Can an ISP respond to a DMCA counter notice on behalf of a user? We are an ISP, allowing our users to write reviews of their educational experience. Normally the users' free speech rights are protected through the Communications Decency Act, Anti-SLAPP statutes, first amendment, etc. all that. Lately though, a entity's CEO/Owner filed a DMCA request against us and a very negative review about him and his school in particular, claiming copyright ownership over it. We can claim to be an ISP and gain those restrictions, but as the review is anonymous (we have the IP though), we have no way to contact the author. Furthermore, the DMCA request is clearly false/perjurious -- for several reasons. The CEO did not write such a scathing negative review of himself in the third person and then decide to submit it to us anonymously, only to request the takedown. Clearly he is not the copyright owner. The CEO has contacted (harassed) us many times (email and letters) concerning this and other reviews, claiming defamation, slander, trademark infringement, and anything else he could think of. Clearly the review is not his. We know his IP addresses and the IPs of his staff based upon the emails, of which other false (positive) reviews were submitted. The review authors grant us copyright to use their reviews, via a disclaimer on the survey itself. We normally have a process for the review authors to remove their own reviews, which other reviewers use. We also have a process for entities to dispute the validity of reviews, which other entities use and have used successfully. But we generally reserve the right to decide if a review is valid via process, and this DMCA takedown is putting us into the awkward position of forcing us to choose between being an "ISP" or a "content author/submitter". If we choose not to play the ISP part in responding, then it seems that we open ourselves up to suit as a defamatory content author. Basically, can we preserve our DMCA- ISP "immunity" and still respond on behalf of the review author? Edit: I guess basically I am asking a sidestep question. What do we do when WE have the information that demonstrates that the content is non-infringing, and that the DMCA filer is plainly lying? Apart from signing an affidavit (and releasing his/her identity), the original author has no way to prove that he/she is the original author either. And it is really beside the point, since the entity is trying to get negative reviews removed, not protect a copyright of something they own. I mean, it is clear abuse of the system. Edit 2: Though my question is pointedly what I am dealing with, perhaps it should be revised to a more simple question. For instance, what do you do if you are an ISP who receives a DMCA for content YOU own, and YOU produced, and YOU exclusively hold the copyright for. Do you have to take down your own content until you send a counter notice, and record the counternotice to yourself? So upstream ISPs have forwarded the DMCA to you to handle (because you own all of the servers and power and colocation facility). There's this built-in assumption in the DMCA which is that the one filing the takedown is actually the copyright holder, and all they have to do is sign a BS lying affidavit, certifying that they believe it to be theirs, which carries very little consequence, and then at that point the onus is upon everyone else to either show they are not involved, or give up the personal information of the owner to a potentially litigiously malicious party. For instance, the information that the DMCA counter notice demands, would otherwise not be provided without subpoena.
Counter notices are described in 17 USC 512(g)(3). It starts with the requirement for "A physical or electronic signature of the subscriber" (and a statement under penalty of perjury...). Supposing that you can't get anywhere with finding the contributor even via a subpoena, then you're stopped there: you can't swear on behalf of someone else. Paragraph (f) also says that if a person files a false infringement claim, they become 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 but it's not immediately obvious that you would suffer damage by taking the material down (not immediately obvious doesn't mean obviously not true). A case could be made, but it's risky. In Online Policy Group v. Diebold, Diebold was hit with substantial damages basically for having made up a theory that certain email discussion was infringing when it was clearly fair use. If a person actually lies about being the copyright owner, that would probably be viewed even more dimly by the courts. Your 4th argument gives you no traction: if an infringer posts infringing material and transfers copyright on the web page, but they don't hold copyright, then that transfer mean nothing. As for the other arguments, your attorney will have to suggest an advisable course of action. S/he might advise that your evidence is so strong that you should just ignore the takedown; or that you should take the content down and then sue for damages; or take the content down and lobby your congressman for a change in the law. [Addendum] I will reiterate my recommendation to get a lawyer. I believe that under the law, the risk to you would be the situation where the person prevails in an infringement suit against you. Outside of the "mere conduit" safe harbor, you have to participate in the notice and takedown scheme in order to "stay safe" (also you have to do so quickly). You have identified a potentially huge flaw in the system. Theoretically, criminal charges of perjury and paragraph (f) damages would be enough to deter ordinary wrong-doers, provided that you can really prove that someone else is the copyright holder. But the cost of litigation is not zero and the chances of winning are not 100%. The law does assume that all parties tell the truth, indeed the law requires a "penalty of perjury" statement. Since counter-notice is also part of the legal dance, I would conclude that you do have to write yourself a counter-notice. Then if there is a suit, you have satisfied the requirements of the law.
