Not every DMCA complaint that is sent is legitimate. Should your work be taken down due to a DMCA complaint that does not strike you as fair, we recommend determining whether you have actually violated another’s copyright, and you have not, filing a DMCA counter claim.
If your content was removed from Gigaverse due to an unfair DMCA complaint, please fill out our DMCA counter notification form.
Common Instances in Which a DMCA Complaint is Not Valid
Many people have strong grounds for keeping their work published- even if it does contain a portion of someone else’s copyrighted work. Here are the most common reasons why a DMCA complaint that was issued to you may not be valid:
- You did not, indeed, publish someone else’s copyrighted work
- You have special permissions to use the copyrighted work (e.g. you purchased rights to publish it from the copyright owner)
- Your work falls under the classification of Fair Use (details below)
What Counts as Fair Use?
Generally, we recommend avoiding Fair Use arguments, as they, to a certain extent, invite litigation, but this argument does enable one to use copyrighted work for certain purposes.
Whether content may count as Fair Use depends on several conditions outlined by the United States copyright office:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
- The nature of the copyrighted work
- The amount and substantiality of the portion used in relation to the copyrighted work as a whole
- The effect of the use upon the potential market for, or value of, the copyrighted work
If you think your work falls well within these bounds (e.g. is purely educational and not commercial, does not put the economic viability of the copyright holder’s work at risk, etc.), we recommend filing a counter notification.
How to File a DMCA Counter Notice
The easiest way to craft a DMCA counter claim involves filling out Chilling Effects’ counter notification form, though it is easy enough to create your own written notification.
The following elements should be included in your counter notice:
- A description of the content that has been taken down due to a DMCA complaint
- The URL of the content that has been taken down due to a DMCA complaint
- Your address and contact information
- The statement “I have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.”
- Any explanation as to why the content was removed by mistake (e.g. your purchased rights to publish the work, it qualifies as Fair Use, etc.)
- A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located, or if the you reside outside the United States, for any judicial district in which the service provider in question resides, and that you will accept service of process from the person who sent the original DMCA complaint (or his or her agent)
- A physical or electronic signature
What Happens When You File A DMCA Counter Claim
Once you have submitted your counter claim:
- The service provider who took down your work will forward your counter claim to the party who submitted the DMCA complaint
- That person is typically given 14 days to respond to the counter claim, letting the service provider know if he or she intends to or has already filed for legal action regarding the infringing material
- If the service provider hears back from the original copyright holder (or his or her agent) that legal action will be taken, the content will not be restored; however if no response is received (or if no legal action is taken), the content may be restored