How to Defend against a DMCA Takedown Notice for Amazon Sellers
Online service providers such as Amazon and Google are bound by the Digital Millennium Copyright Act (DMCA). This act provides that, in order to not be liable for copyright infringement “by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider,” the service provider must respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” upon notification of claimed infringement. This means that a provider like Amazon will quickly remove your listing in order to protect themselves from liability, regardless of whether the claim is meritless or not, potentially costing Amazon sellers a lot of money.
The DMCA also provides, however that, once the material is removed, providers must take additional steps to comply with the act. This includes taking reasonable steps to promptly notify the subscriber (person who provided the content) that it has removed the material. At this point, the seller whose item has been removed can file a counter notification. The service provider must then notify the person filing the claim of the counter notification and inform them that it will replace the removed material in 10 business days. The reinstatement of the item in question will happen in no more than 14 days unless the person filing the claim has filed an action to seek a court order regarding the infringement. This mean that, to continue to claim copyright infringement, the person or company filing the claim must file suit against the party they claim is infringing in their intellectual property.
The DMCA is very specific about the contents of the counter notification, so it is important that a seller carefully drafts the response. To be an effective counter notification, it must be a written communication that includes:
The signature of the subscriber.
Identification of the material that has been removed and the location at which the material appeared before it was removed.
A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed as a result of mistake or misidentification.
The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located and that the subscriber will accept service of process from the person who provided notification.
The process of defending your business against a meritless DMCA claim can be confusing and labor intensive. If you find yourself in such a situation, the best path forward may be to consult with an experience e-commerce attorney. Contact the Xu Law Group to schedule a free, no-obligation consultation with one of our international business and intellectual property law attorneys today.