If you own the copyright (because you wrote the book), you can do whatever you want with it. If someone else has the copyright, you have to get their permission to do what you propose. That could be the author, the author's estate, or some other party. It then depends on what the interest of the rights-holder is: they could say "No way!", "Sure, for a payment of $100,000", "At $1 per copy, here is how you must keep track of copies", "Okay, as long as you include this notice that prevents further re-distribution" or "Huh, I never thought of that. Sure, I grant you complete license to do whatever you want". A publisher is relevant only when the publisher requires a transfer of copyright to the publishing company, or if the rights-holder has granted them a certain type of license (e.g. an exclusive license). If the author has granted someone else an exclusive perpetual right to distribute, then they cannot also grant you a license to distribute for free. That is really the author's problem, though, since the publisher doesn't hold the copyright so can't sue you, instead the publisher would sue the author for breach of contract.
Any google review would be hearsay. That means, it would be proof that someone posted a review, and what was written in the review, but it wouldn't be proof that any facts claimed in the review were true. As it is proof of posting, anyone who feels slandered could sue for slander and be successful (depending on circumstances). But trying to claim that the contents of a review is a true fact will fail. You can of course try to contact the person writing a review, and they might be willing to appear in court as a witness. That would make it a statement by a witness which would be taken seriously, and not just hearsay. Since lying in a court as a witness is a serious matter, someone posting a false review will very likely not be willing to appear in court for you.
Yes, a licensee of Sketchfab is only required to cooperate with this audit process because it was agreed to in a contract. Copyright law does not (in the US, or anywhere else that I know of) give a content creator such a right to demand proof that something is being used in accord with a license. If a content creator or copyright holder thinks that some content is being used without permission, or is an unauthorized derivative work, the holder has only a few possible courses of action. The holder can send a cease and desist letter. This has no legal force, but puts the alleged infringer on notice, makes further infringement clearly &quot;knowing&quot;, and may well cause an infringer to stop infringing for fear of an expensive suit. The holder can send a takedown notice if the content is online in a venue that accepts such notices. But there is not a legal obligation to honor such a notice, and a counter-notice may lead to the content being put back up. Finally the holder may sue for copyright infringement. This has significant upfront costs, and requires significant time from the holder or the holder's business. The holder may therefore be unwilling to bring suit unless significant recovery seems likely. Once suit is brought, the holder will have discovery rights to demand answers to relevant questions from the alleged infringer, including the source of the content in question.
Yes So far so good. This is a copyright violation but it is probably fair use - certainly there is case law permitting a copy of a backup digital asset to be made so I don’t see why a similar argument wouldn’t work with backing up a physical book. Clear copyright violation. Alice can rent out the original under the first sale doctrine but the ‘backup’ is not so protected. It’s not fair use because it’s use is commercial, the work is a type of work the author expects to profit from, the entire work has been copied and the use is deleterious to the market i.e. the renters are less likely to buy an original - it falls foul of all four factors of the fair use test.
