DMCA Takedown Notice for Online Copyright Infringement ➲ DRAFT

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What are your legal rights if your copyright is infringed online by a USA Hosted website?

If you as the copyright owner or exclusive licensee of the copyright material or either's agent reasonably believe a USA Hosted website is infringing your copyright, you may issue a Digital Millennium Copyright Act (DMCA) Takedown Notice to the "Copyright Agent" of the USA based Internet Service Provider (ISP) who is hosting the website.

A breach of your copyright may include:

❌ A website posting your copyright material without your permission to do so;

❌ A website using your copyright picture, song, film or other work; +/or

❌ A website allowing its users to illegally access or download your copyright material.

Upon receipt of your DMCA Takedown Notice the Copyright Agent of the Internet Service Provider (ISP) will:

1️⃣ Immediately remove or block access to the infringing content; and then

2️⃣ Issue an Infringement Notice to the website owner or user who posted the material.

Step 1️⃣: Ask Nicely?

We recommend you contact the infringing website and make a direct request for the removal of the infringing material.

The website may not be aware they are breaching your copyright and once placed on notice, may promptly comply with your request.  

If the website refuses to take any action, then we recommend you ask the website owner:

Why do you think you have a legal right or permission to use the infringing material?

If the website owner fails to provide an adequate response, you can then consider whether to issue a Takedown Notice.

Step 2️⃣: Confirm the alleged copyright infringing website is hosted in the USA?

In order to confirm the USA based Internet Service Provider (ISP) is hosting the alleged copyright infringing website you can the following free search service:

➲ whoishostingthis? 🔎 Discover who is hosting any website

Step 3️⃣: Select the relevant Takedown Notice based on where the website is hosted

For websites hosted in:

⚖️ Australia ➲ Use our Takedown Notice for Online Copyright Infringement [Australian Hosted Website];

⚖️ USA ➲ Use this document which automatically generates a DRAFT Digital Millennium Copyright Act (DMCA) Takedown Notice + obtain professional legal advice from a practising USA Attorney before deciding whether to proceed.

⚖️ Elsewhere ➲ We recommend you obtain professional legal advice directly from a lawyer with knowledge of the relevant foreign jurisdiction.

Using the Digital Millennium Copyright Act (DMCA) Takedown Notice procedure

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are being hosted by overseas service providers which are often based in the USA.

See our FAQ ➲ For a USA Hosted Website: How does the DMCA Takedown Notice Procedure work?

DMCA Takedown Notice Checklist

See our FAQ ➲ What do I need to do before deciding whether to send a DMCA Takedown Notice for Online Copyright Infringement [USA Hosted Website]?

What happens when the DMCA takedown notice is received by the Internet Service Provider (ISP)?

Upon receipt of the Digital Millennium Copyright Act (DMCA) Takedown Notice the Internet Service Provider (ISP) must promptly remove, or disable access to, the copyrighted material.

What is a dmca counter-notice?

See our FAQ ➲ For a USA Hosted Website: What is a DMCA Counter Notice?

Important: If the website can prove that your Digital Millennium Copyright Act (DMCA) Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it is a Federal Crime to swear a false statement of good faith in a Digital Millennium Copyright Act (DMCA) Takedown Notice which is required to be signed under penalty of perjury.

Note: More information about the DMCA Takedown + DMCA Counter-Notice process may be found here.

Credits:

Social Media Sharing Image courtesy of Markus Winkler on Unsplash

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What are the benefits of buying legal documents from us?

The majority of online Australian Legal Document providers are not law firms!

Whilst it is acknowledged that the legal document templates provided by the majority of [non law-firm] Australian legal document providers will generally have been prepared by lawyers and that the templates they sell are updated from time to time as required by legislative changes.

This does not change the fact that you are not dealing directly with a law firm.

In order to understand what this means from a practical perspective you need to ask the following questions …

What happens?

🧩 If and when you have a legal question?

🧩 If the other party wants to negotiate amendments to the legal document?

🧩 If the legal document does not meet all of the requirements of your specific facts and circumstances?

🧩 If there is a mistake in the legal document?

Lastly, what happens if you are not directly involved in the creation of the legal document?

