Got a DMCA complaint. How do you verify that it's real?

[Harold Mansfield]

I finally got my first request to remove an image that I have had on a website for probably 3 years.

I don't really care about removing the image, since I can't really remember where got it from in the first place, besides, I can just get another one just like it.

My issue is, how do you determine that the organization does in fact have the legal rights?
Anyone can send an email. Where is the verification that they can even ask or that I have actually violated their copyright?

Anyone ever deal with one before?

[Steve B]

Why don't you ask for a copy of their copywrite or other proof? Put the burden on them to substaniate their claim.

Incidentally, what is a DMCA complaint?

[Harold Mansfield]

Digital Millennium Copyright Act of 1998

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet. Passed on October 12, 1998 by a unanimous vote in the United States Senate and signed into law by President Bill Clinton on October 28, 1998, the DMCA amended Title 17 of the United States Code to extend the reach of copyright, while limiting the liability of the providers of on-line services for copyright infringement by their users.

Digital Millennium Copyright Act - Wikipedia, the free encyclopedia (http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act)

[Spider]

Yes - some years ago I had a scuba diving website and set up a picture gallery - there are some wonderful underwater photos out there!

I gathered pictures I found on the web - copied them and put them up on my website, with proper credit (in ornamental picture frames like an art gallery - they looked rather good.) I e-mailed the source, telling them what I had done, asking for permission to keep their pictures displayed. Most replied giving permission. Those that didn't reply, I left up with the notice that permission had been requested, and if the originator saw this would they please contact me.

Some years later, I was notified by a photo agency with a Cease and Desist order regarding one of the photos. Because of the source, I knew this was one of the photograhers who had given me permission, but I no longer had the correspnding e-mails. In any case, it is quite possible the photographer had since sold the rights to his pictures to this agency.

I had no intention of wasting the time to resist, and removed the picture and replaced it. Took me all of 15 minutes. Had I paid to use the photo, resisting might have made sense, but, as it was, I had not paid for it, the photographer was happy for the exposure and the arrangement served both our purposes. Times change and if the photographer had sold his rights, the new owner could withdraw permission at any time.

There are enough pictures on the web and enough photographers that are happy to have their pictures displayed.

[Business Attorney]

There are two separate issues to consider: the efffect of the DMCA notice itself and the ulitmate liability for damages payable to the copyright owner for use of the image without a license.

Ultimately it is the responsibility of the person claiming ownership of the copyright to prove that he owns it. Since the copyright is automatically vested in the creator of the work when he creates it, the owner won't necessarily have a readily available "proof" that he can send.

With respect to the DMCA notice, the person claiming ownership must make statements to the general effect of "I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law" and "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed."

You can refute the DMCA by delivering to your ISP a counter notice that complies with the statute. You must be able to state, under penalty of perjury, that you believe that posting the images doe NOT infringe anyone else's rights. Note that you cannot merely state that you are not satisfied with their lack of proof. You need to have a good faith belief that you have the right to publish the image without infringing on the claimant's right.

From a liability standpoint, you don't have the right to simply use the image until the person proves ownership to your satisfaction. Your continued use once someone claims ownership of a copyright would almost certainly take you out of the category of an "innocent' infringer.

Even an innocent infringer is subject to minimum statutory damages. If you lose the mantle of an innocent infringer, the statutory damages can be staggering. For more information on companies pursuing damages for using unlicensed images, do a search on the terms "Masterfile" and "statutory damages."

The best thing to do when you get a DMCA takedown notice or a letter from from a copyright owner telling you to remove an image is to comply as quickly as possible.

[Harold Mansfield]

Thanks David. Very helpful.

[Harold Mansfield]

Interesting. They responded to my request to prove ownership and copyright by sending me a link to a page on the site where the photo is. Now don't get me wrong, I don't intend to make a federal case out of this and plan on removing the image, but, I'm sitting here thinking to myself.."showing me a page where you also have the image, does nothing to prove that the image was originally yours or that you created it."/

Looking at the way this is communicated, anyone can send a letter saying "hey, that's mine." Doesn't mean that it is.
Very interesting.

[Steve B]

At least they made an attempt. Is there any way to figure out when their page was first posted publicly?

[KristineS]

We have done this with a few people who used one of our images without permission. In our case, we knew who took the image and it was specific to our products and our website. In this particular case, it was also one of our competitors who used the image, so we pursued getting it removed quite strongly.

We have also been asked, once, to remove an image from our website. It was kind of a generic image and, if we'd wanted to, we probably could have made a fuss about whether or not the company that requested it's removal really owned the image, but it wasn't worth it. We just removed it, replaced it with something similar and moved on. It's a lot harder to determine rights to an image that isn't specific.

