Google Game & Editing FAQ page

The content on this page is the result of providing answers to Frequently Asked Question input as search terms into search engines made by gamers and content creators and developers about games, game editing, modding, developing or creating content for games. If you don't see an answer to a question you may have asked - which is what brought you to this page - then send it in and KatsBits will answer it or find one for you.

Click to get the RSS master feed

xx Blackberry Playbook won't charge, power-up or boot

March 28, 2014, 02:06:27 pm by kat
Like all electronic devices, the Blackberry Playbook is prone to issues if its batteries are allowed to fully drain. When this happens the device will neither power-up nor retain a charge when plugged into a power source. The reason for this is due to the way power is managed by the Playbook - batteries need to have a residual amount of power, about 3 volts, for proper power management, below this point there isn't enough to power the CPU and power management chip that regulates the batteries and their power usage/charging. When pressing the power button if the LED flashes red a number of times and then either green or amber, all is not lost.

Note: this is not the same issue as the 'Playbook Black Screen of Death' (BSD)

Depending upon the severity of the battery drain simply plugging the device into the charging unit (not the USB connector but the wall plug and cable unit) should fix the problem - when connected the screen will display a 'power' symbol indicating it's accepting the charge. Allow a reasonable amount of time to pass, at least 30 to 40 minutes, attempting to boot the device. If this does not happen then the following may need to be done.

In instances where nothing at all appears to be happening (aside from a hopefully flashing LED) it may mean the Playbook needs to be 'stack charged'. This involves charging the device a number of times for a limited period, usually from 30 seconds to between one or two minutes - duration depends on the severity of the battery power loss. Each charge 'stacks' on top of the previous and over a duration builds up sufficient change in the device for it to either boot, or at least then accept a proper charge. In essence, this process builds enough charge for the CPU and power management chip to activate, which in turn allows the device to charge properly. Again, allow a good 30 minutes or so before turning on the device.

If both the above fail then it means the device has absolutely no power at all (not even the LED flashes). In such instances the device may need to be dismantled and the batteries accessed directly for charging - which bypasses the power management system. Needless to say this will void any warranties.
0 comments | Write Comment

xx "Fan Art" & Copyright Infringement

March 19, 2014, 07:19:33 am by kat
Copyright and Intellectual Property Rights can be a tricky subject to understand but for the typicaly game maker or content creator it need not be. Take for example one of the many [1] "Mario 64" remakes that popped up recently making use of the Blender Game Engine[2]. It's getting a lot of praise, YouTube views, and as a personal project for the developer it's certainly a laudable and impressive pursuit; people tend to learn difficult subjects or concepts quickly, and retain more information better, and for longer, when they enjoy what they are doing, or are familiar with certain aspects of the materials used. Mario, being a fun character and one with which most gamers are familiar, could be considered a perfect example of this principle in action.

This material is provided for informational purposes only and should NOT be construed as legal advice on Copyright, Intellectual Property Rights or DMCA. It is highly recommended legal Council be sought in matters of law.

However, these types of projects regularly prove problematic for creators because their assets are frequently ripped[3] from other games. As a result it often means the Copyright or Intellectual Property rights and protections of a third-party are being directly infringed[4]. Where Mario is concerned that third-party would be Nintendo.

So what is "Copyright" and "Intellectual Property" and why should it matter? In a nutshell Copyright and other Intellectual Property rights concern certain aspects of creative endeavor. Whilst not mutually inclusive of each other, that is; 1) the Authors right to claim the Work as theirs, and 2) the prerogative to exploit said Work[5], however they see fit, independently, in part or whole, the activities of which are recognised and protected[6] under various International Treaties and Regional and Local Copyright Law[7]. For the most part however, certainly where recognisable content, brands and Intellectual Property's are involved, when someone else's material is being used without permission, discussion of "Copyright" and "Intellectual Property" tends to infer the latter rather than former point - the unauthorised exploitation of the Authors prerogative in a given Work - because the determination of 'ownership' is crucial with respect to being able to properly appropriate content without adverse legal consequence.

To put the above in context with the Mario this would mean that whilst Shigeru Miyamoto is recognised as the 'Author' and 'creator' of the character and associated Intellectual Property, the exploitation 'Rights' currently belong to Nintento. In other words Nintendo own Mario, and depending upon the degree of 'ownership' Nintendo has over the Mario, they also control how he's used - which might subsequently mean Miyamoto having to get Nintendo's permission to exploit something he created. So, if Miyamoto has to do this as the original creator of Mario, then everyone else would require permission for the same reason; the Property belongs to someone and their permission is needed to use it. Furthermore, should the resulting project be made public, because doing  'exploits' (is making use of) the Property of another individual or entity, permission would be of greater import. Without it the projects owner could find themselves in a lot of hot water, or loose their work entirely (cf. fn[9] & [10]).

