United States: A DMCA Plan For Dealing With The Total Wipes Out There (Video Content)

Last Updated: March 3 2015
Article by Justin F. McNaughton

Last week, TorrentFreak reported on the world's most idiotic copyright complaint by a company called Total Wipes. Total Wipes is a German company that sends automated copyright infringement takedown notices to Google and other companies. Total Wipes apparently has had a few glitches in its automation over the years, once sending takedown notices based on articles with the word "hide" in them. According to an email apology from Total Wipes (kindly provided by ArsTechnica), the latest glitch was based on articles with the word "download" in them. Considering the Electronic Frontier Foundation reports that Total Wipes sent approximately 12,000 copyright takedown notices to Google in the last month alone: Yikes!

Backing up to give some context, the Digital Millennium Copyright Act (DMCA) set up a system almost 20 years ago that allows electronic service providers to avoid liability for "contributing to infringement" when third parties publish infringing content . Note: anyone with a website or service that allows third parties to post is a service provider and can take advantage of the DMCA process.

The idea is that if a third party posts something to your website, you are not responsible for it IF:

  1. You register with the copyright office as a service provider and follow the DMCA takedown rules.
  2. You didn't know about the infringing content.
  3. You didn't moderate/edit the posts before they were published.
  4. You were not paid directly for publishing the infringing content.
  5. Promptly after becoming aware of infringing content, you took it down.

You can imagine that with a single company sending 12,000 takedown notices a month just to Google, that these companies have a system to manage the chaos.

Receiving DMCA Takedown Notices

Indeed, the DMCA requires certain information in an effective takedown notice. As a company, you may as well structure your reporting system to require this information so that you don't spend a bunch of time chasing down incomplete takedown notices. Take a look at Google's DMCA takedown notice portal if this doesn't quite make sense in the abstract.

Based on DMCA, your reporting notice portal/form should specifically ask for these things:

  1. Handwritten or electronic signature of the complaint submitter.
  2. Identification of the original copyrighted work (i.e., description of it).
  3. Identification of a location of the original copyrighted work (i.e., a url location).
  4. Identification of the allegedly infringing work and its location (i.e., a url location).
  5. Name, address and email address of the complaint submitter so you can contact them.
  6. A statement that the complaint submitter has a good faith belief that the material is not authorized.
  7. A statement (under penalty of perjury) that the complaint submitter believes the notice is accurate.
  8. A statement (under penalty of perjury) that the complaint submitter is authorized by the owner to submit the notice.

If someone messes up the notification, the good news is that the statute says a faulty notice won't make you "aware" of the infringement. The bad news is that it requires you to contact the submitter to get the missing information, which is why I suggest using your form/portal to lead the submitter to the correct notice. Also consider requiring a different notice for each infringement to avoid confusion during processing.

Taking Down the Material and Notifying Your User of a Notice

To benefit from DMCA after receiving a notice of copyright infringement through your DMCA form/portal:

  1. Take down the content as quickly as you can.
  2. Send a notice to your user that you took the content down and informing them about the takedown notice (probably easiest to forward it to the user).
  3. Provide your user instructions for submitting a counter notice (response).

Accepting Counter Notices from Users

Think about the nightmare Google must have had if most of those 12,000 notices last month triggered counter notices that Total Wipes was insane. Here again, it is easiest to lead your users to file the particular information you need to evaluate the user's response to the takedown notice.

Based on DMCA, your counter notice portal/form should specifically ask for these things:

  1. Handwritten or electronic signature of your user.
  2. Identification of the material that was removed (i.e., a description).
  3. Identification of the location where the material was located (i.e, the url).
  4. A statement (under penalty of perjury) that your user believes in good faith that the removal was a mistake or because of a misidentification.
  5. Name, address and telephone number of the user.
  6. A statement that the user submits to jurisdiction in the Federal court for the user's address (if U.S. address) or for the address of your company (only if non-U.S. user address).
  7. A statement that the user will accept service of process from the person who submitted the notice in that jurisdiction.

Processing Counter Notices from Users

So Google had the unfortunate obligation to process all of the counter notices submitted by users who received improper takedown notices from Total Wipes. Similarly, when you get a proper counter notice saying a takedown notice was improper because of mistake or misidentification:

  1. Promptly send the counter notice (from your user) to the original complaint submitter.
  2. Inform the original complaint submitter that you will replace the original content within 10 business days.
  3. Actually replace the original content within 10 business days.
  4. Note: If the original complaint submitter provides you notice that it has sued your user, then don't put the content back up.
  5. Take a deep breath because, with any luck, you're done.

It seems like a lot and, like any legislative safe harbor, it seems complicated. It is, but consider that before the act Google would have had a potential for resolving 12,000 lawsuits and somehow the process seems more manageable.

It is a bummer that some people are Total Wipes when it comes to this stuff, but once you have a system for managing the notices, you can dramatically reduce your risk of liability for contributory infringement. If you enjoy reading statutes, the text of DMCA is here.

Below is a great parody clip about DMCA (that likely survived a takedown notice because of " fair use"!). If you're curious about the Stallman reference, this will explain the joke.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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