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Articles
Filing a Counterclaim Against a Takedown from Tempting Brands
- Details
- Category: Trademarks, Copyrights, Public Domain, History
- Created on Tuesday, 25 May 2010 16:56
- Last Updated on Thursday, 11 April 2013 04:22
- Written by Johnnie Meier
Artists and designers who have merely sent e-mails to Zazzle are turned away with a notice that the infringement matter must be taken up between the artist and the alleged copyright/trademark holder. Zazzle simply steps away from the problem. However, there is a procedure for a legal protest (no lawyer required) that compells Zazzle to respond to your protest by replacing your content back on Zazzle. This is accomplished using a formal letter formatted according to provisions in the Digital Millennium Copyright Act. For reference, background info quoted from the Digital Millennium Copyright Act is presented below. Below that are sample do-it-yourself forms.
Section 512(f) of the Digital Millennium Copyright Act of 1998 states:
"In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material.
If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f))."
Counterclaim Forms and Examples.
chillingeffects.com provides an online counterclaim form for creating a counterclaim. Just fill it out and it will generate a counterclaim letter. You will notice a section that asks for a copyright agent. This is the web site designated person who is the contact person for counterclaims. You can follow the agent link on the chillingeffects web site to identify the agent (Zazzle). The Zazzle copyright agent data can be viewed here
An example of a completed counterclaim generated by the chillingeffects.com form addressed to the Zazzle agent is here. Remember that as stated in the letter, you must attach a list of the web pages (items) that have been removed, specifically the URLS (the web addresses) which once existed but are now absent.
After Filing A Claim - What Happens Next
As noted in the generated counterclaim letter and according to provisions of the Digital Milllenium Copyright Act, the web site has 14 days to replace the notice. See the following text.
Having complied with the requirements of Section 512(g)(3), I remind you that you must now replace the blocked or removed material and cease disabling access to it within fourteen business days of your receipt of this notice.
So, the process has been:
- A takedown notice was requested by the alleged copyright/trademark holder.
- The web site hoster complies with the request, removing your item.
- The target of the copyright/trademark infringement (the artist) submits a counterclaim.
- The web site hoster must replace the alleged infringed material.
Now what? Now it is a time for lawyering up. The copyright/trademark owner can sue in court for damages and you would need a lawyer to defend. There is no evidence that we are aware of, in the case of Tempting Brands, of actually suing an alleged infringer, but it could happen.
At this time, the coalition iis consulting with candidate attorneys who may be willing to accept a case pro bono, without legal fees to defend a case.