I’ve had a few different people approach me in the last couple months because their sites have been removed by Google based on the filing of a DMCA Complaint. The notification in Google’s webmaster tools looks something like this:
In response to a complaint we received under the US Digital Millennium Copyright Act, we have removed 1 result(s) from this page. If you wish, you may read the DMCA complaint that caused the removal(s) at ChillingEffects.org…
Their sites are gone from the SERPS and people want to know SEO and legal strategies for getting around this problem. Today I’m going to share the best legal response to this problem.
Your best bet for getting content restored is to file a counter-notification in accordance with the DMCA. I’ll give you some background information and then some sites with more detailed information and examples below.
Important Note: Only fight an allegation of copyright infringement if you honestly believe that you’re innocent of the accusation. Be honest and don’t abuse the law. That goes for both complaining about and responding to copyright violations. If you don’t know whether you’re infringing someone’s copyright, consult an attorney before sending a counter-notification.
What is a DMCA Complaint?
If you already know what the DMCA is and how take-down notices work, skip this section. It will just be review.
The DMCA is a US federal law entitled the Digital Millennium Copyright Act. It was designed to provide quick and cheap remedies for people who’ve been victims of copyright infringement. Basically, if someone steals your content and posts it online, you can send a Take-Down Notice to the owner of the infringing website, the hosting company, and the search engines to request that the infringing material be taken down. Most people find that it is much easier to send a take-down notice to Google rather than deal with everyone else. After all, if you’ve got the infringing content off Google, no one is likely to find the infringing content anyway. This is why I am focusing on Google in this article. It’s not because Google is somehow bad or more aggressive about the DMCA than other search engines; It just receives more take-down notices because of its market dominance. Anything I write about Google here can be equally applied to any other search engine or online service provider.
Once someone sends a DMCA take-down notice to a search engine, the SE will remove the allegedly infringing content from its results pages. Unfortunately, people send bogus DMCA complaints regularly. Thus, this could happen to one of your clients some day!
Remember, the search engine doesn’t make the complaint. A third-party sends a complaint to Google about your website. Google then must quickly remove the content or face potential liability for copyright infringement. Google responds because the DMCA is designed to give it incentive to quickly remove the content without conducting any independent investigation. It’s not personal. It’s just how the law was set up.
What To Do If Google Removes Your Content Because of A Bogus DMCA Complaint
The US congress made it very easy to ask search engines (and other Online Service Providers) to remove allegedly infringing content. However, congress also created a simple way for you to fight back.
All you have to do is send a counter-notification to the company that removed the content, usually Google. The Counter-Notification is just a letter that informs Google that the copyright infringement allegations are false and demands that the removed content be restored. A counter-notification is often called a “put-back notice.”
After you send your counter-notification, Google will notify the original party who complained against you. Then Google will wait no more than 14 days to restore your content, UNLESS the original complainer files a lawsuit against you. If the original complainer (the third party who sent the take-down notice) files a lawsuit against you, then Google will refuse to restore the content. If the original complainer doesn’t file a lawsuit, then Google will restore your content within 14 days.
So basically, if your site was removed because of a DMCA Complaint, the ball is in your court now. You’ve got to inform Google that it made a mistake by filing a counter-notification. It will restore your site, unless you get sued.
You’ll see in the links to samples I provide that there are certain things that your put-back notice must include. Required information includes things such as
- a denial of the allegations against your site
- your name
- your address
- your consent to jurisdiction
- your oath that everything you’ve stated in your counter-notification is true
Please visit the following sites for information and samples of counter-notifications:
Google’s Instructions on Filing Counter-Notifications (scroll down a bit, it’s after notifications. You’ll find a fax number, an address, and specific instructions on the information to include)
Sample Put-Back Notice to Google by Neoteric (this is a great example of a classic and simple put-back notice)
Future Quest Sample Put-Back Notice
Do It Yourself Counter-Notification (very detailed article with great sample language! May be a bit overkill)
Chilling Effects Frequently Asked Questions on Put-Back Notices
Special Jurisdiction Issues for Foreign Websites
Before I close, I want to cover one important topic: consent to jurisdiction. This is mostly important for foreign website owners.
When filing a counter notification, you must consent to jurisdiction of the US federal district court (see samples in the links above).
If you’re based in the US, then you would be consenting to the US federal District Court where you live. Because U.S. citizens and businesses can always be sued in the district where they live, the consent-to-jurisdiction-requirement doesn’t have an impact for U.S. citizens and businesses.
However, if you’re a foreign owned and operated website, you must consent to jurisdiction either where Google is located (Santa Clara, CA) or where the original complainer is located. Consenting to jurisdiction can increase your risk of being sued. It is more difficult to serve people in foreign countries with a lawsuit, unless they consent to jurisdiction in the US. Thus, before a foreign owned and operated site issues a put-back notice, it should seriously consider the risk of suit.
If the original complainer doesn’t really have a good case and he was abusing the DMCA for censorship or business reasons, then your risk of getting sued was probably slim in the first place. Thus, consenting to jurisdiction wouldn’t increase your risk that much. However, if the original complainer is very serious and thinks it is worth filing a lawsuit against you, then your foreign residence may be helping to protect you from a U.S. lawsuit. In this case, you wouldn’t want to consent to U.S. jurisdiction. It may be better to start a new website with new, non-infringing content.
Thus, before a foreign entity sends a put-back notice, it is very important to step back and make sure that you’re not at serious risk of a lawsuit or that you don’t mind potentially defending against a lawsuit in the U.S.
This post should give you the tools and information you need to get your content restored after a bogus DMCA complaint. Please let me know if you have any questions or concerns about DMCA put-back notices. I look forward to hearing from you.
Respectfully,
Sarah
