
Ask HN: How to deal with bullshit DMCA threat ? - emeralddesign
Hello HN,<p>A couple of days ago I released a html theme on a themes site, think ThemeForest. I have hopes it&#x27;s gonna sell rather well, we&#x27;ve been working at it for about 5 months.<p>Another theme developer is threatening that he&#x27;s filing a DMCA takedown on our theme because, he says, we copied code from him, which we didn&#x27;t.<p>I asked him to show proof with code samples, which he didn&#x27;t, and continued his tirade.<p>Our code is absolutely 100% written by us, we use a precompiler, which I think he doesn&#x27;t, we have our own custom framework etc.<p>We are from an Eastern European country, they are Western.<p>1. What can happen if they &quot;file a DMCA&quot; ?<p>2. They say they don&#x27;t need to show us any proof, that they will show that in court.
How can we deal with that, being different countries and all ?<p>Thank you so much for advice HN, it&#x27;s not the first time you are helping me out.<p>PS<p>I&#x27;m currently keeping names and such private, but I might expose them for the douches they are, depending how this plays out.
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burnte
I'm going to take a different tact on this comment. You're European, and I
think you may have an overly inflated concept of what a DMCA notice is,
hopefully this will help.

The DMCA, or digital Millennium copyright Act, was a poorly written overhaul
of US copyright law. It included some smart things, like "safe harbor"
provisions for companies that simply provide a place where users can share
content. These companies aren't actually copyright infringers under the DMCA,
but in exchange for not being liable for user content, they have to comply in
a timely manner with a complaint about copyright infringement. The complaint
is in the form of a DMCA notice, or DMCA complaint.

A DMCA notice is simply a form that someone fills out and gives to a host
complaining about something being hosted that was created by a third party. I
record a TV show, put it on YouTube, the owner of the TV show sends a DMCA
complaint to Youtube, Youtube suspends my video.

There are no judges, administrators, or even legal professionals involved
(although the parties involved may use lawyers to create and reply to DMCA
complaints). There is no government office involved, no DMCA institution. You
or I could go to Youtube and fill out the DMCA complaint form against a
specific video.

And there in lies your problem; any jerk can MAKE a DMCA complaint, and it
doesn't have to be true, there's no prof required at this point. And the way
DMCA noticed work, your stuff gets pulled. That's how the rules work, they
complain, the host pulls it and notifies you, then you are granted the
opportunity to respond. The good news is, the was the DMCA says it's supposed
to work is that if you respond that the DMCA claim is false, then the content
is supposed to be put back up fairly quickly.

I had someone incorrectly make a DMCA claim against a video I had on Youtube.
the video came down, I replied that it was fair use, and the video went right
back up, and no one has complained since.

This guy is going to make a DMCA claim, and you'll have to simply respond that
he's wrong, and your content will go back up. If he insists he's still right,
then he has to sue you, and THEN he has to show prof, and since he can't,
he'll never sue you.

However, if he makes a bogus DMCA claim, you can sue him.
[http://targetlaw.com/consequences-of-filing-a-false-dmca-
tak...](http://targetlaw.com/consequences-of-filing-a-false-dmca-takedown-
request)

~~~
scrabble
If the person who makes the request notifies you in advance, what's to prevent
you from replying, "Well, if you do that, I'm going to file DMCA takedown
requests for all of your content." ?

Note: Just a question because the whole thing seems poorly thought out. Not
actually advocating that as a solution.

~~~
thedufer
Because knowingly filing a false DMCA complaint opens you to lawsuits (and
putting in writing that its a reactive complaint makes it pretty easy to
prove). It may also constitute perjury, which is criminal. IANAL and all that.

~~~
teh_klev
"knowingly filing a false DMCA complaint opens you to lawsuits"

If you're under US jurisdiction.

------
jcr
It seems themeforest.net and themeforest.com are owned by an Australian
company, Envato Pty Ltd. The DMCA is a US law, and luckily, it seems they're
not in the US.

    
    
      $ whois themeforest.net
      Registrant Organization: Envato Pty Ltd
      Registrant Street: PO Box 21177, Little Lonsdale St
      Registrant City: Melbourne
      Registrant State/Province: Victoria
      Registrant Postal Code: VIC 8011
      Registrant Country: AU
      Registrant Phone: +61.390230074
      Registrant Phone Ext:
      Registrant Fax: +61.290183043
      Registrant Fax Ext:
      Registrant Email: domains@envato.com
    

Envato has a page on DMCA takedown notices, but I'm not done reading it yet.
None the less, it seems they may respond to DMCA Takedown Notices.

[http://support.envato.com/index.php?/Knowledgebase/Article/V...](http://support.envato.com/index.php?/Knowledgebase/Article/View/534/99/sending-
a-dmca-takedown-notice)

The important thing is that filing a knowingly false DMCA Takedown Notice can
have legal consequences, both civil (read: monetary) and criminal (read:
prison).

[http://www.aaronkellylaw.com/internet-law/consequences-of-
fi...](http://www.aaronkellylaw.com/internet-law/consequences-of-filing-a-
false-dmca-takedown-request/)

Personally, I'd contact ThemeForest/Envato myself to let them know I'm being
harassed with threats of false complaints before the other guy gets a chance
to file his false complaint.