But isn't this all about making money? What about "Fan Art", people don't make money from that and it's often posted to 'public' websites?. Generally speaking, infringing another’s Intellectual Property concerns its misappropriation or unauthorised use, interpreted as broadly as possible, rather than 'money making' specifically. This makes Fan Art doubly problematic because, whilst Rights Holders might 'indulge' communities by (conditionally) allowing the creation of themed artwork[8], the issue becomes exacerbated the moment such content appears alongside any form of monetisation - websites that tout for subscriptions or memberships, that sell other services, or just display plain old banner advertising -  even though fans might not otherwise have intended to profit from their creations. This is a key point in understanding this entire issue and why some content can be removed whilst others might remain - in almost all cases the applicable conditions of use tend to reside solely with the Rights Holder[9]; if they feel someone is unduly profiting from something they don't have the appropriate permission to use, they will determine whether or not the material gets "Foxed"[10] and issued with a "Cease and Desist" Notice[11], a process now made all the more easy with the advent of DMCA[12] and its respective "DMCA Take Down" procedure.

It should be apparent at this point, and in this context, that using third-party content without permission needlessly conflates the creation process such that would-be creators, need to foster an increasingly cautious, responsible and mature attitude towards Copyright and Intellectual Property because, if anything, it is of equal import to their own projects as it is to the likes of Nintendo[13] - just as with Privacy[14] these rights are uniformly applicable, the moment the creator become selective in their consideration is the moment they might loose or compromise their own grounds of complaint should they find their own work misappropriated.

The same is also true in the broader context and the Blender communities overall lack of regard for Copyright and other Intellectual Property issues. It (the collective community) should be seen to encourage originality, for creators to express their own ideas rather than to infringe, especially where such productions are a direct consequence of lazy familiarity, cashing-in on, or at the expense of, someone else's work[15].

Finally, whilst Copyright and Intellectual Property issues can be complex, they are not always expressly ambiguous. In other words, certain types of activity are pretty cut-n-dry in terms of their being an infringement or not - ripping, or using ripped content for instance, is not "ambiguous" because several layers of 'security' has to have been intentionally bypassed to get at it. And whilst working with such content might not be strictly condoned when done in the privacy of the personal home computer, publicising the results only invites trouble, something that can be avoided by simply not doing it in the first place.

The below is a very basic list of Copyright and Intellectual Property "do's and don'ts" - it's important to note that the following does NOT mean doing one or the other will be considered a 'safe' activity or not as the case may be, because as discussed extensively above, Rights Holders typically have the last say on these matters and have no reservations about expressing that position.

Avoid doing the following;
  • Ripping content from a primary source.
  • Porting content from one source to another.
  • Distributing materials created by another.
  • Bypassing DRM.
  • Ignoring an EULA.
Consider doing;
  • a re-imagining or re-interpretion (using different media may be better than same media).
  • looking at whether 'Fair Use'[16] applies.
Additional Reading

[1] searching BlenderNation should reveal the article unless it's been removed - it's not linked to in the above for reasons stated in the above, namely this site (KatsBits) not wanting to condone the activity in question.

[2] the BGE remake/facsimile makes use of materials and content ripped (extracted) from a protected environment. This generally means two things; 1) the circumnavigation of DRM (where applicable), and 2) ignoring an EULA (End User License Agreement) by cracking open the games content, elements of which are typically held proprietary format.

[3] the author of the Mario 64 Blender Game Engine facsimile port openly admits on YouTube that the assets used area ripped from Smash Brawl "Using Blender Game Engine, just playing a bit, the model is from Smash Brawl, everything else done by me, still a lot of work to do, stay tuned for more updates! :) " [(youtube)/watch?v=RA-aXpl6f8s]. It's often the case that assets used for projects like this are ripped and given their professional quality, having been made by professionals, often garner much praise as a result of people not knowing (out of naiveté rather than not caring per se).

[4] even though the materials in question are virtual, because they have been 'taken without permission' a "theft" has occurred. This is because "Theft" is generalised as a 'Property' crime rather than an issue attributable to specific, tangible items or 'things'. As such 'taking', 'exploiting' or 'misappropriating', 'Property' without permission is "theft".

[5] "Natural Rights" differ from "Assigned Rights" in that they exist 'outside' or in the absence of Law; being regarded as the author of something is not predicated upon the existence of a Law saying as much..

