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[IMVU] filing a DMCA Notice or Counter Notice

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Offline kat

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As of Oct 2012 the email address associated with DMCA matters has been changed from DMCA@imvu.com to dmca_agent@imvu.com

DMCA Background
Before filing (sending in) a Digital Millennium Copyright Act (H.R.2281) (referred forward as "DMCA") Notice to IMVU, it is vitally important to understand that doing so initiates, or is a response to, a legal process. Under Title 28 USC § 1746, a DMCA Notice and Counter Notice are regarded as being an "unsworn declaration", signed under penalty of Perjury (as prescribed under Title 18 USC § 1621); that is, to make a false statement of fact, or in other words to 'lie' (this includes, but is not limited to, using false or fake credentials, contact details or identity information as well as, or along side, any false claims in the notice), is a felony crime which carries a fine and/or imprisonment as potential punishment. Although the Digital Millennium Copyright Act is a US Law, it becomes 'binding' on a particular individual or entity once a DMCA Notice or Counter Notice is signed into being[5] - upon signing, the signatory agent is making a voluntary declaration to be bound by US Law in matters pertaining to DMCA and prosecution thereof generally.

How does DMCA work within IMVU?
Generally speaking there are three parties to a DMCA Action through IMVU; 1) the Copyright owner, 2) IMVU themselves, and 3) the infringing (receiving) party. In any such action IMVU simply acts as a conduit through which the necessary 'paperwork' is passed. They make no judgments or assessments as to the veracity or even correctness of any claim except to make sure it complies with the requirements of DMCA itself (see below).

In essence, "Creator A" ("A") finds their work being used by "Creator B" ("B") without proper attribution or derivation (typically a stolen mesh or texture, or a 'like-for-like' remake of an asset). "A" naturally takes exception to this so goes about filing a DMCA Notice with IMVU. IMVU receive this notice and as a result 'takes down' (hides) the offending material whilst the matter is being dealt with. They then send an email notification[4] to "B" informing them of the action taken and the step(s) they can take to reinstate the material. If the claim made by "A" is 'true', then "B" won't really have a leg to stand on. If the claims are a mistake or outright false, then "B" can send a Counter Notice back to IMVU stating such. "A" then has approximately 10-14 days to respond else the alleged infringing material is unhidden and made available in the catalogue. Typically, claims and counter claims rarely go beyond this this initial process.

Filing or sending a DMCA Notice to IMVU
IMVU has to comply "substantially" with the requirements of DMCA itself (Sec (3)(c)(a)). This means any Notice sent to IMVU about another's infringing activities needs to be in a particular format. This is laid out in IMVU's Terms of Service (cf. "Copyright and Trademark Infringements") as follows;
  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a full list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Site, and information reasonably sufficient to permit IMVU to locate the material.
  • Information sufficient to permit IMVU to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
  • A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

A DMCA Notice then, is a 'declaration' that a particular individual is the holder of Copyright on a specific item, or list of items, that are being infringed by another party. In layman's terms, you identity yourself as the Copyright owner, the items you own, the items being infringed and finally the all important Declaration of these facts. Once written up this is sent to IMVU's designated 'Agent' (see ToS for details). From there, any content (products) subject to the Notice are hidden from view[1] and the infringing party receives an email outlining the 'offense' and the action that can be taken to counter the claim or claims being made.
Filing or sending a DMCA Counter Notice to IMVU
On receiving a DMCA Notification from IMVU (it's important to note that the receiving party does not receive the original DMCA claim, but instead a simple email from IMVU's DMCA Agent with an outline of the Notice they received), if the claims against the receiving party are 'true', then no action is going to be needed, the claim being legitimate. If the claim is not legitimate and/or there are concerns over the veracity of the charges being made, the receiving party can issue a DMCA Counter Notice. As above, a Counter Notice also needs to be in a particular format and/or contain specific information, which IMVU again lays out in their Terms of Service (cf "Counter-Notification") as follows[2];
  • Your physical or electronic signature.
  • Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
  • A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
  • Your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if your address is outside of the United States, for any judicial district in which IMVU may be found, and that you will accept service of process from the person who provided notification of a complaint of allegedly infringing materials or an agent of such person.

As with a DMCA Notice, a DMCA Counter Notice is similarly a 'declaration' of fact that the information presented in the document is true and/or that any claims made against the receiving party are either in error or miscalculation on behalf of the originating party. In other words, if you believe the claims to be untrue (but not necessarily 'false'), then you can send in a Counter Notice to this effect. Once received by IMVU, the originating party of the action has between 10 to 14 days to respond, else, IMVU will reactivate or re-enable the material previously hidden (note this is a time-frame within which the receiving party has to respond, not necessarily when items are returned to the catalogue).

General Notes
At no point in the initial stages of the process are either the Claimant (person or entity sending the DMCA Notice claiming ownership/infringement), or Defendant (person or entity receiving the DMCA Notice[3]), required, or otherwise obliged, to provide any physical proof or other substantiating evidence to back up the claims being made - DMCA is simply a 'notification process', 'evidence' comes later, in Court. In other words, Creators/Developers do not need to send any material back-and-forth to IMVU other than the DMCA Notice and DMCA Counter Notice declarations themselves. If either party does feel the need to do this, DON'T; never, ever, send through any original material, working files, or copies thereof with respect to a DMCA Notice or Counter Notice as the material has absolutely no bearing on the way IMVU deals with DMCA claims and counter-claims. Furthermore, as part of the general DMCA procedure, when responding with a Counter Notice, any and all accompanying material is forwarded on to the Claimant (person whom sent in the DMCA Notice).

