Received DMCA Violation - Would like your opinion

[Sutra]

Yesterday I received a DMCA violation notice from my host. The complaint comes from a competing website. They weren't clear in what was the copyright infringement. However, I did use their image and credit them so I assumed that's what it was. I removed the image immediately and notified my host. But I just revisited the complaint and now I think the complaint is saying that my entire article is copyright infringement. I would like to know what you guys think.

Here are the details:

A while back I asked one of my writers to create an article about 14 Maddening Things Students Experience at College in Wisconsin (made up title).

The writer found some similar articles about the subject mixed them up and rewrote them. Four of those items came from a competing website. The writer submitted the article to me and I ran it through Copyscape premium. Copyscape came back saying it's clean.

The article on the competing website in question is like 11 Crazy Subjects Students Study in Wisconsin Colleges. When I compare some of the writing from the article my writer submitted, yes, there are some similarities and words and phrases from the competing site. However, it's also quite different, uses different images, has more items in the list, the title is different, and Copyscape felt the writing was different enough that our article was considered unique.

So my question is, if the owner of the competing website does indeed feel like my entire article is copyright infringement, does he have a leg to stand on?

 

[contract]

Tell your host you did nothing wrong, someone is abusing it to take advantage of you.

The person who filed that can fuck off. Nothing to worry about.

Most of those viral sites rip off each other anyways, even Huff post and others do it without permission. @Tavin wrote about this in one of his threads. (Different niche but still the same thing with competitors)

 

[Potatoe]

I'll just leave this here... http://www.aaronkellylaw.com/consequences-of-filing-a-false-dmca-takedown-request/

 

[CCarter]

Do they have a leg to stand on? Not really if it really is rewritten but they can hassle you. Rewritten content is not eligible for copyright protection. Also the submission is under penalty of perjury, so if they made a "mistake" you can take them to court cause they are making false accusations.

But that's why you need to setup your own nameserver for your domain so it's not pointing directly to your hosting company. For example look at BuSo's name server, they are going to ns1.buildersociety.com and ns2.buildersociety.com. Doing the nameserver switch is not full proof in anyway, it's just an added barrier they have to get over. If you used a CDN then it would be another added barrier, but a determined person would get over them. @Ryuzaki wrote about the nameserver setup in Day 4 of the crash course.

Google's gotten DMCA reports for a ton of pages on one of my sites, they just removed that particular page from their index and send me some notice in WMT. I never respond. The reason Google got it was cause I'm using Cloudflare as the nameserver, so you just gotta know how to play the game a bit.

 

[Sutra]

Thanks for the feedback everyone. I appreciate it.

They've been number 1 in the SERPS for a keyword for a while. I just noticed today that I'm number 2. Didn't even know I ranked, hah. Anyway, don't know if the timing is coincidence or if they see me as competitor now and are taking action. Whatever the case, will see how this plays out. But sounds like I'll be good.

Down the line will look into setting up the nameservers as you, @CCarter mentioned.

 

[Calamari]

They're afraid. They're hoping you'll panic. Don't change anything that will put your ranking at risk.

 

[Sutra]

Well, got an email from my host saying that yes indeed, it's the entire page that being said to infringe on their copyright. The host has said that I must remove the page before the due date (which is tomorrow) before that are forced to disable the content. They said the other option is for me to file a counter-claim.

From what I understand, filing a counter claim can then open it up to litigation.

Taggin everyone up in dis bitch, haha.

@contract @j a m e s @CCarter @Calamari

So then, what would you say is the be course of action here?

 

[CCarter]

I'd find a new fucking hosting company. But I would file a counter-claim if your content is indeed unique and not copied from them. If it's not just take it down, create a new article and 301 the old url to the newer version. You'll be back within a week.

 

[juliantrueflynn]

I agree with @CCarter that your host sucks, do you mind naming and shaming?

If this is shared hosting you need I would recommend Arvixe, they wouldn't sell you out like this. If you're using a VPS then I recommend Knownhost.