[6] generally speaking International Copyright and Intellectual Property are afford protection under the Berne Convention for the Protection of Literary and Artistic Works, which also depends upon the Territorial jurisdictional interpretation and enforcement of the aforementioned, alongside U.S. Code: Title 17 - COPYRIGHTS in the United States, the Copyright, Designs and Patents Act 1988 in the UK, or under the EU as The Directive on the enforcement of intellectual property rights. Furthermore, whilst the following is not required for a Work to qualify as being Copyright protected, Intellectual Property registered with a Government Agency, Officially recognised body, or in an appropriate form that engenders 'Official Sanction', will be afforded greater protection through an associative preponderance of evidence, i.e. there is an official record of such-and-such. It's important to note additionally that ideas and thoughts in of themselves cannot be protected unless or until they are manifest in tangible form.

[7] the "Author" or "Originator" of a Work can grant use of their materials to a third-party (or beyond) typically through conditional 'license of use', a privilege that can be revoked under certain circumstances. This means that Copyright and Intellectual Property is in effect comprised of two interconnected parts; 1) the item itself, a painting for example; and 2) the ability to exploit said item without necessarily taking ownership, for example making a print of the painting without having to purchase the painting outright. However, if the Author/Originator transferred full Rights in their Work to another, whilst they will are always recognised as the "Author" et al, they would then need to seek permission from the assignee to use the very materials they created - the creator of a Work can never be stripped of "Title" to the work (being referenced as the "Author" et al) because it is a 'natural right' - a right that exists outside law, but they can be prevent from exploiting that right depending on assigned license/rights conditions. There is a material difference between being recognised as the author or originator of a Work, and being able to 'exploit' that work.

[8] where "Fan Art" is tolerated by Rights Holders, that might be based upon whether a given Work is 'transformative or 'non-transformative' - a drawing or new 3D character might be considered 'transformative' because it changes, adapts or modifies the original expression; whereas ripping and transferring content between devices might not because it makes no substantiative change to the original - it is 'non-transformative'. Establishing the characteristics of the above in any case can be difficult when output is based entirely on someone else's property, especially if that material is in actively use (as is Mario).

[9] level design and game modding differ in a general sense in that developers and publishers might expressly allow it through the availability of proprietary tools - id Software, Epic, CryTec and Valve for example, provide various proprietary tools and editors to facilitate the production of fan made content for their games.

[10]Anyone with more than a passing interest in game related content creation, or wanting to make their own games, needs to be aware that infringement can lead to projects being “Foxed”, that is, their projects being forced to close through the receipt of a "cease and desist" Notice, as happened an Alien's themed Quake Mod that had to be cancelled due to 20th Century Fox claiming infringement of their Intellectual Property. Unfortunately for the mod team (and others since), 20th Century Fox were (and still are) well within their Rights as the IP holders to do this. And not just with games. It's equally applicable to transfer printed mugs and tea-towels as it is to action figures, movie prop replicas and full-size CosPlay outfits.

[11] “...The Alien Quake project was using copyrighted material without permission and this makes Alien Quake an unauthorized and illegal production. Therefore, you are hereby ordered to remove all your Alien Quake files from your computer storage...” [source notice]. Prior to DMCA, a legal Notice had to be sent to the infringing party at considerable cost to the Claimant (person/entity claiming infringement). Now all a Claimant need to is send an eDoc for the infringing party to be considered 'served'.

[12] DMCA is a legal process by which a Rights Holder can issue a Notice against an infringing party to have suspected materials taken offline whilst the veracity of such claim is contested (or not as the case often is). For more information read the following - “I got a DMCA 'take-down' Notice, what do I do?”, “Are DMCA Protection websites scams?” and “filing a DMCA Notice or Counter Notice”.

[13] individual developers and small teams are increasingly reliant upon revenues generated from advertising, so competing products that misuse or misappropriate someone else's Intellectual Property robs them of income by diluting or hijacking their revenue stream – this is one of the reasons YouTube/Google recently instituted their “Content ID” claim system, which partially seeks to address this issue on YouTube (cf. “YouTube & Not Approved for Monetisation”).

[14] "equal rights" refers to assignment without bias or prejudice. However, do note that "equal rights" is not synonymous with "equality of result". With respect to "Privacy", as is generally understood, it is another form of property right because the data and/or information often at the centre of such claims, belongs or pertains to some one or entity. 'Ownership' (source) can be traced in other words, making it a commodity that can be treated in much the same way as any other property over which a claim could be made, or protection demanded.

