Ask HN: How to deal with bullshit DMCA threat ?

I'm going to take a different tact on this comment. You're European, and I think you may have an overly inflated concept of what a DMCA notice is, hopefully this will help.

The DMCA, or digital Millennium copyright Act, was a poorly written overhaul of US copyright law. It included some smart things, like "safe harbor" provisions for companies that simply provide a place where users can share content. These companies aren't actually copyright infringers under the DMCA, but in exchange for not being liable for user content, they have to comply in a timely manner with a complaint about copyright infringement. The complaint is in the form of a DMCA notice, or DMCA complaint.

A DMCA notice is simply a form that someone fills out and gives to a host complaining about something being hosted that was created by a third party. I record a TV show, put it on YouTube, the owner of the TV show sends a DMCA complaint to Youtube, Youtube suspends my video.

There are no judges, administrators, or even legal professionals involved (although the parties involved may use lawyers to create and reply to DMCA complaints). There is no government office involved, no DMCA institution. You or I could go to Youtube and fill out the DMCA complaint form against a specific video.

And there in lies your problem; any jerk can MAKE a DMCA complaint, and it doesn't have to be true, there's no prof required at this point. And the way DMCA noticed work, your stuff gets pulled. That's how the rules work, they complain, the host pulls it and notifies you, then you are granted the opportunity to respond. The good news is, the was the DMCA says it's supposed to work is that if you respond that the DMCA claim is false, then the content is supposed to be put back up fairly quickly.

I had someone incorrectly make a DMCA claim against a video I had on Youtube. the video came down, I replied that it was fair use, and the video went right back up, and no one has complained since.

This guy is going to make a DMCA claim, and you'll have to simply respond that he's wrong, and your content will go back up. If he insists he's still right, then he has to sue you, and THEN he has to show prof, and since he can't, he'll never sue you.

However, if he makes a bogus DMCA claim, you can sue him. http://targetlaw.com/consequences-of-filing-a-false-dmca-tak...

Excellent summary of how the DMCA works.

If the person who makes the request notifies you in advance, what's to prevent you from replying, "Well, if you do that, I'm going to file DMCA takedown requests for all of your content." ?

Note: Just a question because the whole thing seems poorly thought out. Not actually advocating that as a solution.

Because knowingly filing a false DMCA complaint opens you to lawsuits (and putting in writing that its a reactive complaint makes it pretty easy to prove). It may also constitute perjury, which is criminal. IANAL and all that.

"knowingly filing a false DMCA complaint opens you to lawsuits"

If you're under US jurisdiction.

I've been in a similar situation to the original poster, except in my case the person accusing me followed through with the lawsuit.

What I quickly learned was that knowing I was right (and having evidence to back me up) was one thing, but that proving that in court is a whole other matter. Evidence only matters at trial and litigating can cost tens of thousands of dollars. My lawyer said we could try and recover legal costs but of course even if you win those back there is no guarantee you can collect.

As far as I'm aware it's only large corporations with deep pockets who've ever sued over false DMCA requests. The average person doesn't have any recourse.

"Those injured by misrepresentations in DMCA takedown notices or counter-notices are entitled to bring suit and recover actual damages, as well as costs and attorney’s fees. 17 U.S.C § 512(f)"

They should implement some sort of required mediation/arbitration, all this suing back and forth is such a waste of time and money, the lawyers must love it though.

The process you're referring to (bringing suit for misrepresentation in a DMCA takedown request) is not commonly invoked. It doesn't need optimization.

It seems themeforest.net and themeforest.com are owned by an Australian company, Envato Pty Ltd. The DMCA is a US law, and luckily, it seems they're not in the US.

  $ whois themeforest.net
  Registrant Organization: Envato Pty Ltd
  Registrant Street: PO Box 21177, Little Lonsdale St
  Registrant City: Melbourne
  Registrant State/Province: Victoria
  Registrant Postal Code: VIC 8011
  Registrant Country: AU
  Registrant Phone: +61.390230074
  Registrant Phone Ext:
  Registrant Fax: +61.290183043
  Registrant Fax Ext:
  Registrant Email: domains@envato.com

Envato has a page on DMCA takedown notices, but I'm not done reading it yet. None the less, it seems they may respond to DMCA Takedown Notices.

http://support.envato.com/index.php?/Knowledgebase/Article/V...

The important thing is that filing a knowingly false DMCA Takedown Notice can have legal consequences, both civil (read: monetary) and criminal (read: prison).

http://www.aaronkellylaw.com/internet-law/consequences-of-fi...

Personally, I'd contact ThemeForest/Envato myself to let them know I'm being harassed with threats of false complaints before the other guy gets a chance to file his false complaint.

The theme hosting company is not ThemeForest/Envato Thanks for your advice.

As I said, my main concern is I won't be given the opportunity to defend myself by the DMCA institution.

The hosting for the theme marketplace is GODADDY.COM

Sorry I was a bit dense and took ThemeForest literally.