Understand too that Copyscape has a pretty easy algo to beat, so maybe check out reading them over again to be 100% sure. Really though, you should just go on a free lawyer advice site or get a consulting hour from a lawyer locally. Anything other than that is guessing which doesn't help in court.

 

[Sutra]

I'd find a new fucking hosting company. But I would file a counter-claim if your content is indeed unique and not copied from them. If it's not just take it down, create a new article and 301 the old url to the newer version. You'll be back within a week.

Good idea. The article is unique but I'm thinking it's not even worth the hassle. Sucks to be steamrolled like this though. However, I have an awesome writer on hand (much better than the one who wrote the original), and with the new improvements I've made to user experience, I'll make an even better article and smash this motherfucker into the ground.

I agree with @CCarter that your host sucks, do you mind naming and shaming?

If this is shared hosting you need I would recommend Arvixe, they wouldn't sell you out like this. If you're using a VPS then I recommend Knownhost.

Understand too that Copyscape has a pretty easy algo to beat, so maybe check out reading them over again to be 100% sure. Really though, you should just go on a free lawyer advice site or get a consulting hour from a lawyer locally. Anything other than that is guessing which doesn't help in court.

Host is Pair Hosting. I've liked working with them. Their customer support has been awesome. But this seems ridiculous. If it's that easy to force a page to be taken down, then anyone can do it on a whim.

I called them just now to try talking to their abuse department but they only allow contact with them through email. Problem is, their abuse department takes a day to respond. I emailed them back this morning but at their response rate I won't hear from them until tomorrow. And by then it's too late because they'll take the page down. I asked the guy on the phone to have them contact me earlier. We'll see what happens.

Most likely will just take the page down and redirect. Feels shitty. Really bothers me that the owner of the site would do that. I don't know him but I respected his site and what he built and didn't expect this from him. But like I said, I don't even know him, hah. Regardless, I will come back harder.

I'm about to max out the bandwidth on the highest level of shared hosting. So will go VPN next. Will check out Knownhost.

 

[Potatoe]

My advice is to pick your battles.

Usually when people say that, it means "just forget about it, back off..." but I mean it quite literally. It might be worth fighting. Is that page getting a lot of traffic? Ranking? Does it make you money? Is it worth fighting over, or are you getting into it over principal?

It pisses me off that these people are bullying and acting like they're the only ones that can cover a particular topic, and if they're just getting all of the competition to delete their pages then it's working... but is it up to you to be the hero the internet deserves?

I put an arbitrary monetary value on your time and stress levels to fight this, and I put a monetary value on your money of exactly $1 per $1.

PS - You need to ditch Pair Hosting if they don't have a way for you to call up and get someone on the phone, among other reasons. Pair hosting are not your friends. Edit: Just realized its the abuse department in particular that you can't call, I misread at first. Still tho...

 

[Calamari]

smash this motherfucker into the ground.

Pour the social signals into until you take over that #1 spot. And then find the rest of his $ keywords and take over the best of those too.

edit - @j a m e s makes a good point

 

[juliantrueflynn]

Most likely will just take the page down and redirect. Feels shitty. Really bothers me that the owner of the site would do that. I don't know him but I respected his site and what he built and didn't expect this from him. But like I said, I don't even know him, hah. Regardless, I will come back harder.

"It's nothing personal, just business." It's not like he's doing this to you personally, he's just trying to take out a competitor. Also the owner himself probably isn't even fully conscious of what this is and it's just a lawyer on payroll sending it out. It's so common in big business to use legal teams to help compete in markets, I wouldn't bother pegging this as 'good' or 'bad' ethics wise.

But yea, again, get a lawyer to review this. You shouldn't be talking to his lawyer/them without one.

 

[miketpowell]

I really doubt the other website has a lawyer on payroll - it's pretty rare really unless it's a company that owns a ton of sites. My company has multiple firms on retainer but I avoid asking them to do work if at all possible - because they bill for it.

