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DMCA Filed - How long to sue?

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DigitalChase

Junior Member
What is the name of your state (only U.S. law)? Texas

I recently sent a DMCA to a website owner and their hosting company. The hosting company stated that they forwarded it to the owner but nothing ever got done and my content is still there.

Someone said I only had a certain amount of time to file a lawsuit about this since I had already sent a DMCA complaint. Can someone shed some light on this? How long do I have to file a lawsuit after the DMCA is submitted?

Also, any direct quotes of the law regarding your answer would be much appreciated.

Thanks!
 


quincy

Senior Member
If your copyrighted material was not removed from its place online after the website received the notice of infringement, and if you have not received any response from the infringer (ie, a counternotice), then you have three years from the date you discovered your material to file an infringement suit. Included in the suit can be the webhost as co-defendant.

Had the website removed your copyrighted material, and had the infringer responded to the takedown notice with a counternotice (claiming the material did not infringe on your rights), then you would have had 14 days to file suit before the material was restored to its online location.
 

DigitalChase

Junior Member
That's the info I was looking for! Thanks!

I knew about the 3 year mark, but wasn't aware of the other time limit for a counternotice.

If they end up removing the content before I file a lawsuit, but never send a counternotice, am I still able to sue?

I know anyone can sue anyone, but would that actually work?
 

quincy

Senior Member
If your copyrighted work was infringed, you can sue the person who infringed your work even if the copyrighted material is removed from its online location or access to the copyrighted material is disabled.

You will need to have your work registered prior to pursuing your infringement lawsuit in court, if your work is not registered with the Copyright Office already.

For an ISP or a webhost to qualify for "safe harbor" protection under the DMCA, one of the requirements (among several) is that the ISP or webhost must "expeditiously" remove the copyrighted material from its location online, or disable access to the material, upon receipt of a takedown notice from the copyright holder. When an ISP or webhost receives a takedown notice, they can choose to benefit from the safe harbor provided by the DMCA and promptly remove the infringing material, or they can leave it in place and risk being found vicariously or contributorily liable for the infringement.

The webhost/ISP does not need to notify the alleged infringer of the receipt of the takedown notice prior to removal of the copyrighted material, but they must notify the alleged infringer after the material has been removed, to allow the alleged infringer the opportunity to file a counter-notice, disputing the infringement and the removal of the material from its place online.

The alleged infringer can also ignore the notification received, not file a counter-notice, and not object to the removal of the material. The alleged infringer can hope that the copyright holder is satisfied with the material's removal from the website and won't seek out his identity (if not already known), and won't send a settlement notice demanding compensation, and won't sue for statutory damages (if the work was registered prior to the infringement), or won't sue for any profits and losses (if the work was not registered prior to the infringement).

Whether you decide to sue just the single individual for infringement, or whether you decide to name the webhost and website owner as co-defendants, is something you should discuss with an attorney in your area, who can also review all of the facts particular to your situation.

Good luck.
 
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