🧩 What if your accountant, tax agent or financial advisor uses a [non-law firm] online legal document service on your behalf?

To help you answer this question, please read our FAQ: If I create a legal document for my client on your law firm’s website am I giving legal advice or am I a "mere scribe"?

General Answer

A general answer is that online [non-law firm] Australian Legal Document providers are unable to assist clients directly, as they are unable to provide legal advice.

Certain [non-law firm] providers have adopted a business model whereby they earn a substantial ongoing 12 months+ plus referral fee for directing a client to a large directory of law firms who can assist.

This referral fee is charged to the law firm, who may decide to expense it as a marketing cost.

We submit that one way or another, it is ultimately the client who pays for the cost of the referral fee as it increases the cost of doing business for the law firm providing the service to them.

Feedback obtained directly from businesses who have used certain [non-law firm] online services

The valuable feedback we have  obtained is that:

❌ The quality of the online legal documents are basic, non-adaptive templates; such that

❌ The client is more often than not, required to seek assistance from a law firm in order to ensure their legal requirements are met.

As lawyers are required to undertake client interviews and make manual amendments to the legal documents, the final cost ends up much higher than the client could have anticipated, especially when the original online legal document was given away for free or at a nominal cost.

These kinds of business models may not rise to the level of bait & switch, however they may be found to constitute misleading and deceptive conduct.

In our submission, clients appear to be lead to believe that in the majority of cases they will be able to use the standard online documents without the need to engage a law firm to assist, when in actual fact this is not the case.

What are the benefits of purchasing legal documents directly from Blue Ocean Law Group?

When you purchase online legal documents directly from us, we have every incentive to ensure the quality of the online legal documents provided are as high as possible, and that you have all your questions answered.

List of Benefits:

✅ Our law firm already has a copy of your online responses so we can assist quickly and cost effectively.

✅ 1-stop shop. There is no need to wade through a directory of different law firms each time.

✅ Professional Indemnity Insurance (when you engage us for legal advice);

✅ Higher quality automatically tailored legal documents using Embedded Lawyer-Logic;

✅ Deal directly with a law firm, no need for middlemen;

✅ No referral fees built into the business model;

✅ Lower overall legal costs;

✅ Legal document delivered directly from our .law web domain so you know we created the legal document;

✅ Legal Professional Privilege; and

✅ Enhanced Confidentiality.

✅ Blue Ocean Law Group (as far as we are aware) are currently the only Australian law firm providing you with the option to create more than 140+ Personal & Business Legal Documents online using our ⚖️ [Self-Service] and/or [Lawyer-Assisted] services.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a Free Legal Health Check?

What is a Free Legal Health Check? ✅

Our Legal Health Check is a process that helps you identify + prioritise your individual + business (if relevant) legal needs.

How does it work?

1️⃣ Complete our Intelligent Questionnaire:

You will be asked to provide information about your personal and/or business circumstances;

2️⃣ Automated Report:

The process uses inbuilt Embedded Lawyer-Logic™ to help you identify key legal risks + concerns and prioritise solutions.

A customised (jargon-free) report is generated in plain english with actionable recommendations.

3️⃣ Deliver Solutions:

You can then consider the information in your own time, and when convenient, select the most appropriate self-service legal documents from our online 24/7 portal or reach out to our legal team to discuss your options in more detail.

What does it cover?

🧩 Estate planning;

🧩 Marriage and de facto relationships;

🧩 Tax structuring;

🧩 Dispute avoidance/resolution;

🧩 Investment properties;

🧩 Business sale/purchase;

🧩 Business financing;

🧩 Co-ownership arrangements;

🧩 Managing staff;

🧩 Commercial terms;

🧩 Websites and intellectual property;

🧩 Regulatory compliance.

Why go through this process?

This is an amazing way to quickly + proactively identify legal risks + opportunities to get your legal affairs in order!

Achieve Zen-like “peace of mind” knowing your legal affairs are in order

Our Buccaneer Package is designed for individuals + includes our constantly expanding library of [Self-Service] personal legal documents.

It is compelling value with pricing at less than $1 per day which entitles you to access heavily discounted [members only] prices.

