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Posted: Fri Feb 17, 2017 9:37 pm
I currently sell on Etsy and was on my emails when I started getting DMCA notices that my items were been pulled because a competitor was issuing notices on all my listings! After about 7 notices I pulled all my listings.
Now this was simply a bogus claim - and my listings are similar items but in no way copied. I have issued counter DMCA's and am about half way through the 10 working days before I can put my items back.
My question is, can this person simply hit me again repeatedly with DMCA's to get my items pulled? I am in the UK and they are in the US making going legal even harder. But in saying that, this is a little part-time money - not something I could afford to be getting lawyers in for!
Appreciate any advice!
Posted: Sat Feb 18, 2017 9:00 am
The simple answer is, yes, they can keep issuing DMCA notices and the only way to ultimately resolve the issue is before a court. Given that that would be very expensive, not to say difficult, since you are based in the UK, it highlights the weakness of the DMCA system to effectively counter malicious notices of this type.
In theory Section 512(f) provides a sanction against false claims:
â€”Any person who knowingly materially misrepresents under this sectionâ€”
- (1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneysâ€™ fees, incurred by the alleged infringer, by any copyright owner or copyright ownerâ€™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.
but the US Courts have yet to use this provision in a way that deters false claims.
While it may seem that Etsy should decide these sorts of dispute, the law doesn't support that. As long as they comply with the letter of the law they avoid liability for any actual infringement where it occurs, and given the amount of DMCA notices they have to deal with, they cannot afford to spend time and resources trying to sort the genuine from the false.
As you will have been supplied with the name and address of the person or company who has issued the DMCA notice, I suggest you write to them explaining your case and see what happens.
Posted: Sat Feb 18, 2017 11:44 am
Thanks! Appreciate the reply! I have got the persons email and they are the shop in direct competition with me. It's such an obvious bogus claim I think there is little I can do. Maybe they will back off one my listings are back. The things they claim copyright on were listing text. The only similarities though were generic terms and phrases that anyone selling would use. Dmca seems like such a good idea, but has major flaws for people hit by bogus claims.