[15] a creator or developer using someone else's material to make a name for themselves, or to cash-in on either the popularity of a particular game or any of the names associated with it, is a form of exploitation that is just as readily an infringement of Intellectual Property as 'theft' and equally subject to liability
. So again, it's far better to create something from an original idea than to use 'ripped' content because at the very least, the Author has stronger claim of ownership over such material.

it's important to understand there are no specific allowances for "Fan Art" in Copyright Law so it tends to be argued under "Fair Use". However, depending on applicable Law and Jurisdiction, "Fair Use" has some strict conditions that do not always apply (because the intent behind 'Fair Use' differs to that of 'Fan Art'). Use with extreme caution.
0 comments | Write Comment

xx Surface Tablet & limited internet connection

October 18, 2013, 03:48:17 pm by kat
Microsoft's Surface Table (Windows RT) appears to have persistent issues connecting to the Internet resulting in either "Limited Internet Connectivity" errors, or there being a full connection (there are no errors or warnings) but the speed and throughput is severely reduced. This may happen on WiFi networks that do not otherwise exhibit problems themselves nor do any other connecting devices. Microsoft recommend connecting to the Internet to install the latest updates (the irony).

The problem may be related to accessing hidden networks, i.e. networks that do not broadcast any "SSID" information. This might mean that although a connection can be made manually, because no general broadcast information is available the connection appears to self-limit despite showing full connection.

Where network or router management is available, try temporarily enable SSID broadcasting to see if that clears the general connection issues. If it does, download the latest Windows RT or Device Hardware Firmware updates (which are reported to fix the problem) before disabling SSID broadcast.

Alternative solution
If the above does not work, it may be possible to network the device to another computer using a USB/LAN converter, then setting up a shared LAN connection.
0 comments | Write Comment

xx Are DMCA Protection websites scams?

July 04, 2013, 09:30:12 am by kat
It's an unfortunate inevitability that posting material to the Internet will at some point mean having to deal with the niceties of "DMCA", either as a Claimant sending a "DMCA 'take-down' Notice", or the Accused having to respond in kind with a "DMCA Counter Notice". Whilst most issues can be dealt with by those involved, in researching the subject it won't have passed notice there are a number of websites and businesses dedicated to providing various free or premium (paid for) DMCA 'take-down' and/or DMCA Protection services.

What are they? And are they any good?.

It is strongly advised that legal Council be sought in matters of law. Do not blithely or blindly initiate or respond to a DMCA Notice, Counter Notice, or sign any documents without doing so. The below is provided for informational purposes only and should not be construed as legal advice.

What is DMCA?
The essence of "DMCA", or "Digital Millennium Copyright Act", is an administrative process of notifications, i.e. the sending back and forth of documents authors, creators and copyright owners can use to have their content removed or taken down from the Internet or other electronic publishing system (iTunes, Kindle, etc.) when it's been stolen, infringed or otherwise misappropriated without permission. The Claimant (person finding their work used without permission) files a "DMCA 'take down' Notice" with a service provider (YouTube, Apple or Amazon for example) who then removes or disables access to referenced materials. If the claim is valid nothing else typically needs to be done. If the claim is invalid, false or incorrect, materials claimed against may be re-enabled on their own merits and/or if the Accused responds with a valid "DMCA Counter Notice".

How much does DMCA cost?
There are no inherent licence or processing fees ascribed to the issuance of a DMCA Notice or Counter Notice, their filing with a Service Provider or other entity. Costs may be incurred however, sending emails, posting documents, paying for the use of an appropriately qualified third-party 'Agent' (a DMCA lawyer for example) or independent service to administer the procedure on behalf of involved parties.

Can DMCA protect content?
DMCA does not "protect" content in a pro-active preventative sense. Instead DMCA is re-active, that is, it provides 'protection' after-the-fact; DMCA cannot be used to stop theft, it can only be used to prevent further or continued infringements once discovered. This essentially means that ANY website or business offering "DMCA Protection" or similarly tagged benefits, is doing so by misrepresenting the relationship between their respective content protection services and DMCA. In other words, DMCA itself is not 'protecting' content, (typically proprietary) tag and track technologies are.

Do I need to use a DMCA Lawyer?
Filing a DMCA Notice or Counter Notice invokes a Legal process (one signed under Perjury) so anyone making a claim, or being accused of infringement, is strongly advised to seek advice from an appropriately qualified DMCA or Copyright Lawyer, Solicitor or other Legal professional before submitting or responding to a claim, at the very least to assess its merits.

Should I use a DMCA Takedown Service?
Whilst most DMCA issues can be resolved by involved parties, occasionally the use of a third-party, a "DMCA Agent", may need to be considered. Should this course of action be taken the agent would normally act in an administrative or managerial capacity filing the necessary paperwork on behalf of claimants or accused, and only once the appropriate contracts have been signed authorising them to do so. What they cannot do, unless carrying the appropriate legal qualifications or personnel, they are or employ, DMCA or Copyright Lawyers for example, speak to, or offer, legal advice concerning the veracity of a DMCA claim.