You could save thousands $$$ on your legal bills!

Our Yachtsman Package designed for business owners includes our constantly expanding library of [Self-Service] personal + business legal documents.

It is compelling value with pricing at circa $3.50 per day [equivalent to the price of a cup of tea or coffee!] which entitles you to access heavily discounted [members only] prices.

You could save thousands $$$ on your personal + business legal spend!

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

What is Embedded Lawyer-Logic + how does it work?

What is Embedded Lawyer-Logic™?

Think of Embedded Lawyer-Logic as your way of gaining 24/7/365 access to the best legal minds in the relevant area of law to guide you to instantly generate high quality legal documents, or an initial draft for review by our legal team.

More than 1000+ Australian lawyers use this industry leading automated legal document generation solution.

Step 1️⃣: Information Gathering

Our intelligent online questionnaire adapts to your answers and only asks relevant questions.

Simply follow the guidance and enter the requested information about your matter.

Step 2️⃣: Document Assembly

The information is then sent to our back-end legal document generation engine, which follows a matrix of algorithms to make decisions about what should be in your legal document, just as an expert human lawyer would do.

The engine then draws from an enormous body of content to assemble a top-tier quality legal document that’s tailored to your situation + requirements.

Our Embedded Lawyer-Logic™ technology includes numerous quality control checks + automatic error-correction, massively reducing the risk of human error.

Step 3️⃣: Document Delivery

The finished document is then emailed to you in PDF format, ready to print and sign.

Optional: Lawyer Review/Assistance

Your answers to the online questionnaire and a copy of the finished document in both Word + PDF formats are automatically forwarded to our legal team.

If we notice anything out of-the-ordinary we will contact you to discuss.

If you are a subscribed member or opt for paid Lawyer-Assistance, we will use the allocated time to assist to clarify and resolve any questions you may have.

Optional: Full Service

If your matter is complex, high risk or you have never been involved in legal matters before, we highly recommend you opt for our Full Service.

Our legal team will contact you and assist you throughout the entire process.

If you are a subscribed member the cost for the time spent by our legal team to assist you is heavily discounted.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

When should I reach out to speak to your legal team?

Our [Self-Service] legal documents are designed to be completed "without the intervention of a lawyer".

This approach will be appropriate for the majority of routine legal matters, where you are experienced and have learnt what needs to be considered and have gained experience in using our 24/7 online document portal to generate your legal documents instantly.

Some routine matters maybe totally new to you (meaning that you will have questions and we recommend you select our [Lawyer-Assisted] service).

Other matters maybe unusually complex, or of such high-value or risk that involving our legal team is the prudent course to take.

For these matters we recommend you select our [Full Service] option.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

What does the Lawyer-Assisted service include?

Your upgrade to our [Lawyer-Assisted] Service includes …

⚖️ Professional Indemnity (Limited Liability) by a scheme approved under Professional Standards Legislation;

⚖️ Access to Professional Fee Funding* / Disbursement Fee Funding / Family Law Funding (subject to approval by QuickFee our external legal finance provider);

✅ Allocated Time included to understand your circumstances + objectives, answer your queries + provide legal advice & make recommendations regarding alternative/additional options; and

✅ Create your standardised Legal Document based on your instructions.

Plus [+] Where Appropriate (at no additional charge)

⚖️ Use of proprietary fonts to maximise fraud prevention;

⚖️ Use of our Law Firm Letterhead;

➲  Send your Legal Document for electronic signature/s; and/or

🔒 Application of Trax Print Legal Document Security Technology for Fraud + Litigation Prevention.

* More Information about Professional Fee Funding:

Our firm has partnered with QuickFee and Splitit to provide you with an interest free payment option. While we remain your service provider, the payment method is provided by QuickFee, a specialist payments provider for professional firms.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Is the Legal Documents Portal Secure?

Yes we use the highest grade web-based security available 4096-bit SSL encryption

Our Legal Documents Portal uses 4096-bit SSL encryption.

A Future Proof Security Solution

The following has been extracted from a JScape's website article answering the question: "Should we start using 4096 bit …?"