Godaddy responds as most US companies do to DMCA Takedown Notices by removing access to the cited content. By law, they must disable access if they receive a valid takedown request. It would then be up to you to file a "Counter-Notice" with them, at which point they will enable access to your content again. The Digital Media Law Project (DMLP) has some useful info on how to file a Counter-Notice:

http://www.dmlp.org/legal-guide/responding-dmca-takedown-not...

If you contact GoDaddy first, and inform them about the false threats, they might consider any takedown request they receive as knowingly false, and not disable access to your content, and/or well as give you time time to file a Counter-Notice. It won't hurt to ask them about what you should do, since at least then you'd have a pre-existing support ticket number to refer to if they do get a takedown notice.

If they have hosting services provided in they US, or by a US company, they may still be effected by DMCA notices (or at least, the hosting provider would be).

Australian law is tricky when it comes to the DMCA. There isn't specifically an Australian DMCA, but through trade-agreements there is parity between Australian copyright law and the US', which may include similar provisions.

Check what policy your themes platform has on DMCA requests. Most likely they are required to take down your theme even if the DMCA request is "bogus". You might be able to file some sort of counter arguments with your platform, but till they file a request and the platform takes it down, you should feel free to ignore it. DMCA requests are directed at the platform, not directly at you.

Thanks for your reply!

My main concern is that I won't be given the chance to defend myself by the DMCA institution.

According to the DMCA, in order to avoid potential liability, the provider is supposed to take down the content "expeditiously" upon receiving a notice and not restore it for 10 days, even if you file a counter-notification immediately. In theory, someone knowingly filing a false claim is then liable for damages, but good luck collecting on that.

In practice, though, the one time I sent a DMCA notice to a hosting company, they tried to mediate between me and the site owner rather than immediately taking anything down.

Note that as far as I know, non-US companies will usually comply with DMCA requests.

"Note that as far as I know, non-US companies will usually comply with DMCA requests."

No they won't if operating outside US jurisdiction. As a UK hoster we won't and don't recognise DMCA requests. We'll only remove content upon a receipt of a properly filed request/complaint by English lawyers (I work for a company registered in England).

There is no 'DMCA institution', further issues are handled in US courts assuming that the theme marketplace is operating under US jurisdiction. Read through the DMCA FAQ at http://www.chillingeffects.org/dmca512/faq.cgi paying attention to the notice, takedown, and counter-notice sections. Other countries may have similar mechanisms but details are likely to be quite different.

Assuming that the theme marketplace is in the United States and that your competitor does file a DMCA, you have the opportunity to file a 'counter-notice' with the service provider (theme marketplace) asserting your work is original and that you have the right to distribute it. The service provider is supposed to restore your original work in 14 days unless whoever filed the original DMCA notice brings a lawsuit in court. Whoever files a DMCA notice may be liable for damages incurred by the takedown.

- Forward the email to your theme host service. They're the "DMCA institution" you'll be dealing with.

- Ask them what steps are necessary to restore in case it does happen.

- Ask them if there's anything they would like at this time to prevent a long takedown / restoration process.

If everything is as you claim, it's possible this is a common issue with the complainant and the final straw to force them to leave the service due to a pattern of harassment.

Just flat out ignore him, until he actually takes some sort of action.

Here is what should happen.

1. The person files a DMCA notice to the theme website.

2. The theme website takes down your theme and notifies you.

3. You file a counterclaim where you assert that you are the rightful copyright owner of the theme.

4. The theme website puts your theme back up.

5. The person can choose to sue you which costs them money and is probably difficult for them to do.

One little thing I recommend you do if the DMCA notice does go through is make sure a copy of the takedown request is sent to https://www.chillingeffects.org/. This is what google, twitter, github and a lot of tech companies large and small do. The reasoning is that a lot of people use the DMCA as way to harass websites and one small bit of recourse you have is to publicly shame them.

That's not an ideal process. Shouldn't they have to provide proof to their claim? En mass it's probably not a good solution.

I'm just speaking to the way the process works in law, but it would actually be less ideal if they had to provide proof of their claim. Why? Well, if proof were required then a court would have to be involved at the outset, rather than after the notice is put back up.

Read up on the actual DMCA procedure, if the hosting company is in the US. You can file a counter-claim if they actually end up receiving a valid DMCA.

If someone who does real business on ThemeForest is threatening you with a DMCA, then they are putting themselves at a huge liability if they file a false claim against you.

Unfortunately, more than likely it's some nobody on the store, trying to get you kicked off. Nothing to lose, everything to gain? I'm sorry you've been wrongly targeted, hopefully it's a misunderstanding and not a shake down.

ThemeForest should let you make your case, then put it back up. If I understand DMCA correctly, if you asset the content is in fact yours, they can safely put it up and keep the safe harbor.

Ignore him, it's simple as that.

If he keeps bothering you and there's no merit to his claims report him as harassing you.