So what are these DMCA takedown services charging for?
Typically DMCA protection services and DMCA Agents charge fees for the administration or management of Claims and Counter Claims, or for the use of proprietary technologies that 'tag and track' content. What they cannot do is charge for, or imply, that DMCA itself incurs any processing or licencing fees. The issuance of DMCA Notices has no such requirements.

So how do I protect my work with DMCA?
As discussed above, the intent behind DMCA is remedial, its invoked after-the-fact. This means marking content with "DMCA Protected" badges, stickers, insignia or other identifiers provides NO inherent preventative protection. In other words, to believe marking content pro-actively prevents theft is to fundamentally misunderstand the intent and purpose of DMCA - it cannot and will not prevent theft. However, this is not to say that using "DMCA Protected" badges and other identifiers is without merit, rather that their presence might be considered a notification of intent by content authors/owners they they will resort to DMCA and available processes to address infringements.

Can I use DMCA on foreign non-US websites?
For DMCA to be applicable in non-US countries, services upon which infringing material might exists would have to subscribe, at least in principle, to DMCA as expressed in United States Copyright Law. There are no obligations for their doing this however, especially where doing so may supersede laws and legislation governing localised Copyright. Legal Council is particularly advised in instances of International infringements.

Can I use DMCA to remove my photos (of me) from Facebook?
DMCA should only be used to address issues of Copyright infringement, meaning, a claim aught to be made using a DMCA takedown Notice only if the alleged image or photograph is in some way 'owned' by the claimant, i.e. the material was produced using the claimants own camera device or one they had permission to use. Should this not be the case, any DMCA Notice sent in pursuit of such an infringement claim would likely fail through receipt of a valid Counter Notice, resulting in the alleged material being re-enabled. Furthermore, filing DMCA Notices over issues more correctly pertaining to privacy rights (model release) may precipitate prosecution of claimant though causing content to be erroneously removed based on a knowingly false or incorrect claim.

What next
Click "I got a DMCA takedown Notice, what do I do?" to find out what you need to know before filing a DMCA Notice or Counter Notice.

Help others
Was this information helpful? Select the code below, copy/paste it into a webpage and help educate others about using DMCA to properly safeguard their content!.

"Safeguarding content through DMCA"

0 comments | Write Comment

xx I got a DMCA 'take-down' Notice, what do I do?

June 25, 2013, 06:55:25 pm by kat
Before reading further it's very important to understand the process by which material is taken-down from the Internet is not simply a means by which emails are sent back-and-forth between parties, it explicitly invokes a legal process under the Digital Millennium Copyright Act and has consequences if done incorrectly or knowingly to be false.

It is strongly advised that legal Council be sought in matters of law. Do not blithely or blindly initiate or respond to a DMCA Notice, Counter Notice, or sign any documents without doing so. The below is provided for informational purposes only and should not be construed as legal advice.

What is a DMCA 'Take-down' or 'Cease & Desist' Notice and why did I get one?
Being in receipt of a DMCA 'take-down' Cease & Desist Notice means the sender believes you are, or have, misappropriated their content in some shape or form. This might be text from an article, image from a portfolio, but can be anything over which someone might have an 'ownership' claim [fn.#1], something they are claiming to have made, taken (photo), uploaded or electronic published, and irrespective as to it being the entirety of a given item or just a section, will be enough for the person or entity sending the Cease & Desist notice (the Claimant) to recognise their content and be able to state that it is theirs and take the appropriate action to have the offending material removed from a particular location. The "DMCA Cease & Desist" (more commonly known as a 'take-down order') is basically official notice of the identification and removal of said infringing material.

What do the text and links in the DMCA Notice mean?
The contents of a Take-down/Cease & Desist notices are surprisingly straightforward to understand and can be broken down into a number of different sections as follows;
  • The Claimant
  • The Original Content
  • The Infringing Content
  • The Statement of Fact
  • Claimants Signature
1: The Claimant is the person or entity making the DMCA Cease & Desist/Take-down claim. Typically this would be the owner of the original Content listed on the Notice but can be an 'Agent' acting on their behalf [fn.#2].

2: The Original Content references the material being infringed, a photograph that has been copied, duplicated or uploaded elsewhere for example. It can be a single item, a set of items, or a reference to a group of items (without necessarily listing them individually) [fn.#3].

3: The Infringing Content references the material deemed to be a misappropriation or 'infringement' of the Original Content. It can be a single item, a list of items or a reference to a group of items (again without  necessarily needing to list all items individually) [fn.#4].