This is likely just some webmaster abusing DMCA - and a different host isn't going to help. Because all hosts have to respond in the same way. If you refuse to stand by your page why in the world should they? Responding to a DMCA request is just saying, "Yeah you are full of it, here is my info if you want to sue me in big boy court instead of this DMCA stuff." If your unwilling to stand by your stuff no one else is going too for you.

If this website is a direct competitor of yours all you are telling them is you are going to bow down to false DMCA requests all day. Rank anything else above them and prepare for the same stuff.

Now there is a way to help protect yourself from this stuff but it's not by just changing your host or your DNS. You have to change the legal entity that owns and runs your website. This is a proper use of an off shore corporation. Then when you respond to the DMCA - they get your corporate details and the choice to go sue, of course the country your corp is based in makes it very expensive and cumbersome to file frivolous lawsuits. Check out ripoffreport and the like to see it in action. But setting that stuff up comes with a cost as well.

Really though if your didn't steal the content just fight the DMCA IMHO. The amount of webmasters that use fake DMCA requests to try to get rid of the competition vs those that will sue is about 100 to 1 if not more. The fact that they don't even have a valid case because you didn't steal the article makes it even less likely. They are just hoping you do exactly what you thinking about doing, dropping it to avoid a fight.

 

[Sutra]

My advice is to pick your battles.

Usually when people say that, it means "just forget about it, back off..." but I mean it quite literally. It might be worth fighting. Is that page getting a lot of traffic? Ranking? Does it make you money? Is it worth fighting over, or are you getting into it over principal?

It pisses me off that these people are bullying and acting like they're the only ones that can cover a particular topic, and if they're just getting all of the competition to delete their pages then it's working... but is it up to you to be the hero the internet deserves?

I put an arbitrary monetary value on your time and stress levels to fight this, and I put a monetary value on your money of exactly $1 per $1.

PS - You need to ditch Pair Hosting if they don't have a way for you to call up and get someone on the phone, among other reasons. Pair hosting are not your friends. Edit: Just realized its the abuse department in particular that you can't call, I misread at first. Still tho...

Good info. The page makes money but after my recent traffic madness I've been thinking about writing a similar page (similar to one being taken down) to see if could do even better. I suppose I can look at this as a positive because it will force me create something even better (without having to fight for the DMCA page). So in this instance, I am not the hero the internet deserves, haha.

Pour the social signals into until you take over that #1 spot. And then find the rest of his $ keywords and take over the best of those too.

Yes, good idea. I've been working my ass off and now this will help me focus my intentions even further.

edit - @j a m e s makes a good point

"It's nothing personal, just business." It's not like he's doing this to you personally, he's just trying to take out a competitor. Also the owner himself probably isn't even fully conscious of what this is and it's just a lawyer on payroll sending it out. It's so common in big business to use legal teams to help compete in markets, I wouldn't bother pegging this as 'good' or 'bad' ethics wise.

But yea, again, get a lawyer to review this. You shouldn't be talking to his lawyer/them without one.

In the future, as my site gets bigger, I may do that. I really would rather stay away from dealing with lawyers at this point. From what I've seen it's usually a big clusterfuck. Any time I've dealt with city/county/state, etc it's always been HUGE timesink. The time spent fighting this could be better spent building something grander. But, I do see what you mean. And in the future going the lawyer route may be necessary.

However, I do need to find a host that doesn't auto-remove a page when they receive a claim. That seems absolutely retarded. Shit, if my competitor were with Pair I could claim 5 of their other pages infringe on my shit and have them taken down. That would be some funny shit, haha. But obviously not the route I would take. Just need to find a host that's good and has some cajones.

 

[Sutra]

I really doubt the other website has a lawyer on payroll - it's pretty rare really unless it's a company that owns a ton of sites. My company has multiple firms on retainer but I avoid asking them to do work if at all possible - because they bill for it.