In case you're curious where we got the idea of 2048-bit encryption keys being safe to use until 2030, check out the NIST Special Publication 800-57 Part1.
In Table 2 of that document, it says 2048-bit RSA keys are roughly equivalent to a Security Strength of 112.
Security strength is simply a number associated with the amount of work required to break a cryptographic algorithm.
Basically, the higher that number, the greater the amount of work required.
A future proof security solution can mitigate the risk of cyber threats.
We know that cyber criminals are always one step ahead of security professionals, so we're not 100% sure 2048-bit keys are going to remain unbreakable before 2030.

How secure is 4096-bit encryption?

It was once said:

It would take the combined processing power of every computer in the world thousands of years to crack 4096-bit encryption.

You could be the weakest link. Be Vigilant!

Hackers will always look for the weakest link, which is usually a person who makes an error which opens up a gap in an otherwise secure system.

In a more general context (outside of encrypted secure website traffic/data) it has also been said:

Data with 4096-bit encryption (only protected by a password) could still be compromised within seconds.
How? Human error.
Easy pass-phrase, written down password, re-used password... etc. basically, always be on the lookout for the weakest link.
Trust the technology, but never trust the weak link - the user!

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Why does Blue Ocean Law Group℠ use a *.law website domain?

What is a *.law web domain?

⚖️ *.law is a top-level-domain (TLD) that aims to:

Promote trust in the professional legal community by creating a:

✅ Verified;

✅ Exclusive; and

✅ Reserved online space in which only accredited lawyers and law firms can establish a comprehensive digital brand.

✅ Website users can have confidence they are dealing with an authorised and licensed lawyer/law firm.

✅ *.law offers effective branding to those in the legal community, with the ability to secure a domain name that clearly communicates who you are + the legal resources you provide.

All about *.law domain names

Source: join.law - Why *.law?

Creating Legal Docs for clients. Is this giving legal advice?

When you create Legal Docs for Clients. Is this considered giving legal advice? or is your role that of a mere scribe?

If your role is merely that of a "scribe or scrivener" as outlined below it is unlikely you would be deemed to be providing legal advice or engaging in the practice of law.

Caution: Some Online Legal Documents have evolved!

Unfortunately this is not as easy as it once was … when online legal document templates were all static "fill in the blanks" one-size-fits-all templates.

Increasingly, the capabilities + complexities of legal document automation have evolved to cater to an ever widening range of facts and conditions.

Using the complex design + incorporation of what we call Embedded-Lawyer Logic it is no longer possible to avoid the automated tailoring of the online legal document to suit the client's circumstances + legal needs.

They are designed to produce a quality bespoke legal document just like a lawyer does.

The use of Embedded-Lawyer-Logic™ in the online process:

✅ Is now very similar to a client being interviewed by a lawyer;

✅ It drills down to ask the same questions and provide the same options a highly experienced + competent lawyer is required to do.

As a result the draft legal document created now has the potential to vary significantly based on the responses provided by the client.

We have now progressed to the point that the new normal online process is designed to cause your role to fall outside of the role of a "scribe or scrivener" alluded to below.

In the leading case on this issue Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184; 35 WAR 59 (Simmonds J) noted at para. [152] that Brinsden J in Barristers Board v Palm Management Pty Ltd [1984] WAR 101 referred to Re Matthews (1938) 79 P 2d 535, apparently with approval, as follows at para. [108]*:

The court went on to say that where an instrument is to be shaped from a mass of facts and conditions, the legal effect of which must be carefully determined by a mind trained in the existing law in order to ensure a specific result and to guard against others, more than the knowledge of the layman is required and a charge for such services brings it definitely within the term 'practice of the law' [emphasis added].

How to limit your role to that of a "scribe or scrivener"?

Therefore, we strongly recommend that you advise your client to either:

✅ Create the draft legal document themselves + ensure independent legal advice is sought from our legal team prior to negotiation and execution; or

✅ Instruct you to create the legal documents using our Lawyer-Assisted option.

Doing this ensures your role is clearly limited to that of a "scribe or scrivener".

