • If a company files a takedown notice and then claims to have taken legal action against the entity filing a counter-notice, would the latter claim be required to include evidence that the company had in fact received the counter-notice? Would the person whose work was taken down be entitled to know what contact information was used to deliver the counter-notice? – supercat Dec 13 '23 at 19:06
  • @Corrodias, I pay money to an ISP to host my content, which creates a legal obligation. DMCA says that I can't sue them (as I normally could) if they carefully follow procedure. – user6726 Dec 13 '23 at 19:09
  • @user6726 Oh, in the presence of a contract, that's another matter. I don't know anything about how the law resolves a conflict between a contract that they must host the content (if legally allowed) and that very awkwardly-written paragraph about "receiving notice". Carry on. – Corrodias Dec 13 '23 at 19:22