~~~
emeralddesign
The theme hosting company is not ThemeForest/Envato Thanks for your advice.

As I said, my main concern is I won't be given the opportunity to defend
myself by the DMCA institution.

~~~
emeralddesign
The hosting for the theme marketplace is GODADDY.COM

~~~
jcr
Sorry I was a bit dense and took ThemeForest literally.

Godaddy responds as most US companies do to DMCA Takedown Notices by removing
access to the cited content. By law, they must disable access if they receive
a valid takedown request. It would then be up to you to file a "Counter-
Notice" with them, at which point they will enable access to your content
again. The Digital Media Law Project (DMLP) has some useful info on how to
file a Counter-Notice:

[http://www.dmlp.org/legal-guide/responding-dmca-takedown-
not...](http://www.dmlp.org/legal-guide/responding-dmca-takedown-notice-
targeting-your-content)

If you contact GoDaddy first, and inform them about the false threats, they
might consider any takedown request they receive as knowingly false, and not
disable access to your content, and/or well as give you time time to file a
Counter-Notice. It won't hurt to ask them about what you should do, since at
least then you'd have a pre-existing support ticket number to refer to if they
do get a takedown notice.

------
dalek2point3
Check what policy your themes platform has on DMCA requests. Most likely they
are required to take down your theme even if the DMCA request is "bogus". You
might be able to file some sort of counter arguments with your platform, but
till they file a request and the platform takes it down, you should feel free
to ignore it. DMCA requests are directed at the platform, not directly at you.

~~~
emeralddesign
Thanks for your reply!

My main concern is that I won't be given the chance to defend myself by the
DMCA institution.

~~~
comex
According to the DMCA, in order to avoid potential liability, the provider is
supposed to take down the content "expeditiously" upon receiving a notice and
not restore it for 10 days, even if you file a counter-notification
immediately. In theory, someone knowingly filing a false claim is then liable
for damages, but good luck collecting on that.

In practice, though, the one time I sent a DMCA notice to a hosting company,
they tried to mediate between me and the site owner rather than immediately
taking anything down.

Note that as far as I know, non-US companies will usually comply with DMCA
requests.

~~~
teh_klev
"Note that as far as I know, non-US companies will usually comply with DMCA
requests."

No they won't if operating outside US jurisdiction. As a UK hoster we won't
and don't recognise DMCA requests. We'll only remove content upon a receipt of
a properly filed request/complaint by English lawyers (I work for a company
registered in England).

------
espringe
Just flat out ignore him, until he actually takes some sort of action.

------
todbur
Here is what should happen.

1\. The person files a DMCA notice to the theme website.

2\. The theme website takes down your theme and notifies you.

3\. You file a counterclaim where you assert that you are the rightful
copyright owner of the theme.

4\. The theme website puts your theme back up.

5\. The person can choose to sue you which costs them money and is probably
difficult for them to do.

One little thing I recommend you do if the DMCA notice does go through is make
sure a copy of the takedown request is sent to
[https://www.chillingeffects.org/](https://www.chillingeffects.org/). This is
what google, twitter, github and a lot of tech companies large and small do.
The reasoning is that a lot of people use the DMCA as way to harass websites
and one small bit of recourse you have is to publicly shame them.

~~~
Mandatum
That's not an ideal process. Shouldn't they have to provide proof to their
claim? En mass it's probably not a good solution.

~~~
todbur
I'm just speaking to the way the process works in law, but it would actually
be less ideal if they had to provide proof of their claim. Why? Well, if proof
were required then a court would have to be involved at the outset, rather
than after the notice is put back up.

------
devicenull
Read up on the actual DMCA procedure, if the hosting company is in the US. You
can file a counter-claim if they actually end up receiving a valid DMCA.

------
zaroth
If someone who does real business on ThemeForest is threatening you with a
DMCA, then they are putting themselves at a huge liability if they file a
false claim against you.

Unfortunately, more than likely it's some nobody on the store, trying to get
you kicked off. Nothing to lose, everything to gain? I'm sorry you've been
wrongly targeted, hopefully it's a misunderstanding and not a shake down.

ThemeForest should let you make your case, then put it back up. If I
understand DMCA correctly, if you asset the content is in fact yours, they can
safely put it up and keep the safe harbor.

------
robinhoodexe
Ignore him, it's simple as that.

------
benologist
If he keeps bothering you and there's no merit to his claims report him as
harassing you.