Our legal team will then take the responsibility for reviewing your client's individual circumstances together with the draft legal document in order to provide your client with the relevant legal advice, ensure your client understands their legal position and options, and to propose and make any required amendments to the legal document based on your client's instructions.

What is a "mere scribe or scrivener"?

In Legal Practice Board v Computer Accounting and Tax Pty Ltd [supra]*:

… the court held that work of the mere clerical kind, such as filling out of skeletal blanks or drawing instruments of generally recognised and stereotype forms effectuating the conveyance or encumbrance of property, such as a simple deed or mortgage not involving the determination of the legal effect of special facts and conditions, should be generally regarded as the legitimate right of any layman because it involves nothing more or less than the clerical operations of the now almost obsolete scrivener (emphasis added).
(The scrivener was eliminated in England by the 1804 Act.).

The view of the Institute of Chartered Accountants in Australia ... ^

Timely reminder

The 2007 case of the Legal Practice Board v. Computer Accounting and Tax Pty Ltd* serves as a timely reminder to members that there are legislative provisions in each state and territory which prohibit a person who is not a legal practitioner from engaging in legal practice.
This prohibition is mirrored in the Institute’s regulations relating to public practice (regulation 1207).
However, there are differences between the jurisdictions as to how the prohibition is framed.  

Even so, members who use the services of document providers are urged, as a minimum, to:
✅ Use only reputable document providers whose services are backed by competent legal practitioners;
✅ Ensure that they abide by the terms and conditions of the document providers as to the use of the documents and their supply to clients; and
✅ Avoid redrafting of documents to suit the circumstances of individual clients, unless appropriate legal advice is obtained by the relevant parties.

Seek legal advice

The Institute believes that the recent WA case does not require any change to a member's legitimate use of this type of service in accordance with their terms and conditions.
However, if you have any concerns or queries about the use of document providers, you should seek legal advice.

Sources:

* Legal Practice Board v Computer Accounting and Tax Pty Ltd [2007] WASC 184;

^ Extracted from the article: Court case raises issues about preparation of legal documents.

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

How to Verify a Trax Print Protected Document?

How do I Verify the Authenticity of a Trax Print Protected Legal Document?

You can use any of the following Trax Print Document Verification Methods

1️⃣ Double-Click to Verify the Details of the Document

Note: You can find the Trax Print QR Code on the bottom of the first, last or every page, depending upon the preference set by the author of the document.

✅ By way of example, Double-Click on the below sample Trax Print QR Code within the PDF document:

You will be taken to the TraxPrint.com website and a message similar to the following will appear:

2️⃣ Email to Verify the Contents of the Document

The ability to email a document for automated verification has never been done before.

The Trax Print Email Verification Process

✅ Send an email with the PDF document attached to check@blueocean.law

The Trax Print system checks the Trax Code and compares the entire document to the one that was originally protected.

Trax Print will detect even a one pixel difference within a 1000 page document.

❌ If the PDF document is not authentic a reply email rejecting the document will be send back to you.

If the PDF document is authentic, you will receive a reply email with the following attached:

✅ Certificate of Authenticity (including our law firm details & the timestamp of when the document was Trax Print Protected); + 

✅ The Original Trax Print Protected document.

Try it Yourself

🌊 Email check@blueocean.law with any random PDF document attached (that is not Trax Print Protected).

🌊 Then send a second separate email to check@blueocean.law with one of our Trax Print Protected PDF's attached.

For example:

🌊 Download our Trax Print Protected Brochure called Business Legal Essentials attach it to your email.

🌊 In both cases you will automatically be emailed the results!

Note: Blue Ocean Law Group are also notified if one of our Trax Print Protected Documents is verified.

This enables us to take appropriate action if the verification was not authorised.

3️⃣ Scan to Verify the Contents of the Document

✅ Download the free Trax Print App from the iOS AppStore or Android GooglePlay

Register + Sign-in to the App then ✅ Scan the Trax Print QR Code to Verify.

4️⃣ Drag n' Drop to Verify the Contents of the Document

✅ Drag n' Drop the PDF Document File into the designated area.

You will receive an instant response regarding the authenticity of the document.

This feature is coming soon and we aim to make it available via a dedicated page on our website.