4: The Statement of Fact is the claimants attestation that the notice is factual, true and correct. It is very important because it forms the basis upon which an 'oath' is formed when the notice is signed, making it a binding document [fn.#5].

5: Claimants Signature is the signing authority that turns the document into a legally binding Notice. In other words, the recipient is bound by law to respond to it. Various forms of digital Signature can be used to 'sign' a Notice [fn.#6].

How do I know the DMCA Take-down Notice is real?
The Digital Millennium Copyright Act, for which "DMCA" is an acronym, requires the service providers/operators notify the accused as expediently as possible upon receipt of a take-down order. As there are no specific requirements to what this 'alert' aught to contain some providers may forward/attach a copy of the original Notice (YouTube do this for example), whilst others may simply send a generic message about the accusation absent any specifics (most hosting companies do this). If the former is received the Notice itself will contain the Claimants details which can then be independently checked using various means, the latter requires a certain degree of trust in the DMCA process as the message will contain no identifying information. In both instances however, Notices are usually sent to the service provider/operator rather than to the accused directly (unless the accused also happens to be the service provider/operator), so any mail received that way can be regarded as reasonably legitimate and be dealt with appropriately [fn.#7].

They took down my [content]! How do I get it put back?
The DMCA take-down Notice has to be responded to. In affect, because the Notice is an accused of theft, or at least a misappropriation of content, DMCA legislation requires service providers/operators remove offending material (cf. §512 (c) (1) (A) (iii)) until such time as the accusation can be sorted out - either the material remains offline because the accusation is true (irrespective of motivations, reasons or justifications for it being used in the first place), or it is put back because the accusation is untrue - to facilitate this a response to the DMCA Notice has to be sent with effect of notifying the service provider/operator that the claim of infringement is false or incorrect. This is done filing a "DMCA Counter Notice" [fn.#8].

A DMCA Counter Notice? What's that?
A DMCA Counter Notice is just that, a 'notice' that 'counters' (opposes) the claim being made. In other words, it is a response indicating the accusation/s in the take-down notice are incorrect or false. In similar fashion to the Take-down Notice, a DMCA Counter Notice has a relatively easy to understand basic structure;
  • The Counter-claimant
  • The Counter-claimed Content
  • A Statement of Fact
  • Jurisdictional Acknowledgment/Agreement
1: The Counter-claimant is the person or entity originally accused, now the author of a counter-claim [fn.#9].

2: The Counter-claimed Content is the material alleged to have been infringed by the original Claimant. Items would be listed relative to the original Notice received.

3: A Statement of Fact is the Counter-claimants attestation their Counter Notice is factual and correct and similarly, is a declaration of an 'oath' to that fact.

4: Jurisdictional Acknowledgement/Agreement is a statement agreeing to be bound by the laws and procedures of the U.S. Copyright Code and a particular jurisdictional area of the United States (usually the State within this the service provider/operator is located). This facilitates further prosecution of the matter under DMCA and U.S. Law should it be necessary to do so.

If I send a Counter Notice will my [content] be put back?
In sending a DMCA Counter Notice the original Claimant is being notified by the accused their accusation is incorrect or false, and being so have ten (10) days to respond to the rebuke before the service provider/operator is required to reinstate the material claimed to be infringing (cf. §512 (g) (2) (B) & (C)) [fn.#10]. Before sending the Counter Notice however, be absolutely sure any claim of infringement is indeed incorrect (in error) and/or false; NEVER, EVER, send a Counter Notice simply as a means to have infringing material reinstated by 'forcing the claimants hand' - if the claims are true (material has been misappropriated) and a Counter Notice is filed in full knowledge of this the act becomes potentially perjurious, which would then give the Claimant grounds to take the matter further, and the service provider cause to perma-ban any accounts associated with the infringing materials [fn.#11].

If they don't respond to my Counter Notice can my [content] still be taken down?
If the Claimant still has issue with the material being used the next step would be for them to initiate court proceedings by serving a sopeana to the service provider/operator to fully identify the accused infringer. Once this information has been acquired that person can be served directly. Barring the aforementioned nothing in the DMCA legislation prevents the repeat filing of take-down Notices on the same items or material, certainly once the allotted time has passed for resolution per individual DMCA incident [fn.#12].

So there's nothing I can do to stop 'false' accusations of content theft/misuse?
So long as material references in a Notice/Counter Notice are correct, i.e. infringing content exists and can be found, service provides/operators are obliged by the requirements of DMCA to remove the material. This does unfortunately mean that even if the claim were rebuffed and material restored, multiple DMCA Notices/Counter Notices can still, in theory, be sent/received over time on the same item/s. However, should a Claimant decide on this course of action it should be noted that service providers/operators may determine a Terms of Service violation assessment against the Claimant and suspend associated account/s for causing a disruption to service through filing 'frivolous DMCA notices' [fn.#13].

