Based on section (f), you, a piracy protection service, or other representative acting on your behalf need to be accurate in claiming an infringement. Anyone who knowingly misrepresents that a material or activity is infringing, or causes any material or activity to be removed or disabled by mistake, can be liable for any damages, including costs and attorney fees incurred by the alleged infringer, copyright owner or licensee, or service provider. An example of a mistake might be a writer making an infringement claim if the publisher has actually posted the material for sale on the site. A misrepresentation might be if an angry ex-wife wants to get back at her ex by claiming an infringement to get his book removed from sale.
Whatever the reason for the mistake or representation, the costs for damages might include responding by removing or disabling access to the material, or later replacing or ceasing to disable access to it. In other words, if a writer wrongly claims an infringement when the publisher has given permission to publish copy on a site, that would be a mistake, subjecting the writer to any damage claims. That is why it’s important to check with a publisher who may have rights to the material at the time the book was placed on the site, even though the rights were subsequently returned to the writer. Some of the sites do intermix both legally obtained and pirated material, so it is important to clarify who has the rights before proceeding beyond sending a notification to take down the material.
Section (g) refers to the situation where an alleged infringer claims there was no infringement, so the service provider is in the middle. In such a case, the service provider has no liability for acting in good faith by removing or disabling access to material subject to an infringement claim which is subsequently contested, whether or not the material is ultimately determined to be infringing or not.
Basically, upon getting a notice of infringement, the service provider is required to notify the subscriber that he or she has removed or disabled access to the material. Then, upon receiving a counter notification that the subscriber in good faith believes the material was removed or disabled due to a mistake or misidentification, the provider has to advise the person providing the original notification that there has been a counter notification. Further, the provider must advise the initial notifier that it will replace the removed material or cease disabling access to it within ten business days. Then, the provider has to do so within ten to fourteen days, unless the initial notifier sends a notice that he or she has filed an action seeking a court order to prevent the subscriber from keeping the infringing material on the provider’s system or network. To be valid, such a counter notification has to be prepared much like the original notification with a physical or electronic signature, identification of the material that has been removed or disabled, and the location where it was before being removed or disabled, along with the subscriber’s name, address, phone number, and other contact information required for service of process.
In short, there is the potential that an infringer can deny any infringement or delay the process with a counterclaim. But as long as you have correctly identified the work that is being pirated and you have the right to that work, any such response is unlikely, since it will only increase the pirate’s damages, and any legitimate service provider wants to quickly disassociate itself from a pirated work. Moreover, you can respond to a counter notification with a court order showing why the subscriber has infringed upon your work, which will add to the infringer’s costs.
More specifically, as provided for in Title 17, Chapter 512, (f) and (g) of the US Copyright Law, http://www.copyright.gov/title17/92chap5.html, the codes related to misrepresentation, mistakes, and the service provider’s responsibility in the case of a counter notification are the following:
f. MISREPRESENTATIONS. - Any person who knowingly materially misrepresents under this section —
1. that material or activity is infringing, or
2. that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
g. REPLACEMENT OF REMOVED OR DISABLED MATERIAL AND LIMITATION ON OTHER LIABILITY. —
1. NO LIABILITY FOR TAKING DOWN GENERALLY. — Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider’s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
2. EXCEPTION. — Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider —
A. takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
B. upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
C. replaces 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.
3. CONTENTS OF COUNTER NOTIFICATION. — To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
A. A physical or electronic signature of the subscriber.
B. Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
C. A statement under penalty of perjury that the subscriber has 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.
D. The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.
4. LIMITATION ON OTHER LIABILITY. — A service provider’s compliance with paragraph (2) shall not subject the service provider to liability for copyright infringement with respect to the material identified in the notice provided under subsection (c)(1)(C).