This is likely just some webmaster abusing DMCA - and a different host isn't going to help. Because all hosts have to respond in the same way. If you refuse to stand by your page why in the world should they? Responding to a DMCA request is just saying, "Yeah you are full of it, here is my info if you want to sue me in big boy court instead of this DMCA stuff." If your unwilling to stand by your stuff no one else is going too for you.

If this website is a direct competitor of yours all you are telling them is you are going to bow down to false DMCA requests all day. Rank anything else above them and prepare for the same stuff.

Now there is a way to help protect yourself from this stuff but it's not by just changing your host or your DNS. You have to change the legal entity that owns and runs your website. This is a proper use of an off shore corporation. Then when you respond to the DMCA - they get your corporate details and the choice to go sue, of course the country your corp is based in makes it very expensive and cumbersome to file frivolous lawsuits. Check out ripoffreport and the like to see it in action. But setting that stuff up comes with a cost as well.

Really though if your didn't steal the content just fight the DMCA IMHO. The amount of webmasters that use fake DMCA requests to try to get rid of the competition vs those that will sue is about 100 to 1 if not more. The fact that they don't even have a valid case because you didn't steal the article makes it even less likely. They are just hoping you do exactly what you thinking about doing, dropping it to avoid a fight.

I want to avoid getting my ass ripped in half by lawyers and such. But as you said, perhaps standing up to it is best.

How do I determine if my article is considered unique enough should I get sued?

As I mentioned, several of the items in the list were taken (and rewritten) from their site. But, there are more items in my list, there are more images (and different images), the title is similar but different, and Copyscape said it's clean.

If you go and compare some of the paragraphs the similarities would look like this:

Their article:
Image of a boy in the city here, then the text:
The boy ran after the dog but couldn't catch him. It's said the dog is crafty.
It's also said, by people who love in the town, that two dogs are twice as crafty.
Who is to say that adding another dog in the mix wouldn't make them even more crafty?

My article:
Image of a boy (different boy than their article) on a farm here, then the text:
If you happened to see a boy running after a dog, you may have noticed he couldn't catch him.
Dog are smart and wily. If you don't believe me, ask the local townspeople. They will tell you about all the crafty things they've seen two dogs do. I'd like to see you put a cat in there to see what really happens!

Is that considered unique enough?

And lets say they do decide to sue me. Can I just say, "Ok, fuck it. You win, I'll take it down" and that's that. Or do I actually have to go to court, pay fee's, and all that wonderful stuff.

 

[juliantrueflynn]

I really doubt the other website has a lawyer on payroll - it's pretty rare really unless it's a company that owns a ton of sites. My company has multiple firms on retainer but I avoid asking them to do work if at all possible - because they bill for it.

This is likely just some webmaster abusing DMCA - and a different host isn't going to help. Because all hosts have to respond in the same way. If you refuse to stand by your page why in the world should they? Responding to a DMCA request is just saying, "Yeah you are full of it, here is my info if you want to sue me in big boy court instead of this DMCA stuff." If your unwilling to stand by your stuff no one else is going too for you.

If this website is a direct competitor of yours all you are telling them is you are going to bow down to false DMCA requests all day. Rank anything else above them and prepare for the same stuff.

Now there is a way to help protect yourself from this stuff but it's not by just changing your host or your DNS. You have to change the legal entity that owns and runs your website. This is a proper use of an off shore corporation. Then when you respond to the DMCA - they get your corporate details and the choice to go sue, of course the country your corp is based in makes it very expensive and cumbersome to file frivolous lawsuits. Check out ripoffreport and the like to see it in action. But setting that stuff up comes with a cost as well.

Really though if your didn't steal the content just fight the DMCA IMHO. The amount of webmasters that use fake DMCA requests to try to get rid of the competition vs those that will sue is about 100 to 1 if not more. The fact that they don't even have a valid case because you didn't steal the article makes it even less likely. They are just hoping you do exactly what you thinking about doing, dropping it to avoid a fight.