[Harold Mansfield]

At least they made an attempt. Is there any way to figure out when their page was first posted publicly?
You could search the page out on archive.org, but again that will only tell you that the image has been there for a while, not ownership.


It's a lot harder to determine rights to an image that isn't specific.

Yes. In this case it was a photo of a city. I mean there's 100's of images of cities out there. But I have to admit that I don't remember where I got the image from. I don't normally use images from Google images or anything like that, but who can say what I did 3 years ago when I put the site up? I think I would have gotten it from somewhere that either gave permission or purchased it, but I can't find any receipts for it.

I did take it down. Not because I believe them. Mostly because I don't have time to worry about it.

[vangogh]

Out of curiosity why don't you believe them? If they aren't the owner of the image wouldn't sending the DMCA to you mean possibly sending it to the real owner of the image from their perspective. I wouldn't think there are many people who send out DMCAs without actually being the owner of an image or at least thinking they're the legal owner.

If I were using an image which I thought might violate copyright I certainly wouldn't be pointing out to others that they were violating copyright law. I would think I'd keep it as quiet as possible. If I wasn't using the image and happened to notice it being used I wouldn't come to the conclusion that the image was in copyright violation. You'd really need a second image to even raise the question and even then you wouldn't know which image, if either, was in violation.

[Harold Mansfield]

Out of curiosity why don't you believe them?
.

I don't know, it just seemed more of a "we were using it first" kind of thing. Besides, I have seen that image before and it wasn't on their site. I'm not saying that they aren't legally the owner, I'm just saying that they didn't provide any proof.
Titling an email "DMCA Violation" doesn't make it legal document that shows proof of ownership.

I guess I was looking for more of a date that the image was taken, maybe the photographer or something of that nature. Something people should know about things they are claiming ownership to.
Even a copy of a negative with a date on it would have been nice to see.

Something more than just a simple, "Hey, that's mine!" I mean that doesn't even work when toddlers do it.

[vangogh]

I can understand then. It's more something about this particular case than not believing them in general. It is also possible they don't own the rights and are still trying to get you to remove the images. Seems odd, but certainly possible. Probably best to just remove the image like you did. It'll be quicker to find another than to deal with the DMCA.

[Harold Mansfield]

Interesting response:

We are a reputable online travel guides visited by millions of users so we are not just any 'people'. I asked respectfully that you remove the image you're infringing. Please remove the image and 404 path image

Thank you


I'm sure you guys see what I'm saying. Still nothing proving that they actually own the image.
It's like answering a question with a question. Or when your parents said, "Because I said so".

I already took the image down, but my quest was to find out if anyone can actually prove it.
Not merely just say "because we are a big company, that's how".

You would think a "big company" would have a more official and legal response, or wouldn't ignore my request for proof of ownership.
seems like a pretty straight forward request.

If you are going to send out infringement emails, seems like you would be prepared to back them up with proof.

[Spider]

If this picture is important to you for any reason, I see two possibilities - if you want to mess with them--

1. You said it was a city scene. If it was Las Vegas, replicate it. Go take your own picture from exactly the same spot and use that. If not your own city, do you know someone in that city to take the new photo for you?

2. You've taken the picture down. Write to the people again explaining that you have asked for proof of copyright ownership and they have failed to provide such proof. That you believe you have the right to use said photograph and, unless they provide sufficient proof by XXX date, you intend to re-install it.

[vangogh]

Harold I see what you mean. They aren't exactly claiming to own the image in that response.

Interesting ideas Frederick. I particularly like take a picture of the same scene from the same location and using that on the site.

[Harold Mansfield]

I do want to mess with them. Only because the person that title's themselves "Copyright Infringement" doesn't seem to have an actual working knowledge of the law. I had to go and read up on it, serving notice, responsibilities and rights and who ever I'm communicating with seems like it's just some admin with access to the "Copyright Infringement" email account.

I love it when people give me the "we're a big company" line. As if it's supposed to be intimidating, especially since they haven't done their due diligence...and assuming of course that I am just some kid in his mothers basement.
Like I said, the image has been deleted off of my servers for a couple of days now. But being that this was my first one, I'm actually disappointed. I didn't find it to be as professional or as legal as I thought it would be.
It was basically just some email from some dude.

[vangogh]

Maybe you can find who is the copyright holder of that image and assuming it's not them, send a DCMA their way. That would be fun.

[billbenson]

I can definitely see the desire to mess with them on this. It really sounds like they don't have proof either. You might try searching for text to respond to them with in a legal fashion. Be a thorn in their side!