Further Reading: Are your Legal + Identity Documents Securely Trax Print Protected to Provide Fraud + Litigation Prevention? ➲ It's a no-brainer!

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

Can I create a Legal Document from my phone?

Yes, you can create a Legal Document from your phone

The below iPhone 12 screen shots demonstrate what we mean by "^anywhere (even from your mobile phone, if necessary)".

iPhone 12: Portrait Mode
iPhone 12: Landscape Mode

Credits:

This FAQ was created by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What to do before sending a DMCA Takedown Notice?

DMCA Takedown Notice Checklist

1️⃣ Does the website hold a legally valid licence to use your copyright material?

Is it possible that your agent mistakenly issued a licence to use your copyright material on your behalf and failed to notify you?

✅ We recommend you always double-check by asking the website for a copy of its legally valid licence to use your copyright material (if they maintain they have one) before considering whether to issue a Digital Millennium Copyright Act (DMCA) Takedown Notice.

2️⃣ Does a "Fair Use" exception apply?

"Fair Use" is a concept used in the US copyright law.

It is a much more flexible, open-ended concept and does not apply in Australia.

In Australia, we use a more limited concept called "Fair Dealing".

See this FAQ: Australian Hosted Website v. USA Hosted Website: Does where the website is hosted make a difference? to learn more about the differences between the two concepts.

The following has been extracted from the Stanford Article, Measuring Fair Use: The Four Factors

The following 4 (arguably 5) factors are relevant in deciding whether the dealing is fair using a Balancing Test:

➲ The Transformative Factor: Purpose and Character of the Use,

➲ The Nature of the Copyrighted Work;

➲ Effect of the Dealing on the Potential Market/value of the work;

➲ Amount and substance copied relative to the whole; and the

➲ The "Fifth" Fair Use Factor: Are you good or bad?

3️⃣ Always ensure you obtain legal advice from a practising USA Attorney regarding whether a “Fair Use” exception will apply in your situation?

4️⃣ Double-Check the details

You will need to double-check that you have provided sufficient information to enable the Internet Service Provider's (ISP) Copyright Agent to take the required action to quickly identify + remove your copyright material:

For example

✅ The specific infringing URL(s); and

✅ A copy of your copyright material so that it can be easily identified.

If you don’t provide accurate information your Digital Millennium Copyright Act (DMCA) Takedown Notice may not achieve the desired outcome + there will most likely be delays caused by requests for further + better information.

5️⃣ Send the DMCA Takedown Notice To the Internet Service Provider's (ISP) Copyright Agent

The Internet Service Provider (ISP) will usually provide an email address for the delivery of notices.

If not, a hard copy of the Digital Millennium Copyright Act (DMCA) Takedown Notice can be posted to the Internet Service Provider's (ISP) nominated address.

Australian Hosted Website

For websites hosted in Australia a different process is applicable.

See Takedown Notice for Online Copyright Infringement.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a practising USA Attorney for legal advice specifically tailored to your needs & circumstances.

Fair Dealing v. Fair Use ➲ Where the website is hosted matters

Increasingly, Australian websites are hosted in the USA 

Just because a web domain is Australian (for example: *.com.au) does not automatically mean that the website content is hosted on an Australian hosting service.

Increasingly, Australian websites are hosted by Internet Service Providers (ISP) from overseas which are often based in the USA.

Q: Does where the website is hosted makes a difference?

A: Yes.

The Pirate Publisher: A Satirical Commentary on the state of copyright laws (pre 1911 treaty)

The Pirate Publisher—An International Burlesque that has the Longest Run on Record by Joseph Ferdinand Keppler, published as a centrefold in Puck, v. 18, no. 468 (1886 February 24).

A commentary on the state of copyright laws that, prior to a 1911 treaty, generally offered no protection to foreign authors and works.

In the cartoon, hordes of German, Norwegian, French, English, and American authors surround a publisher who republishes their newly-created works without attribution or royalties in a foreign country, as international law then allowed.