Personally Identifiable Information
To expedite both a DMCA Notice and Counter Notice, parties are required to use valid contact and/or identification details. This serve two main purposes, 1) it identifies the parties involved, and 2) provides a physical address to which litigation paper can be sent where necessary. As such, and as per the above, it is Perjury to falsify, fake or use incorrect PII (with the deliberate intent to mislead).

Where sending a Notice might involve using personal details (a home address for example), the use of a valid P.O. Box or 'business' address is a viable alternative. Keep in mind however, that if further paperwork is 'served' at the address, and to the named entity provided, access will be necessary (note that paperwork delivered in this way is considered 'served' so "I didn't get it" is never a reasonable defense).

To reiterate. What must never be done is to use 'fake', 'made-up' or otherwise 'false' credentials in a DMCA Notice document - [sic] "... because they did it" is not defensive justification for it being done in return, it more than likely would jeopardise any additional action undertaken and make the signatory just as liable for Perjury as the opposing party.

DISCLAIMER: The above should not be construed as or considered to be legal advice, it is posted for informational purposes only. As the DMCA process is a legal procedure, anyone (individuals or entities) wanting to issue or counter a Notice is urged, in the strongest fashion, to seek out Legal Council before doing so; there may be unknown liabilities associated with filing a DMCA with IMVU against another Creator/User, of which Council will best advise with respect to these.

Additional Resources

[1] Products are hidden from view during a DMCA procedure and marked as being 'owned' by "DMCAHold" - they are rarely outright disabled so will remain available for use by those whom may have already purchased an item/s subject to the DMCA.
[2] Sending a Counter Notice means any Personally Identifiable Information presented in the document, such as a 'name', an 'address', a telephone number and/or any other such information regarded as being 'personal' and/or 'identifiable', is forwarded on to the originating party as a matter of course. The receiving party to the DMCA cannot refrain from allowing and/or denying this aspect of the process if a counter-claim is to be issued; it is a requirement of IMVU's DMCA process to which failure to comply will result in a returned Counter Notice.
[3] See below, the actual DMCA Notice is rarely, if ever (even if requested), sent to the accused infringing party, there is no way to make any face value assessments of any claims made.
[4] A typical DMCA email notification from IMVU is structured as follows (this IS NOT the actual DMCA notice itself);

IMVU has received a formal and legal DMCA takedown notice for one or more of your products in our catalog. The notice alleges the following product(s) were submitted in violation of copyright:

Product ID [PID number], "[Product Name/Title]"

In accordance with IMVU policy and pursuant to DMCA guidelines, IMVU has disabled access to or removed these products from the IMVU catalog. Per DMCA guidelines, you have the right to challenge a takedown notice and assert your legal right to hold and submit the materials which are alleged to be in violation of copyright. Please refer to IMVU's policy on copyright and trademark infringement for an explanation and directions for filing a counternotice:


In accordance with our policy, I must warn you that the posting of infringing content is a violation of our Terms of Use, and that further violations of the Terms of Use may result in termination of your account, your ability to post to our Site, and our refusal, deletion or removal of such materials. If you have questions or information pertaining to this matter, please contact me directly.


IMVU Designated DMCA Agent
[5] This is one of the reasons why declarations are held in such high regard, they are effectively 'oaths' brought into being by the signing party, the signatory is giving 'life' to the statements and/or claims being made.

Offline kat

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Pursuant the general description of DMCA, the Take-down and Counter-Notice process discussed above, of special concern to IMVU Creators are claims being repeatedly made against items already claimed, countered and cleared, basically the use of IMVU's DMCA processes as a means to harass or target Creators or their material with multiple, persistent or repetitive take-down claims.
It does not go without saying that DMCA is open to abuse from both sides of a claim, from those issuing spurious or illegitimate Take-Down Notices against legitimate originating authors, and those making similarly spurious illegitimate Counter-Claims against legitimate Take-Down Notices.

Frivolous Take-down Notices
Whilst 'frivolous litigation', i.e. repeatedly issuing Notices against material already claimed and countered, is not defined in the Digital Millennium Copyright Act , its prohibition is implied by way of the process being described as finite in character (notwithstanding Sec (F) "Misrepresentations"); it involves specific parties and invokes specific steps that place the onus on the accuser, not the service provider (IMVU) or accused (Creator).
Parties; Accuser (Claimant), Accused (Defendant),  and Service Provider (IMVU).
Process; Take-Down » Removal » Counter » Reinstatement » Court Order (» Removal).

Reinstating Content
In this context the legislation provides remedy (to a degree) under Sec (G), "Replacement of Removed or Disabled Material and Limitation on Other Liability", that once Notice against a particular item or items has been received, and then Countered by the accused (defendant), the accusing Claimant (person alleging infringement) has "not less than 10, nor more than 14" days to respond to any Counter Notice with appropriately authoritative documents (e.g. a Restraining Order) else access to/use of alleged material must be restored or reinstated [1].

What this means in practice is two-fold; 1) once IMVU receives a Counter-Notice they are obligated to reinstate products within 14 (business) days, and 2) once an item has been reinstated it can only be removed (within the confines of DMCA) on receipt of a Court Order.

In other words, reinstatement does not represent further opportunity for the Claimant (Accuser) to make additional claims against the same items through new/different Notices - at this point doing so would be a material abuse of DMCA procedures. Similarly, if IMVU does not reinstate content upon receipt of Counter Notices they are not fulfilling their obligations as a Service Provider indemnified against liability.

[1]The full text of the appropriate section defining the time-frame within which content must be reinstated and/or challenged within are Sec (G) (2) (B) & Sec (G) (2) (C);

(B) upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and

(C) replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider’s system or network.
(emphasis added)