Under OCILLA/DMCA, counter-notification cannot be accepted by your provider and is not legally usable unless access to the alleged offending material has been completely prevented. 17 USC 512(d)(3). The material must stay removed completely for at minimum 10 (ten) business days and at most 14 (fourteen) business days to allow the complainant to file suit or otherwise obtain an injunction if they so desire. 17 USC 512(g)(2)(B) and (C). That's with a counter notice; without one, the material can never be restored.
So, your scenario then becomes:
- Wolfire > Apple: DMCA
- Apple > Pirate: We have received a DMCA and removed it
- Pirate > Apple: Counter notice
- Apple > Wolfire: Here's a counter, we will restore in 10 days unless you sue
- (10 business days)
- Apple > Pirate: OK, it's back
After the waiting period, you or the provider can restore access with the DMCA's blessing. DMCA only requires providers to "act expeditiously" to remove access to material, so what "expeditiously" means is left to interpretation. I doubt Apple would leave anything up for long, though.
When you get a serious DMCA complaint -- meaning, not one of the automatic-fire BitTorrent ones from MediaSentry or whatever -- try a counter-notice without removing the content and see what your provider does. If they abide by the law, they'll immediately reject it and ask you politely to remove the content, or they will for you.
But wait, you say, doesn't that encourage frivolous DMCA complaints to remove content from the Internet that I do not agree with? All I have to do is file a well-prepared DMCA complaint that asserts copyright and the content is federally required to disappear?
Answer: Yes.
(IANAL, but I have researched it extensively to draft policy.)
I checked the statute. You're right about a DMCA notice / counternotice exchange essentially requiring a minimum of 10 days of the disputed content being offline. Thanks, I like learning things.
Under OCILLA/DMCA, counter-notification cannot be accepted by your provider and is not legally usable unless access to the alleged offending material has been completely prevented. 17 USC 512(d)(3). The material must stay removed completely for at minimum 10 (ten) business days and at most 14 (fourteen) business days to allow the complainant to file suit or otherwise obtain an injunction if they so desire. 17 USC 512(g)(2)(B) and (C). That's with a counter notice; without one, the material can never be restored.
So, your scenario then becomes:
After the waiting period, you or the provider can restore access with the DMCA's blessing. DMCA only requires providers to "act expeditiously" to remove access to material, so what "expeditiously" means is left to interpretation. I doubt Apple would leave anything up for long, though.When you get a serious DMCA complaint -- meaning, not one of the automatic-fire BitTorrent ones from MediaSentry or whatever -- try a counter-notice without removing the content and see what your provider does. If they abide by the law, they'll immediately reject it and ask you politely to remove the content, or they will for you.
But wait, you say, doesn't that encourage frivolous DMCA complaints to remove content from the Internet that I do not agree with? All I have to do is file a well-prepared DMCA complaint that asserts copyright and the content is federally required to disappear?
Answer: Yes.
(IANAL, but I have researched it extensively to draft policy.)