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David S.Touretzky. What to Do If You're Wrongly Accused of a Copyright Violation

David S.Touretzky. What to Do If You're Wrongly Accused of a Copyright Violation

--------------------------------------------------------------- By David S. Touretzky April 24, 2001 Origin: TechTV Zones > The Screen Savers > Show & Tell http://www.techtv.com/screensavers/showtell/story/0,23008,3323985,00.html --------------------------------------------------------------- If you've been falsely accused of breaking copyright law, you can defend yourself. One of the favorite tools of cults and corporations seeking to take embarrassing information off the Internet is to falsely claim copyright violation. The Digital Millenium Copyright Act, enacted in 1998, set out a notification procedure that can be used to request that an ISP remove allegedly infringing material from a webpage. However, there is a defense against this attack: It's called a "counter-notification letter." Most people don't know how to write such a letter, which is why I've put together this helpful example.

Do-It-Yourself Counter-Notification Letter

--------------------------------------------------------------- Origin: http://www.techtv.com/screensavers/showtell/jump/0,23009,3323990,00.html ---------------------------------------------------------------

Dear Internet Service Provider:

This letter is written in response to your notification to me of a complaint received about my webpage(s). The pages in question are:

(insert list of URLs here).

The complainant's claim of copyright violation should be rejected because (please see all checked items):

  • 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 and 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.

  • My use of the material is legally protected because it falls within the "fair use" provision of the copyright regulations, as defined in 17 USC 107. If the complainant disagrees that this is fair use, he or she is free to take up the matter with me directly, in the courts. You, the ISP, are under no obligation to settle this dispute, or to take any action to restrict my speech at the behest of this complainant. Furthermore, siding with the complainant in a manner that interferes with my lawful use of your facilities could constitute breach of contract on your part.

  • The complaint does not follow the prescribed form for notification of an alleged copyright violation as set forth in the Digital Millennium Copyright Act, 17 USC 512(c)(3).

    Specifically, the complainant has failed to:

    • 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 website 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:

      (insert your name, address and phone number here).

    • 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: ________________________________.

    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.

David S. Touretzky is a principal scientist in the Computer Science Department and the Center for the Neural Basis of Cognition at Carnegie Mellon University.

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