Merch by Amazon Ignoring Counter DMCA Notices

Since late 2015, Merch by Amazon has been one, if not THE biggest opportunity for content creators and graphic artists to turn their hard work into cash by selling print on demand t-shirts (and soon other products!). Since the launch of the program, a lot has changed and almost all of it for the better. Pixel for Pixel copycats are now at a minimum, fulfillment capacity has increased, and tiers have also increased (although slowly).
One of the biggest problems on the platform though has been the blatant abuse of the copyright system. If someone copied your design (and remember, Amazon is getting a lot better at detecting this with the release of their image recognition software on the backend) the only recourse you had was reporting that design to Amazon through their infringement report or sending Amazon a DMCA notice. DMCA stands for The Digital Millennium Copyright Act. To quickly sum up what it is straight from Wikipedia:

The Digital Millennium Copyright Act (DMCA) is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization (WIPO). It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures (commonly known as digital rights management or DRM) that control access to copyrighted works. It also criminalizes the act of circumventing an access control, whether or not there is actual infringement of copyright itself. In addition, the DMCA heightens the penalties for copyright infringement on the Internet.

Under this, you could send a DMCA takedown which is a request of the owner of the content or the owner of the copyright to take down infringing content. It is your right to process and was what you had to do in order to take down infringing works on Merch.
Now, I mentioned that this system was full of abuse. What we have been seeing often is that someone will come in to your niche, notice that you might be outselling their design, and send a false take down to Amazon. Since this is essentially a legal issue, Amazon removes your design from their platform and all of a sudden you are out a bunch of royalties simply because you were outselling the dishonest competition.
Do not fear though! You do have a pathway to take if this happened to you. It is called the counter DMCA notice.

Counter DMCA?

If you get a DMCA notice, you have the right to submit a counter notice. This is asking for the material to be put back up and typically there is no specific time limit to submit this counter notice.
If you DO send a counter notice, the service provider who removed the content is required by law to replace the content that was disputed… UNLESS the complaining party sues you within 14 business days of you sending that counter notice.
You are essentially forcing the hand of the person who filed a dispute against you to prove in a court of law that you infringed on their rights. If they are not willing to back up their claims in court, then your content goes back up and you can continue selling.
When dealing with Amazon, here is what you previously needed to provide:

  1. Title of the shirt
  2. ASIN of the shirt
  3. The text: “I declare under penalty of perjurty that I believe in good fait that the material was either misidentified or mistakenly removed.”
  4. Your name, address, and phone number
  5. The text: “I state that I consent to the jurisdiction of the federal district court for the judicial district in which my address is located, and that I will accept service of process from the person who provided the complaint set forth above.”
  6.  Sign Your Name

Remember again, this is a matter of legality and should only be submitted if you are willing to face the accuser in court. You could be sued and you need to be willing to defend yourself.

Merch Ignoring Counter DMCA Notices

Here is where things get tricky and something that it seems Merch by Amazon has just changed.
Previously, submitting a counter notice was your only path of action if someone falsly reported you. It was the only way to get your content back up online and remove the ding on your account. Now, it looks like Amazon has taken this away from us as sellers.

Since the way the agreement is structured when you sign up to the Merch by Amazon program, technically Amazon is the seller of record. Since Amazon is the seller of record on all designs, and they have the sole discression of what they keep up on their site and remove, you are now out of luck. If you submit a counter DMCA, it will now fall on deaf ears.
The above screenshot was sent to me by a friend who was falsely reported by a third party seller not residing in the United States.
What do you think of the changes to the Merch by Amazon system? Let us know in the comments below!

Comments
  • It seems that Amazon just painted themselves into a corner.
    If they took down your content because of a Digital Millenium COPYRIGHT Act Complaint, and are then claiming that they will not hear your DMCA Counter – then your recourse would be to send a demand letter that they reinstate your content, as Amazon is the seller of record, and as such, your content was not third party content and was not subject to a DMCA Takedown notice in the first place!
    Beyond that, I’ve added a new column to my records – and that’s the screenshot of “First Available” in Merch Central so that I can provide proof to Amazon in the form of “Mine was on Merch First”.
    But I seriously suspect that the Copyright Complaint process will change yet again…

    • Yes, I don’t even have a clue about all of the wording, but the first thing I thought was well……how could you take it down in the first place. common sense.

  • So Neil, basically:
    if someone falsely reports our shirt, we’re pretty much at the mercy of Amazon….right?
    Amazon will have the final word if our shirt was unjustly taken down or not?
    Thank you for this article Neil.
    Also Neil, I missed the entire month of October uploading shirts. Now I feel really behind competition, and I feel sort of “unmotivated”. Any tips?
    thanks

    • That is sort of how it is worded so I am not sure where Amazon will go from here.
      You need to hop on uploads right away! We are coming into the two most profitable months of the entire year on Amazon!

  • Neil…..I got a design rejected for rule 5.1
    “Shipping and Fulfillment
    5.1 Quality, Shipping, and Fulfillment: Designs or items that make promises about the quality of the product, speed of shipping or fulfillment, and the manufacturing country of origin. For example, using terms such as high quality, satisfaction guaranteed, ships in 2 days, Prime shipping available, or printed in the USA.”
    Not sure what i have done wrong here but my question to you is how many rejections can you have before the account is terminated? Also is there a time limit of sorts on these penalties?

    • Your best course of action is to respond to the email and ask them what word triggered the rejection so you can fix that in the future. No one actually knows how many rejections you can get so just do your best to figure out what the issue was and try not to make it going forward.

    • Amazon has changed its rules about describing the quality or sizing of a T-shirt–probably because they change suppliers often. If you go back through your listings and take out any mention of “high quality” or “Order a size up” etc. you should be good to go.

  • Hi Neil.
    Good article, there is a line in your article that caught my attention, It says that Amazon will soon introduce other products. Has there been some sort of update about this that was sent by them?

  • I got pretty much the same response from Amazon Merch and I am in the USA.
    “Thank you for your message. We do not accept Digital Millennium Copyright Act counter-notices to appeal the removal of Merch by Amazon content. We ask that you please resolve this matter with the party that made the original claim. If you are unable to resolve this matter with that party, and you have specific evidence to support your claim that the content removed is not infringing, please contact merch-sellers-contactus@amazon.com for additional review of this matter.

  • Eh I’m not sure how Amazon could justify getting around the DMCA like that. Even if they’re the seller, they’re also *hosting* the infringing content. As an illustrator I would not care who the seller is, if they are using artwork without a license then it needs to be taken down. So Amazon does not want to allow counterclaims anymore, so I guess that means that your only recourse is to find whoever submitted the first claim and submit a takedown on their infringing design? There are no winners in that scenario either. It’s frustrating because again it shows that Amazon is not very friendly to content creators… if it takes you 5 minutes to throw together a text design then it stings a lot less to have it taken down than if someone takes down your illustration or hand lettering that you spent 5+ hours on.

Leave a Reply

Your email address will not be published. Required fields are marked *