Of note is W. S. Gilbert, fifth from the right in the front row, as the many unauthorised or "pirate" productions of H.M.S. Pinafore caused him and Arthur Sullivan to première The Pirates of Penzance in America, to at least gain the initial profits there before anyone else could exploit it, and the title and subject of The Pirates of Penzance is sometimes - although somewhat dubiously in my opinion - considered to partially be a reference to the issue of pirate productions of their works. Other authors shown include Mark Twain, Tennyson, Robert Browning, F. C. Burnand, Émile Zola, Jules Verne, Victorien Sardou, Wilkie Collins, Oliver Wendell Holmes, Sr., as well as many others.

Source: From Wikimedia Commons, the free media repository.

Australian Hosted Website "Fair Dealing" Defence v. USA Hosted Website "Fair Use" Defence

It appears that the state of copyright laws have generally improved to offer more protection to Copyright Owners since 1911.

However, as an example: Due to the 'Fair Dealing" v. "Fair Use" distinction between Australian and the USA, Australian Copyright Material today still may be used + hosted on USA ISP's in situations or for purposes which would breach Australian Copyright law.

See this article Fair Use v. Fair Dealing: How Australian Copyright Law Differs to learn more about the differences between the two concepts.

The following examples have been extracted from the above article to help explain what you can do with "Fair Use" on a US Hosted website that you cannot do with "Fair Dealing" on an Australian Hosted website:

adapting to new technologies

Fair Use is flexible enough to adapt to change.

"For example, in the US, Fair Use made it legal to use a VCR to record television at home in 1984.
In Australia, this wasn’t legal until parliament created a specific exception in 2006 – just about the time VCRs became obsolete."

artistic use

In Australia, it’s legal to use copyright material to create a parody or a critique, but not for purely artistic purposes.

"For example, Australian law makes it largely unlawful for a collage artist to reuse existing copyright material to create something new."

uses that document our experiences

"Media forms a big part of our lives, and when we share our daily experiences, we will often include copyright material in some way.
Without Fair Use, even capturing a poster on a wall behind you when you take a selfie could infringe copyright.
In a famous example, Stephanie Lenz originally had an adorable 29-second clip of her baby dancing to a Prince song removed from YouTube, due to her use of the song.
Stephanie Lenz was able to have the video reposted under US Fair Use law – but an Australian wouldn’t have that right."

technical and non-consumptive uses

"The internet we love today is built on Fair Use.
When search engines crawl the web, making a copy of every page they can in order to help us find relevant information, they’re relying on Fair Use.
Under Australian law, even forwarding an email without permission could be an infringement of copyright."

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.

What is a DMCA Counter-Notice?

What is a Digital Millennium Copyright Act (DMCA) Counter-Notice?

The owner of the USA hosted website who you have alleged is infringing copyright by serving the Internet Service Provider (ISP) with a DMCA Takedown Notice may issue a DMCA Counter-Notice claiming there has been a mistake and they dispute that the material infringes your copyright.

The Internet Service Providers (ISP) must then restore, or enable access to, the copyright material on its system or network; unless you provide notice, within 10-14 business days of receiving the DMCA Counter-Notice, that you or your agent have commenced legal proceedings seeking a Court order to restrain the activity that is claimed to be infringing.

The form of the DMCA Counter-Notice is suggested by the DMCA statute, which can be found at the U.S. Copyright Office's official website: https://www.copyright.gov.

This means that you will need to issue legal proceedings if you want the material to be permanently removed.

It will then be up to the Court to determine whether the publishing of the material on the website is an infringement of copyright or whether there is a valid defence to the claim of infringement of copyright.

Important: If the website can prove that your DMCA Takedown Notice was unfounded then you may be liable for damages or other civil penalties.

Please also be aware that it is a Federal Crime to swear a false statement of good faith in a DMCA Takedown Notice (please refer to the minimum requirements above regarding making your statements under penalty of perjury).

Therefore, we strongly recommend you always have a USA Attorney review your DRAFT before you decide whether to proceed.

Credits:

This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.

Important Notice:

This FAQ is intended for general interest + information only.

It is not legal advice, nor should it be relied upon or used as such.

We recommend you always consult a practising USA Attorney for legal advice specifically tailored to your needs & circumstances.