Prior to issuing a DMCA takedown notice or counter-notice, however, Internet marketers would be wise to consider that the DMCA requires a statement made, under penalty of perjury, that the information in the notification is accurate or that the affected material was removed as a result of a mistake, as the case may be. An online service provider is required to replace the disputed content within fourteen business days. Once a counter-notice is sent, an online service provider may replace the disputed content after ten business days if the complaining party has not filed a lawsuit. The DMCA provides what such notices must contain and how the action or inaction of the original complaining party will impact treatment of the subject content. Depending upon the circumstances, senders of abusive takedown notices may be persuaded to stand-down upon receiving a counter-notice and being reminded about the consequences of misrepresenting that the subject content is infringing. The DMCA notice-and-takedown procedures also provide a counter-notice mechanism permitting users to challenge baseless infringement allegations aimed at curbing competition in the online marketplace, and to demand that the subject content be placed back online. Online service providers will typically respond by automatically removing the complained-of material, without assessing whether the disputed content is actually infringing. When an online service provider is given notice of infringing material being posted on its network, it often takes the form of a takedown notice. Frequently, the DMCA is also utilized in order to harass online service providers, chill online speech and stifle marketplace competition. The Digital Millennium Copyright Act’s mechanisms are an extremely effective way for online marketers to protect their intellectual property rights.
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