I have no clue about them (the business being discussed), but yea it's going to be big businesses that have lawyers on payroll. Even with you requesting something from a lawyer they're going to say what to do strategy wise there (if we're talking small business). It's not like an attorney would jeopardize their position just doing what the client says. Just reasoning why I said the payroll statement, the main point I was getting across too was not to take it personally that a competitor is using a lawyer.

What you are touching on with making it difficult as possible does go with everyone else is saying about hosts/registrars. There's been plenty of court cases with hosts/registrars that wouldn't cooperate with selling out a user. And yea I agree with if you're really going the direction of off-shore accounts or states where parent corporations can be anonymous, but this just a DMCA request, he's not Jordan Belfort.

@Trankuility, I should have been more clear but getting a lawyer/legal advice isn't just for going after these guys or I'm suggesting file a false claim, but it's checking if you can ignore this entirely. Not doing anything and moving hosts is still doing something. I'm talking a free consultation or legal advice site and just confirming, takes under an hour.

 

[Sutra]

Ah, ok, now I get what you're saying, @juliantrueflynn

Thanks for clarifying that.

 

[miketpowell]

I know entirely what you mean about avoiding getting lawyers involved - they never give definitive hours and just keep billing you while they talk to you about what will "possibly" happen. It's the nature of their business but it's damn frustrating.

Here is my take on what most lawyers are going to tell you and the low down on the legal situation:

They don't have a valid case for copyright infringement. It will cost them 4-5 figures in fees upfront they can probably never get back just to file a suit against you.

If they don't have a filed federal copyright it's going to cost them even more to file. Also they have to show and prove damages in that case. They only get the punitive $X per infringement if they filed a federal copyright. If not they have to break down the math to show how much money they lost because of you and claim that amount.

If they do go ahead and sue you - they will be asking for a dollar amount of "damages" that will either be punitive if they have a federal copyright filed or a justification based on "losses" if they don't. At that point to just make it go away you'd have to pay what they ask and remove it if you didn't want to fight it. Fighting it would cost you low 4 figures simply to respond to the suit even with a 100% solid case. If they keep spending it will get more costly than that. But they will be needing to out spend you 2-3 fold.

The basic risk here is if you are facing someone that is willing to spend money to force you to spend money. They aren't going to make money off of suing you and will lose money to go through with it. But if they are a big established player and want to push you out of the niche this is a fine way to do it. Waste $20,000 to force your competition to spend $7,000 and give up and go after a different niche. I've met people like this but they are often broke, the guys stacking cash don't see this as a workable strategy on the web long term and would rather just spend that $20,000 out ranking you. That kind of stuff worked better when some new guy moved to town and you pull that crap to push him out. Online it's to easy for anyone to jump in and compete it's not really effective to waste money just to get rid of a single competitor.

But here is the most important part to realize - not "fighting" this DMCA does not protect you from getting sued. If this website wanted to sue you they certainly don't need to wait for you to fight the DMCA, they could already be filing suit. A DMCA is just a cheap way to get a host to remove something without the trouble of a real lawsuit. Companies that sue tend to do that in combo with the DMCA request.

In the last 12 months we've gotten hundreds of requests to remove things off our sites at the threat of a lawsuit. We are based in NV and would be easy enough to sue in NV or federal court. We've never been sued or so much as even gotten a follow up demand letter on legal letter head.

Have you seen the letter that was sent to your host? Was it on legal leader head or just the webmaster filled out a DMCA request on the hosts website?

One thing you can do is get a lawyer to do a case search with Lexus Nexus for whoever made the DMCA request to see if they have a history of suing people. In my business for example there is one competitor that has a history of suing, if we got a letter from them to take something down we respond much differently than from anyone else that's for sure. But then again we'd probably be getting that letter at the same time they serve us with a lawsuit for punitive damages anyways.

No one here or any lawyer can tell you for sure if they are going to sue and attempt to waste your money if you don't take it down. It's a risk decision you've got to make yourself. In my experience on the internet they are not going to.