CHAPTER 18
Finding Out the Infringer’s Identity
FINDING OUT WHO IS THE infringer can sometimes be tricky when you do it yourself, although the piracy protection services have a system for identifying website owners and service providers, so they can automate the process. But if your material is only on a limited number of sites, you can still do it yourself. For example, I did this by putting in the name of one person who had claimed my copyrighted material as her own. I readily found her website through
a Google search, learned the name of her domain name provider and the ISP that hosted her site, and sent out a single takedown notice, with a copy to the provider and ISP, and that did the trick. The whole site was down within a few days, and after a year hasn’t reappeared anywhere else. However, if your book or other material is posted on numerous sites, then it can be time consuming to find them all, as well as send out notices, which is when a priracy protection service can help.
In any case, if you do it yourself, there is a way to find the pirates and the service providers. In some cases, this information will be on the site, particularly when the infringer is intermixing pirated and legally posted material offered for free. For example, this is the case with www.scribd.com, launched in 2007 by Trip Adler and Jared Friedman. The site invites people to submit their own material to share with others, and it has a section of the website where people can report copyright violations and they will take down any violating material. The company even cites the Digital Millenium Copyright Act (DMCM) (Title 17 Section #512) in its statement of legal policies and says it will terminate the accounts of those who are repeat infringers (http://support.scribd.com/entries/22981-DMCA-copyright-infringement-takedown-notification-policy). It also has arrangements with mainstream publishers like Random House and the New York Times, as well as any publisher who wants to make its material available for free or for sale.
However, with millions of books contributed by members of the community, who can upload any kind of document in dozens of formats, it is hard to police what’s on the site. As a result, individuals can easily upload copyrighted material without permission, and unless a writer is vigilant, he or she won’t discover his or her book is up there.
For example, when I did a search on my own name, I discovered 664 results, many uploaded by individuals without permission to do so. One of these, The Survival Guide to Working with Humans, was even accompanied by the news that the book had nearly five thousand readers of what was available for free. Needless to say, I wasn’t pleased at the loss of royalty income, nor was my publisher when I reported my many books on Scribd that had received this free upload treatment.
Other blatant pirate sites may be harder to track down, especially when they don’t post easily accessed contact information or are based in other countries. For example, when John Wiley and an international coalition of publishers went after the library.nu and iFile.it sites, they had to conduct a long investigation to identify the site owners. They had to take legal action against them in Ireland and Germany before the owners took down the sites (http://paidcontent.org/2012/02/15/419-book-publishers-take-down-piracy-sites).
There are various strategies for finding out both the owners and the uploaders of copyrighted material. One is to find out the owners of the IP addresses associated with the website and the uploaders. A number of companies now can do this. One example is IPTrackeronline (www.iptrackeronline.com); when I put in my own address, which was already identified when I checked out the company, the company’s site immediately reported that I was in San Francisco, California, at postal code 94121 and I was hosted by Comcast Cable. From there, one could obtain more specific details from Comcast Cable through a subpoena. Another such company is Whoer.Net (http://whoer.net/ext), which provided similar information on my location.
Likewise, you can discover the email sender’s IP address, since it is stored in an email header (http://compnetworking.about.com/od/workingwithipaddresses/qt/ipaddressemail.htm). Companies can also find out the IPs or emails of those uploading files to their servers. Then, with this information you can notify the infringing website owner or uploader and follow up with a notification or lawsuit from there.
Finally, you can find out the identification of an infringer with a subpoena to a service provider, as provided by section (h) of Title 17, Chapter 5, #512 of the Copyright Code (http://www.copyright.gov/title17/92chap5.html). Basically, the way the subpoena process works is you request that the clerk of any district court issue a subpoena to a service provider to identify an alleged infringer. You make this request by submitting a copy of the notification described in subsection (c)(a)(3), which requires a signed document in which you identify the copyright work or works claimed to be infringed, along with sufficient identification, so the provider can locate the material. Additionally, you include your contact information, such as your address, phone number, and email address. Lastly, you provide a proposed subpoena and a sworn declaration that your purpose in seeking the subpoena is to obtain the identity of the alleged infringer, and that you will only use this information to protect your rights in the copyright.