So what do I actually need to do?
If sending a DMCA Counter Notice the material referenced in the original Take-down order needs to be inspected carefully to determine if they are indeed copies or misappropriations, intentional or not. If they are then it's unlikely filing a Counter Notice will be productive (certainly not recommended) [fn.#14]. It's also unlikely offending material will be accessible to facilitate changes being made to remove the infringing content by the accused infringer. This will however, largely depending on the type of service being subscribed to, and the level of access the service provider/operator grants whilst individual DMCA actions are in progress [fn.#15].

If sending a DMCA Take-down Notice, before doing anything make absolutely sure the material in question actually infringes Copyright; there are a number of allowances for "derivative works" (§101 para #15 "derivative works" ) and "Fair Use" (§ 107 - "Limitations on exclusive rights: Fair use"), amongst other exemptions/excepts for example, that need to be born in mind [fn.#16]. In other words, a claim needs to be factually based rather than interpretively subjective - someone looking at the original and infringing materials side-to-side needs to see more than just a passing similarity - similar is not same [fn.#17]. If the work is found to be infringing, rather than jumping-the-gun and filing a take-down Notice, check to see if the service provider has any specific policies with respect to DMCA to make sure that whatever is filed complies with their requirements, else the Notice will be rejected [fn.#18]. Gather material evidence, that is, specific items, urls and other information which helps identify the original and infringing content, as well as their respective history (if available for possible use later). If possible seek advice from Legal Council versed in DMCA litigation; even if this is just to advise on the merits of the claim, it is worth getting if the means to do so are available. Finally, using all the information gathered, write up, and then file, the DMCA Take-down Notice with the service provider/operator as the the requirements of DMCA itself and any policy guidelines the provider may have in place - if the claim is valid the material will be removed, if it's contested a Counter Notice (as outlined above) will be received, which means reassessing the claim; was it really an infringement?; does this need to be taken further? [fn.#19].

Do I need to send my original material as proof?
Whilst it might seem a good idea to 'prove' the material being claimed against, either as a take-down Notice or Counter Notice, were legitimately created by its respective author, it is NOT NECESSARY (nor a requirement) to forward any working files or other supplementary materials with a Notice or Counter Notice, this is not the purpose of the DMCA process, which is simply a claim/counter claim notification procedure; evidential requirements come later at the point of litigation, should the claim go that far. If additional material is sent, it will be forwarded on to the Claimant (or Accused) as part of the DMCA process, meaning the receiving party will have a copy of the original working file/s used.

References & Resources


[1] "Ownership" as it applies to online material will generally mean an item or items that someone created or owns the copy (distribution/duplication) 'Right' to, i.e. the person which gave 'birth' to, or 'manifest' a particular idea, thought, sound or visual concoction in a tangible form that can be viewed or distributed by a third party.

[2] The author of a DMCA take-down notice is not necessarily the person or entity who created the material being infringed, but may instead be an 'Agent' acting on behalf of said person, or more onerously, a person or entity making a 'false' claim. Details typically should include enough information to facilitate the proper prosecution of paperwork either electronically or by mail (cf. §512 (c) (3) (A) (iv)).

[3] As fn.#2 above, the original material need not have been created by the the author of the DMCA notice, they can be a person or entity with the authority to act on behalf of the 'Claimant' (person/entity submitting on whose behalf the notice is being served).

[4] As with fn.#2 & fn.#3, the list of material does not necessarily 'belong' to the person or entity making the actual claim if they are the originators 'Agent'.

[5] The statement is a declaration which is potentially perjurious when knowingly signed containing false or incorrect information. Perjury is a Felony crime under U.S. Code and carries severe penalties.

[6] Because the DMCA process can be done wholly by electronic means, a DMCA Notice or Counter Notice can be 'signed' in a number of ways; using some form of digital credential that has been security and/or identity certified; or by including a digital scan or digital photo of a real, written, signature. Note that additional forms of verification may be requested during the process.

[7] A message being "legitimate" speaks to the mail not being unsolicited spam and instead received through proper channels (directly from the service provider/operator). It may be possible to email the service provider or operator requesting a copy of the original DMCA Notice but this is unlikely to prove fruitful for various reasons - 'security' and/or 'privacy' are typically cited as a reason for none compliance with this type of request, but largely it simply falls to there being no specific requirement with respect to this other than receipt of a message indicating what's happened (cf. §512 (g) (2) (A)). Note also that whilst it should be assumed that any contact information is 'real' (it is a requirement of DMCA that ALL information be factually correct, else it invokes Perjury), it is entirely possible for this information to be false, fake or incorrect. Claimants are less likely to 'fake' take-down Notices when sent to service providers/operators because bad claims risk Claimants loosing their own accounts (if they have them).

