Wrong for Being Right?

I recently submitted a DMCA notice to a major U.S. Web host. I won’t name the host, but I will say they are well-known for hosting major sites. Nonetheless, I had never dealt with them before personally and was taking notes on how the encounter went.

After sending the notice I received a reply back stating that they “cannot take any action unless a valid complaint is received.”

I was stunned. The notice I use was written by a lawyer and vetted by two others, all with copyright experience. The only modifications I made to it were formatting, to make it easier to use as a template.

I was reasonably sure that the notice was valid.

I then read the email more closely and found that, according to the reply:

“In order to comply with this act you must swear under the penalty of perjury that you hold or you represent the holder of the copyright.”

However, my stock DMCA notice contains two statements at the very end:

6. The information in this notice is accurate, and I am either the copyright owner or I am authorized to act on behalf of the copyright owner.

I declare under the perjury laws of the United States of America that this notification is true and correct.

In the email, they also link to the DMCA itself (PDF), which only states:

“Under the notice and takedown procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements”

I’ve been open to my DMCA notice having problems since my original one was so brutally shot down. I even spotted a grammar error in my current notice while working on this article. However, it doesn’t seem to me that it fails in this area. Anyone who wishes to correct me is free to do so.

Theories

Assuming that the notice is correct and that host in question had no valid reason to reject it, I can think of three reasons why this might have happened.

  • Simple Human Error: It is possible that the person reading the notice simply didn’t see the declaration at the bottom. The notice is, admittedly, formatted strange and it could have simply been overlooked. DMCA agents are people too.
  • Semantics: It could be that they simple take an issue with the word choice of the notice. “Swear” vs. “declare” and the location of the statements could make the notice, in their minds, truly invalid. Still, if that were true, it would seem likely that Google, the ultimate DMCA stickler, would have already said something.
  • Buying Time: Since the host contacted the site operator, something my attempts to do had failed in achieving, and the work was removed before I could file a new notice, it seems likely that the host was just buying some time to avoid having to use the nuclear option (Note: The host was NOT ipowerweb.com) on a decent-sized site.

While all of the options are understandable, the second is unusually hostile and narrow considering what is written into the law and the third is unnecessary as most copyright holders are perfectly willing to wait while Web hosts work with their clients.

It certainly beats sleepless nights spent mulling over an unintended consequence.

Conclusions

The bottom line in all of this is a simple one. Though it’s a rare occurrence, sometimes DMCA notices will be rejected, even if they appear to be valid.

Though my case was resolved regardless, the host was able to get ahold of the operator, something my emails had failed to do, and the operator removed the work, it can be a very sticky situation.

Odds are, if the matter hadn’t been resolved, I would have simply resubmitted the notice with the exact terminology that they requested. However, I doubt I would have made any permanent changes to my stock notice based upon it.

There is simply no way to write a stock notice that will be accepted by 100% of all applicable hosts. Different interpretations of the law will likely cause even the best-written of notices to be rejected at least once in a while.

It’s something to be ready for but not to be overly concerned about.

Tags: Content Theft, Copyright, Copyright Infringement, Copyright Law, DMCA, Plagiarism

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