DMCA Takedown notice - what does my client do now?
January 12, 2015 3:20 PM   Subscribe

YANML or even HL but tossing this out anyway: My client took an online course with a specific teacher. She (client) later taught a course on the same topic - a general topic where you can find any number of people teaching this non-copyrighted material (let's say she's teaching personal development skills)) Client receives notice from former teacher that she's using copyrighted material - which she's not - and that the agreement she signed for the class she took stated she couldn't use the material (which she's not) Today she gets a DMCA notice.

It's a general topic and while what my client IS teaching is similar, she has written up all her own materials, wrote her own copy for the website and has several significantly different things in her class that the original teacher did not.

We're trying to figure out what she needs to do as the teacher is being quite stubborn over it.

"now she's telling me that she talked to her lawyer before she messaged me and that he told her that it would be a breach of contract for me to teach my class . And she's saying that the disclaimer on her website specifically prohibits her students from teaching any of these subjects. She said I could reword my sales page and that would make things better. Not sure how I could though, it isn't worded the same as hers"

How is it that someone can claim copyright over a common thing? The conversation my client had with the teacher earlier (above) was prior to the DMCA notice today.

TL;DR: my client's content is original, the flow of the course is original and yet former teacher is claiming copyright issues. This is a common topic taught by many. If things are different, how is it a copyright violation? And what should my client do?

IANAL either, obvs.
posted by Mysticalchick to Computers & Internet (13 answers total) 3 users marked this as a favorite
Could you clarify in what sense this person is your client? Are you personally involved in the either the classes or website?
posted by a box and a stick and a string and a bear at 3:26 PM on January 12, 2015 [1 favorite]

Response by poster: I am a business coach and my client is the person in question. I am not personally involved but she asked me for guidance on the issue.
posted by Mysticalchick at 3:29 PM on January 12, 2015

Best answer: Your client should ask for a detailed description of the infringement. Some boilerplate for you:
Please provide in as much detail as possible:

  • Specific identification of the portions of your work you claim are being infringed upon. If this material exists online, please provide the URL, with sufficient detail so to facilitate finding the material and verifying its existence.
  • Identification of the specific material that is claimed to be infringing, including its location on any page identified by URL, with sufficient detail so to facilitate finding the material and verifying its existence.
  • Contact information for you or your representing attorney, including name, address, telephone number, and email address.
  • A statement by you or your representing attorney that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or law.
  • A statement by you or your representing attorney that the above information in your Notice is accurate, under penalty of perjury, and that, also under penalty of perjury, you are the copyright owner or authorized to act on the copyright owner’s behalf.
  • A physical or electronic signature of the owner of the copyright that has been allegedly infringed or a person authorized to act on behalf of the owner.

  • If all this is provided, remedy anything that is actually infringing and reject the rest. If an actual legal suit is filed against your client, then your client has no choice but to lawyer up.
    posted by erst at 3:40 PM on January 12, 2015 [4 favorites]

    Best answer: Your client needs a lawyer, frankly.

    IANYL, but DMCA protects the expression of an idea, not the ideas themselves; if your client actually wrote all the text and prepared all the material, the original instructor has no valid copyright claim.

    If the original instructor is claiming breach of contract, that's a different legal issue.

    She can sit and wait to see if the actual legal demand is forthcoming.

    But if the former teacher files a DCMA claim with your client's webhost, she should be prepared to defend herself with her hosting company. That's a common tactic, and it takes very little to send a DCMA claim, and many webhosts accept them on face value.
    posted by suelac at 3:41 PM on January 12, 2015 [3 favorites]

    Pretty much every state has a lawyer referral hotline that will guide this person to an attorney who does practice in this area. Most will do a free consult, some even over the phone. But if not, it's probably worth a couple hundred bucks just to see where they stand and maybe for a "get bent" letter if it turns out this DMCA notice is BS.
    posted by mrbigmuscles at 3:42 PM on January 12, 2015

    Your client needs a lawyer, frankly.

    Absolutely. In addition to the professional referral hotline mrbigmuscles refers to, there may be a law school near your client with a student clinic focusing in this area - have her check the local law school websites.
    posted by Joey Buttafoucault at 3:58 PM on January 12, 2015

    I would find it odd that I was being contacted by the individual and not the lawyer. I would probably assume that there isn't actually an lawyer, since the lawyer would likely have told his client not to contact your client directly, in case she said something that hurt their case. Your client should probably get her own lawyer to reply to this nonsense.
    posted by Blue Jello Elf at 4:00 PM on January 12, 2015 [9 favorites]

    The letter from your clients lawyer will probably end the matter. Real legal letters are imposing, do find one with experience. Unfortunately a letter like that costs real money.
    posted by sammyo at 5:16 PM on January 12, 2015

    Best answer: I'd contact Ken White and see if he's willing to send up a PopeHat signal. Those guys love hearing about bogus DMCA notices.
    posted by bq at 5:58 PM on January 12, 2015

    Best answer: IANAL, and your client should do a bit of research about these issues before finding a couple of attorneys. No need to actually hire one unless she pursues it. Because I doubt she has actually spoken to her lawyer, or if she did she misrepresented your client, I'd respond with:

    Since you are represented by an attorney, any further communication must be from them. I will not respond to you, only to your attorney. There are two things I hope you've been advised of:
    (f) Misrepresentations. - Any person who knowingly materially misrepresents under this section —
    (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 attorneys' fees, incurred by the alleged infringer, by any copyright owner or copyright owner'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.

    posted by Sophont at 6:02 PM on January 12, 2015

    Response by poster: Thanks for all the info - I'm passing it along to my client and she will call a law school clinic tomorrow to discuss the particulars.

    To clarify, my client was first contacted by her former teacher about it and they had several email discussions on it where my client was trying to figure out what, specifically, she was said to have infringed upon.

    Today, she received the DMCA Takedown notice signed by a lawyer on behalf of the former teacher with a very vague comment about what to take down and why, other than it was copyrighted material.

    This is the latest email from the lawyer for the former teacher:

    (From my client): "Her attorney is still emailing me but isn't giving me the specific content that I copied that I asked for except saying her syllabus is her intellectual property and that all (teacher) wants is for me to change the wording on my website but then went on to say "Should the course materials become discoverable during litigation, (teacher) may have several other causes of action aside from breach of contract and copyright infringement."

    Puzzling. Definitely consulting some legal eagles about it. Thank you all so much for your input.
    posted by Mysticalchick at 6:58 PM on January 12, 2015

    I've gotten two take down requests. I told the person to go fuck themselves in each case and it was dropped there. I think I wrote something along the lines of, "I am inclined to tell you to go fuck yourself, but since I actually have a lawyer to do this for me, I would ask you direct all request to Marc Randazza who will tell you to fuck yourself on my behalf."

    I was CCed on the emails and to paraphrase, they read, "I concur with my client's position. Please direct all further correspondence to me." If he ever heard of any other communications I never knew about it.

    $100 for an hour of an IP lawyer's time and this probably goes away.

    bq has a decent idea as well, but Popehat is focused on the larger injustices. The Kens are only going to engage if it seems like there is a larger point to be made.
    posted by cjorgensen at 7:17 PM on January 12, 2015 [8 favorites]

    Might be worth a Google to see if her lawyer is actually a lawyer
    posted by edgeways at 6:35 AM on January 13, 2015 [3 favorites]

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