[8] There are mitigating or circumstantially exemption-able caveats to this relating to the 'context' of use - U.S. Copyright law, of which DMCA is a component, allows for "Fair Use" covering a number of very specific exemptions, typically 'research', 'educational', 'review' and other such contexts. However, although the Copyright Act lays out basic constituent criteria, interpretation will likely be subjective, necessitating the employ of Legal Council versed in Copyright Law and/or DMCA.

[9] As with a Take-down Notice, the filing Claimant can be the author/owner of the material or an Agent acting on their behalf. Again, although the Counter-Claimants details are required to be 'factual' (cf. §512 (f) and §512 (g) (3) (D)), just as a Claimants are (cf. §512 (c) (3) (A) (iv)), it doesn't necessarily mean they will be if the DMCA process is being abused either sending or receiving Notices.

[10] Although service providers/operators are required to reinstate material no sooner than ten, and no later than fourteen, days after a DMCA Counter Notice has been filed (cf. §512 (g) (2) (C)), the speed with which this actually happens will vary depending on the service provider/operator - most do comply within the allotted time-frame, whereas others don't or won't; typically messages to the provider concerning delays go unanswered requiring the potential of legal action against the provider.

[11] NEVER, file a false or knowingly incorrect Notice or Counter Notice. Not only does this carry greater potential for further litigation and serious consequences with respect to Perjury, it also undermines the efficacy of the DMCA process for everyone.

[12] Notwithstanding enforcement issues, it should be noted that being outside the United States does not mean Notices or paperwork served to a service provider to reveal the identity of the accused, or further pursuit of prosecution, is without merit; in signing a DMCA Notice or Counter Notice, agreement was made for the signatory to be bound by the jurisdiction of the United States rather than necessarily any local laws governing Copyright.

[13] A conditional aspect of service providers/operators compliance to DMCA Notices and Counter Notices is their being granted "Safe Harbor" status as the man-in-the-middle; so long as they act expeditiously they cannot be held liable with respect to infringements. Additionally, whilst there are specific protections against filing 'false' DMCA Notice/Counter Notices (cf. §512 (f) "Misrepresentations), there are none concerning "frivolous DMCA claims", that is the repeat filing of notices, that whilst 'truthful', have been successfully countered, such that they cause nuisance or are determined to cause interference. Irrespective of this service however, providers/operators are generally within their Terms of Service rights to suspend accounts associated with such activities as they deem disruptive to service provision.

[14] The original author of the material doesn't care where the material was acquired, nor how it came in to the possession on the accused, which is why the take-down notice was filed in the first place. All they see is a source of their material not appropriately permissioned for use.

[15] Some providers may continue to allow access to infringing material at an account-level to facilitate content administration (editing/changes). It is unlikely however, which means relying on whatever local HDD archive is available to double check the infringing materials are indeed same/similar/different; being able to check is heavily dependent on receipt of the origin Notice or the service provider/operating sending enough details through for verification - in order to check the original material needs to be inspected. Unfortunately DMCA doesn't work this way, so this latter point may mean contacting the provider with a request for more information to facilitate being able to verify the claims being made.

[16] This is notwithstanding any limitations or necessities associated with the service being used. For example, in uploading content to "X" service, do their terms of service specifically allow such material to be used, changed or altered to make new content? If so, then claims of infringement need to accommodate accordingly - what might ordinarily be considered a claim might be invalid in such an environment.

[17] The use and definition of "derivative works" and "Fair Use" is contentious even thought §102 - "Subject matter of copyright: In general" and §103 - "Subject matter of copyright: Compilations and derivative works" lay out the prerequisites of what constitutes protectable Copyright and Derivative works. This is why it's important to seek Legal Council or at the very least a third parties second opinion on the work in question before progressing with any DMCA actions.

[18] It is only necessary for providers to "substantially" comply with the requirements of DMCA Notices so they may ask for additional information, or more likely, for said to be structured in a particular way before processing an order.

[19] If Legal Council were used, part of this may mean the Noticed being filed by Council acting on the Claimants behalf as their Agent. More typically though, DMCA Notices are filed using the Claimants details as the necessary administrative contact information.
1 comment | Write Comment
Connect to KatsBits on Facebook Follow KatsBits on Twitter Connect to KatsBits on LinkedIn Google+ Subscribed to KatsBits on YouTube
Search KatsBits using StartPage
KatsBits Web