The Digital Millennium Copyright Act (DMCA) notice-and-takedown system is almost certainly the most common copyright interaction the average internet user will have to deal with.
Whether they are trying to access content that was removed, had their own content taken down or used the system to protect their work, nearly everyone has been impacted by this system.
But while it is well known for its usefulness in getting content removed, there’s a second half of the system that allows those targeted by DMCA notices to request that their content be restored.
That system, known as the counternotice process, is rarely used and, even when it is used, doesn’t always work well. It’s a complicated process that is often ignored, even when the subject of the first DMCA notice feels they were wrongly targeted.
But when a counternotice is filed and the content is restored, or about to be restored, the original filer can be left in a lurch. Historically, the options have been limited for a creator who feels a counternotice was filed incorrectly, either out of mistake or malice.
However, there is now a new alternative: The Copyright Claims Board.
That said, it still remains to be seen just how useful it will be in this space and whether it will create more problems than it solves.
The Notice-and-Takedown Process
The DMCA provides protection to online service providers that host content at the direction of their users. This includes social media sites, such as Facebook and Instagram, web hosts like GoDaddy and Hostgator and search engines such as Google and Bing.
In exchange for not being held liable for infringing content uploaded by users, such online service providers to follow the rules of the DMCA notice-and-takedown system. To be a part of that system, they must designate an agent to receive notices, register that agent with the United States Copyright Office, and then respond to completed DMCA notices by removing or disabling access to the allegedly infringing material.
However, after that takedown is completed, the user has the option of filing a counternotice if they feel that the original notice was incorrect. The counternotice is different, from the original takedown notice, as it required additional information and consent to be sued in a federal district court (either where the user resides or where the online service provider resides).
After a period of 10-14 business days, the online service provider restores the content, unless the original filer notifies the provider that a lawsuit has been filed against the alleged infringer.
However, for filers, this is often the moment of impasse. Filing a copyright infringement lawsuit, even with the issues of jurisdiction resolved, is simply impractical. Even if the stars align and a lawsuit makes financial sense, filing it within the 10-14 business day window is virtually impossible.
That, in turn, is where the Copyright Claims Board comes in. As a quick and cheap alternative to the federal court system, it’s also an alternate path for creators to prevent a work from being restored after a counternotice.
How the Copyright Claims Board Shifts the Balance
Counternotices, to be clear, are very rare. In general, unless the original notice is clearly false, it’s generally safer and easier for users to just accept the notice and move on, whatever that entails.
But there has been a growing issue of alleged infringers knowingly filing false counternotices. Infringers of various stripes do this because they know, in general, they are safe from any actual copyright infringement lawsuit simply because there are so many practical barriers.
But that changed in June of last year with the launch of the Copyright Claims Board. The CCB is intended as a lower-cost alternative to the federal court system. It is intended to be used to hear cases of copyright infringement where lower damage amounts are expected and the legal issues are more straightforward.
However, a recent webinar held by the CCB made it clear that it can also be used as an alternative to federal lawsuit when seeking to block the restoration of content removed via a DMCA notice.
This is because the CCB, among the types of claims it can hear, includes claims of misrepresentation in notices sent under the DMCA. This includes misrepresentation both in original notices of copyright infringement and counternotices.
This means that a rightsholder, when confronted by a counternotice, can file a case with the CCB claiming misrepresentation and, at least temporarily, block the restoration of the work or works at issue.
This is a major deal for rightsholders caught in this situation, as filing with the CCB only costs $40 for the initial fee and can be done in a matter of hours and without the aid of a lawyer.
In short, rightsholders faced with false counternotices now have a practical alternative to either allowing the work to be restored or filing a federal lawsuit. However, there are still reasons for both rightsholders to curb their excitement.
Limitations and Potential Problems
Though the CCB has made it clear that filing a case there should prevent the work from being reuploaded, there are limitations that potential filers should be aware of.
First is that respondents can opt out of proceedings. This means that they can simply say they don’t want to participate in the process and that returns the filer back to making the choice of either filing with federal court or letting the allegedly infringing material be restored.
However, those opt outs take a significant amount of time. For example, case 22-CCB-0205 was originally filed with the CCB on October 13, 2022. Two of the parties opted out almost immediately, but the case was not dismissed against them until this month, August 2023, ten months later.
This is because it takes a long time to get to a point where an opt out is even possible. A claimant has to file the claim, have that claim approved (often after an amended claim is required) and then they have to provide service to the respondents. It’s only after service is completed that respondents can make the choice to opt out.
Getting to that point can take many months, sometimes close to a year. During that time, the allegedly infringing material remains offline.
The likely bigger issue is that the CCB cannot hear cases against foreign respondents. So, if the counternotice is filed by someone outside the United States, the case will likely be dismissed relatively quickly. This doesn’t have the degree of delay an opt-out does, and instead would be dismissed before process service is necessary.
However, these issues likely won’t sit well with critics of the DMCA either. The idea that someone, theoretically, can spend $40 can keep a work offline for nearly a year even after a counternotice has been filed will, understandably, worry some.
For many works, 10-14 business days is already an eternity, making up the bulk of the time a work would draw attention and earn revenue. Six months or more could be a death knell, even for a popular work. As such, even if the work is restored after the case is dismissed, the damage may already be done.
That said, the CCB does have protections built into it and has the power to ban parties or their representatives that repeatedly act in bad faith for one year. We haven’t seen this behavior become common at the CCB, and it’s unlikely to start now, but if it does, the CCB would have tools to counter it.
Still, it’s clear that the CCB, as an answer to counternotices, isn’t a perfect solution for either claimants or alleged infringers. It is an imperfect tool, but still an option worth considering.
For most rightsholders who file DMCA notices, the issue of counternotices is a relatively rare one. There simply aren’t that many disputes over the facts of a DMCA notice.
Still, some have realized that they can file counternotices, regardless of whether or not they are justified to do so, safe from any real consequences. The impracticality of filing a lawsuit in federal court has made it so that it’s even rarer for counternotices to again be countered.
The CCB provides a new alternative to the choice of either allowing the work to be restored or filing a federal lawsuit. Though it is an imperfect tool that will not work in all cases, it is still a welcome alternative.
Though there are definitely reasons to be wary of potential abuse, the CCB is set up well to address such issues, and they do not appear to be common, at least not as of this writing.
In the end, much of this problem does fall on the online service providers themselves. They are the front lines when it comes to clearly false DMCA notices and clearly false counternotices. If they do a good job handling these issues, the CCB wouldn’t be almost unnecessary when it comes to misrepresentation claims.
However, as we’ve seen time and again, that’s not the case. Meaning that we’re likely to see the CCB take a bigger role in the DMCA process, especially when it comes to dealing with allegedly false counternotices.