On what grounds would you sue? Contract Well, I think that you would struggle to find the necessary elements (see What is a contract and what is required for them to be valid?) In particular, you would struggle to prove that there was intention to create legal relations on their part and possibly on yours. Are you able to identify in your "back &amp; forth" a clear, unequivocal offer and acceptance? Without knowing the details of the "back &amp; forth": I was hoping that someone at $organization might be willing to write an article explaining what you do, the history of the organization and how it works appears on the face of it to be a request for a gift; not an offer to treat. Promissory Estoppel If you don't have a contract then it is possible (IMO unlikely) that they induced you by your actions to commit resources (your time in writing) in anticipation of a reward (them publishing what you wrote). To be estopped they would have to have known that you were writing the article in the expectation that it would have your organisation's name in it, that they did not intend for that to happen and that they allowed you to invest those resources notwithstanding. If you can prove all of that then you can require them to do what they promised. The big difficulty I see in this is did you tell them that a) you were writing the article, b) it would have your name in it and c) you expected it to be published in that form. Copyright If they publish the work or a derivative work without your permission you can sue for breach of copyright. As it stands, they probably have an implied licence to publish and you would need to explicitly revoke that. Options There are two reasons to go to court: Money Principle If you are going to court for money then this is at best a risky investment and at worst a gamble: balance your risk and reward carefully. If you are going to court for a principle then I simultaneously admire your principles and think you're an idiot. Make a deal Explain that the reason that you wrote the article was a) to support their fine publication and the fantastic work it does (even if you don't) and b) to garner good publicity for your organisation. You understand and admire their strong editorial stance (especially if you don't) but the article involved a considerable amount of work and could they see their way clear to give you a significant discount (~80%) on a full page ad facing the article.
The first thing that has to be done (in court, or via lawyer-to-lawyer communication) is that The Company has to prove that they own the copyright. If they accomplish that, you can defend yourself by providing proof of a license to download and redistribute. From what I can tell, you cannot directly prove that, since the rights-holder did not give you the license. The issue is that a third party cannot impose a license on a work simply by putting it out there with a file that claims to be a license from the artist. So this brings in the Free Music Archive: they presumably have some evidence that the rights holder did indeed grant the alleged license, and may be able to provide proof. Your argument may be credible, in the sense that you had a good-faith belief that the item was so licensed, and the website would provide a basis for concluding that that belief is reasonable. If the work was licensed, then the some rights holder would know that, but not necessarily the current one. Assume the artist made a recording, transferred the rights to Company A, who later sold the rights to Company B who is now coming after you. Artist may have licensed it when it was his, and forgot to tell A. A may have licensed it when they sold the license to B. Artist may have improperly licensed it after he sold the work to A (under the "I wrote it, I have the right to do whatever I want" non-legal theory). A might have improperly licensed the work after selling the right to B (maybe by mistakenly including it in a package deal, i.e. via bookkeeping error, rather than ignorance of the law). Or, they may simply have forgotten. If this is a DMCA takedown notice, the notice-giver could just be abusing the system. But we don't know how you were contacted, so I'll leave DMCA out of this for now.
How close is such a statement corresponding with the reality? Legally, such language is a meaningless statement of future intent that at best makes clear that the person making the statement isn't waiving any of their legal rights. Certainly, no infringer would have standing to sue if they failed to do so. Whether a joint venture member or foreign reseller could sue the company for failing to enforce its IP rights is another question that presents itself very differently and depends upon much more than what the warning labels state, such as the language in the joint partnership or reseller's agreement with the copyright owner. Also, in criminal copyright violation cases, even if the copyright owner asks for the maximum possible consequences, the U.S. Justice Department is under no obligation whatsoever to go along with that request. Likewise, a judge has no obligation to impose the maximum penalty allowed by law following a criminal conviction, even if the copyright owner and the U.S. Justice Department both request a maximum sentence for someone who pleas guilty or is convicted of the offense following a trial. In practice, something like 98% of federal criminal cases, and a similar percentage of federal civil cases, result in agreed resolutions which result in less severe penalties than the maximum penalties allowed by law. This happens as a result of a mutual agreement to resolve the case with a guilty plea, or a settlement agreement in a civil case, or both. Also, in practice, none of these companies, nor the federal government's prosecutors, have the resources to press anything but the most clear and serious copyright violation cases, and cases that are valuable for P.R. purposes. Anything else is essentially a random lottery from myriad cases that could have been brought in order to counteract the argument (both political and legal) that their copyright protections are empty and completely unenforced is a large part of the cases to which the statutes would make it seem that they apply. Also, in a case brought by a joint venture owner or reseller for failure to enforce a copyright which causes the partner damages, presumably in some sort of breach of contract or breach of fiduciary duty action, there would be no way to prove damages from all of the non-enforcement, since enforcing every known infringement would not be cost effective and would reduce the net profits of everyone involved.