What to do if someone files a false DMCA counter-claim?

[jackoftrades123]

What is the name of your state (only U.S. law)? NY

Someone took my pictures off of facebook - these were pictures of me and taken by me and were available no where else other than my personal facebook profile. They posted them on their blog and when I filed a DMCA notice the host took them down. A few days later the infringer filed a counter-notice. I spoke to some lawyers who say the law is on my side. What are my options in this case? I understand filing a false DMCA counter-notice opens the defendant to pay for my legal fees. Are there any other damages I can claim?

 

[asiny]

What are my options in this case?

Keep your argument the same as what you originally filed with the host.

I understand filing a false DMCA counter-notice opens the defendant to pay for my legal fees. Are there any other damages I can claim?

No.
As a matter of interest - what exactly did they counter-claim?

 

[quincy]

You filed a DMCA notice and the ISP removed the infringing content. The alleged infringer has disputed the infringement, and objected to the removal of content from his blog, by filing a counter-notice. Now it is up to you to file a lawsuit against the infringer, and you must do this within 14 days from the time you received the counter-notice - otherwise the content can be returned to its online blog location.

Anyone who files a false DMCA notice or counter-notice can be held civilly liable for any losses suffered as a result of the actions taken by the ISP in response to the notices. Losses can include economic losses as well as court costs and attorney fees incurred as a result of the "misrepresentation" (although the Court in Lenz v Universal Music Corp, et al limited recovery to pre-litigation court/attorney expenses).

See 17 USC Section 512, especially §512(f).

DMCA takedown notices and counter-notices are filed "under penalty of perjury," so filing a false notice can also, potentially, result in criminal sanctions.

What losses have you suffered as a result of your photos being taken, without authorization, from your Facebook page to be republished on the blog? What exactly was the blogger doing with these photos of you?

 

[jackoftrades123]

Keep your argument the same as what you originally filed with the host.

In my suit? Would they be liable for attorney's fees?


No.
As a matter of interest - what exactly did they counter-claim?[/QUOTE]

They quoted a line from the Facebook TOS which stated that information posted under the everyone privacy setting means you allow everyone to access and use the information and associate it with you.

Besides the fact that that "information" clearly does not refer to IP, they ignored the other places in the TOS which states that you retain the copyright to images you post on facebook.

 

[You Are Guilty]

You filed a DMCA notice and the ISP removed the infringing content. The alleged infringer has disputed the infringement, and objected to the removal of content from his blog, by filing a counter-notice. Now it is up to you to file a lawsuit against the infringer, and you must do this within 14 days from the time you received the counter-notice - otherwise the content can be returned to its online blog location.

Anyone who files a false DMCA notice or counter-notice can be held civilly liable for any losses suffered as a result of the actions taken by the ISP in response to the notices. Losses can include economic losses as well as court costs and attorney fees incurred as a result of the "misrepresentation" (although the Court in Lenz v Universal Music Corp, et al limited recovery to pre-litigation court/attorney expenses).

See 17 USC Section 512, especially §512(f).

DMCA takedown notices and counter-notices are filed "under penalty of perjury," so filing a false notice can also, potentially, result in criminal sanctions.

What losses have you suffered as a result of your photos being taken, without authorization, from your Facebook page to be republished on the blog? What exactly was the blogger doing with these photos of you?

Good call with Lentz, since it's pretty much the only "guidance" out there, but if you look, Lentz was a pre-answer motion to dismiss, which only looks to the sufficiency of the allegations (in this instance, whether alleging various expenses, including attorneys' fees, constituted "damages" under the DCMA). Although the court said it was sufficient, there was a lot of wiggle room left there as to whether they would actually be compensable. I have not yet seen any case which is definitive either way though.

 

[quincy]

Lenz v Universal Music Corp, et al can be accessed at Lenz v. Universal | Electronic Frontier Foundation.

Reading through the case as it stands may aide you, jackoftrades123, in determining where you may stand with the notice/counter-notice and your ability to recover court costs and attorney fees in your situation.

As a note, your photos must be registered with the U.S. Copyright Office prior to bringing a copyright infringement suit against the blogger in federal court.