@juliantrueflynn - I'm unfamiliar with any cases where a host refused to take anything down for a DMCA request while simultaneously refusing to hand over any info about who they are hosting for. Would be very interested in any cases/situations like that if you've got a link. In my experience all hosts, even off shore and the like, remove anything from a DMCA request if the client is unwilling to have the corporate info handed over.

 

[Sutra]

Awesome. Thank you for the in-depth response @miketpowell

I did see the DMCA request they sent, my host forwarded it to me. It was just the online DMCA form to fill out. You mentioned that if they want to sue they'll sue, regardless. That being the case well then shit, I might as well file a counter request.

I did some searching on their site and found that they actually used crowdfunding to get one of their recent projects off the ground - for an amount that I would have expected trivial for them. He gave some numbers so I was able to deduce their readership numbers. Also looked a bit at the FB page. All that taken into consideration, it doesn't sound like they have the type of money I thought they did. Nor enough money to justify the cost of a lawsuit. Of course, that's just speculation on my part. But that combined with everything else...well, I'm going with the counter claim.

Time to grab nuts and move forward.

 

[juliantrueflynn]

@miketpowell Yup, dug these up while procrastinating:

• Mentions how providers would reject their DMCA requests. Source, Wikipedia article about it too.
• "--He was not able to collect the judgment, however, because the domain registrar Tucowsrefused to identify the owner of the company that had sent the spam." Dan Balsam court case.
• Not DMCA but interesting for PIPCU requests and registrars denying them. Source
• Not a registrar/host but Hotfile.com court case is relevant because for over 10 million DMCA requests they only acted on 43. Source

This is not to mention too a lot of hosts will just make it friggin' difficult to even get them a DMCA request. From not even responding, having people mail inquiries, etc.

I can dig up more but it's really bad how much I'm procrastinating this afternoon on some coding.

 

[Sutra]

Pair wasn't clear in their instructions of the counter process. Sounds like I would need to file the counter but still take down the page and keep it down for 10 days until I hear back from them. I called them to verify and the guy checked with his supervisor then came back to me and said all correspondence for this should be via email. I said, ok, but what steps should I take. I don't need to correspond. Do I need to take down the page after I file the counter? He replied, "All correspondence must be done through email. Thank you". Then hung up on me.

Fuckface.

I just sent the counter. Hopefully they respond soon.

 

[Sutra]

Heard back and they require me to disable the page for 10 days. They said if I don't disable the page by tomorrow then they will be forced to take my entire site offline. If they don't get a court order before 10 days are up, I can place the page back up. So I just disabled the paged and redirected to a different, though somewhat relevant article.

@miketpowell Is this standard policy of other hosts? Because again, anyone can file a claim. And in the BEST CASE scenario, the page will be taken down for 10 days until hearing back about a court order. Is that really how this process works within the industry or is Pair just retarded?

@juliantrueflynn How would Knownhost handle something like this?

 

[Andrewkar]

Is this standard policy of other hosts? Because again, anyone can file a claim. And in the BEST CASE scenario, the page will be taken down for 10 days until hearing back about a court order. Is that really how this process works within the industry or is Pair just retarded?

Anyone can, but your article IS a copy of your competitor's article. It's not word for word, but the idea in general is the same, and they went after you (probably they just testing waters now). If your writer was more creative (skilled or knowledgeable on the topic) he would come up with something original and there would be no ground for their action. I would say f*** it, go ahead and create a new article, original and better one, and kill them...

Copyscape for this kind of stuff is useless, for a dumb machine that Copyscape algorithm is, those articles can be different, but not for human reader.

 

[built]

Anyone can, but your article IS a copy of your competitor's article. It's not word for word, but the idea in general is the same, and they went after you (probably they just testing waters now). If your writer was more creative (skilled or knowledgeable on the topic) he would come up with something original and there would be no ground for their action. I would say f*** it, go ahead and create a new article, original and better one, and kill them...

Copyscape for this kind of stuff is useless, for a dumb machine that Copyscape algorithm is, those articles can be different, but not for human reader.

I agree with this, you did copy their article. I would just remove it because its not worth all that trouble