Merch by Amazon Ignoring Counter DMCA Notices
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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.
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:
- Title of the shirt
- ASIN of the shirt
- The text: “I declare under penalty of perjurty that I believe in good fait that the material was either misidentified or mistakenly removed.”
- Your name, address, and phone number
- 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.”
- 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!