As for the content of the proposed subpoena, this should authorize and order the service provider to quickly disclose to the copyright owner or the owner’s agent the necessary information to identify the alleged infringer as described in the notification.
If this notification and proposed subpoena are in the proper form, the clerk of the court will quickly issue and sign the proposed subpoena and return it to the requester in order to deliver it to the service provider. Once the service provider receives the subpoena, he or she has to expeditiously disclose the requested information. The basic procedures for issuing and delivering the subpoena and the remedies for noncompliance are governed by the Federal Rules of Civil Procedures. You can check with the district court clerk for more specifics on what to do or with a local lawyer familiar with this process.
More specifically, as provided for in Title 17, Chapter 512, (h) of the US Copyright Law (http://www.copyright.gov/title17/92chap5.html), here are the steps for getting a subpoena to identify an infringer.
h. SUBPOENA TO IDENTIFY INFRINGER. —
1. REQUEST. — A copyright owner or a person authorized to act on the owner’s behalf may request the clerk of any United States district court to issue a subpoena to a service provider for identification of an alleged infringer in accordance with this subsection.
2. CONTENTS OF REQUEST. — The request may be made by filing with the clerk —
A. a copy of a notification described in subsection (c)(3)(A);
B. a proposed subpoena; and
C. a sworn declaration to the effect that the purpose for which the subpoena is sought is to obtain the identity of an alleged infringer and that such information will only be used for the purpose of protecting rights under this title.
3. CONTENTS OF SUBPOENA. — The subpoena shall authorize and order the service provider receiving the notification and the subpoena to expeditiously disclose to the copyright owner or person authorized by the copyright owner information sufficient to identify the alleged infringer of the material described in the notification to the extent such information is available to the service provider.
4. BASIS FOR GRANTING SUBPOENA. — If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return it to the requester for delivery to the service provider.
5. ACTIONS OF SERVICE PROVIDER RECEIVING SUBPOENA. — Upon receipt of the issued subpoena, either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A), the service provider shall expeditiously disclose to the copyright owner or person authorized by the copyright owner the information required by the subpoena, notwithstanding any other provision of law and regardless of whether the service provider responds to the notification.
6. RULES APPLICABLE TO SUBPOENA. — Unless otherwise provided by this section or by applicable rules of the court, the procedure for issuance and delivery of the subpoena, and the remedies for noncompliance with the subpoena, shall be governed to the greatest extent practicable by those provisions of the Federal Rules of Civil Procedure governing the issuance, service, and enforcement of a subpoena duces tecum.
CHAPTER 19
Stopping the Infringement with an Injunction
MOST SERVICE PROVIDERS WIL
L RESPOND to a takedown notification if they are innocently and unknowingly enabling the infringer to host or send out infringing material. This is likely because they want to remain compliant with copyright law and avoid being shut down themselves. However, in some cases, a further legal process may be necessary, getting an injunction. Such a document will order a service provider to deny access to any infringing material on an online site in their system or network. This order will also prevent a subscriber or account holder who is allegedly infringing on copyright materials from accessing the service by terminating his or her account.
These rules to obtain an injunction only apply under the following circumstances: The service provider must not be subject to monetary remedies because the transmission of the material was initiated by or at the direction of another person; the service provider is only transmitting, providing the connection, or providing storage through an automatic process; and the service provider does not make any modifications to the material going through its system, as described in section (a) referring to transitory digital network connections. The injunction is designed to stop any automated transmission that is not controlled by the service provider.
In deciding whether to grant this injunction, the court will consider various factors. These include whether the injunction will seriously burden the provider’s operations of the system or network, the degree of harm likely to be suffered by the copyright owner if the injunction isn’t granted, whether the injunction will be effective technically and not interfere with access to noninfringing material going through the system, and whether there might be a less burdensome and comparably effective way to prevent or restrain access to the infringing material.
Before the court grants the injunction, the service provider must receive a notice and be given an opportunity to appear in court. In short, you can get injunctive relief under certain circumstances from the transmission of your copyrighted material via an automated system.
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