One of the most asked questions recently is;
I am an affiliate, and I am using the photos/videos provided by the program to promote them but I keep getting these DMCA takedown notices on the content from the models who are in it.
Is there anything I can do?
The answer is yes. If you are an affiliate that is using the licensed content provided by a program to promote that program, then you have a right to file a counter-notice to the DMCA notice filed by the model or content creator.
Often these notices are simple mistakes by the DMCA notice service, other times it is a targeted takedown of content by the model. Either way, as an affiliate you have license to use the content provided by the program. However, there are repercussions for filing false DMCA notices. But I will get to the in a minute.
I usually advise clients to file their counter-notification immediately. And then contact the program and let them know that their content is the subject of a false DMCA takedown notice. Obviously, you will send a copy of the counter-notification to the DMCA takedown service. However, you should also reach out to them directly and try to explain the situation. I recommend that you ask them to white-label your site in their system so that you do not continue to receive notices that are obviously intended for content pirates.
If the DCMA service refuses to white-label your site(s) or you continue to get barraged by false notices, now you should hire an attorney to step into the situation and represent you. My offices have been retained by several affiliates to stop the deluge of false notices.
The DMCA gives the receiver of a false DMCA takedown notice the right to file a lawsuit. Specifically, Section 512(f) of the DMCA states that the party issuing a false DMCA take down notice:
“…shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.”
Usually, filing a lawsuit is not necessary since most DMCA takedown services will try to immediately rectify the situation once they receive a letter from an attorney. Especially because not only is the DMCA takedown service liable for the false takedown notice, so is the model / content creator. You can also forward a copy of the letter to the model / content creator to let them know they will also be liable for damages.
If you do have to file a lawsuit, one of the strongest aspects of Section 512(f) is that it also allows a party to recover attorney’s fees for a false takedown notice. These types of cases have rarely been litigated in the past, but it does appear that more and more affiliates are willing to file suit to protect their business and obviously ranking on Google.
In a case filed in June 2022, damages of $7.6 million were demanded by an aggrieved party. According to Engaget.com, a YouTuber by the name of Lord Nazo received copyright takedown notices from CSC Global — the brand protection vendor contracted by game creator Bungie — for uploading tracks from their game Destiny 2’s original soundtrack. While some content creators might remove the offending material or appeal the copyright notice, Nazo, whose real name is Nicholas Minor, allegedly made the ill-fated decision to impersonate CSC Global and issue dozens of fake DMCA notices to his fellow creators. Bungie is now suing him for a whopping $7.6 million.
Read the entire story here -> https://www.engadget.com/bungie-sues-destiny-2-youtuber-lord-nazo-fake-dmca-notices-000022846.html
This is obviously a case that involves willfully filing numerous false DMCA takedown notices which is why CSC Global is asking for such a huge amount of damages.
There is a case that better illustrates what you can recover in DMCA litigation. In Automattic Inc. v. Steiner, 2014 U.S. Dist. LEXIS 182295 (N.D. Cal. Oct. 6, 2014), in a lawsuit filed in response to a false DMCA claim with WordPress, the U.S. District Court for the Northern District of California awarded Automattic $960 in damages for Hotham’s lost work and time, $1860 for time spent by Automattic’s employees, and $22,264 for attorneys’ fees incurred by Automattic.
That decision is almost 10 years old, but it does give an affiliate a reasonable amount to demand in regard to settlement. And depending on the sheer volume and damages caused by the false DMCA takedown notice, it would not be unreasonable to ask for $100 to $500 per false takedown notice in addition to your attorney’s fees.
If you are an affiliate and are inundated with false DMCA notices, you can take a more aggressive approach and resolve the issue and possibly recover damages in a settlement.
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