Our Part VII article began the discussion of what to do when you receive a VeRO notice. We discussed first steps and mind set. Part VIII takes up at the point when your review of the facts indicates that you have been wrongly targeted by VeRO. eBay doesn't really tell sellers about the counter-notice option, a powerful tool that can make a difference in the outcome of your situation.
The seller has very few rights within VeRO, since the rights owner is favoured. However, the DMCA gives sellers the opportunity to file a counter-notice if they believe they have been incorrectly targeted. The DMCA notice-and-takedown procedures provide you with protection from a wrongful claim of copyright infringement. The DMCA requires your service provider to notify you promptly when it removes any of your content because of a takedown notice, and you have the right to submit a counter-notice asking that the material be put back up. There is no specific time limit for submitting a counter-notice but, you should not delay unreasonably in doing so. If you send a counter-notice, your online service provider is required to replace the disputed content, unless the complaining party sues you within fourteen business days of your sending the counter-notice. (Your service provider may replace the disputed material after ten business days if the complaining party has not filed a lawsuit, but it is required to replace it within fourteen business days.)
If you don't know about the counter notice, you will have a difficult time finding the information on eBay. However, if you go to http://pages.ebay.com/help/tp/programs-vero-ov.html you'll find information. eBay Says:
A counter notice is a form provided by eBay in compliance with the requirements of the federal Digital Millennium Copyright Act. Once we receive a valid counter notice, we'll provide a copy of the notice to the VeRO member and inform them that the listings will be reinstated after 10 business days if they don't inform us that they have filed an action seeking a court order to restrain you from re-listing the items.
This sounds like the answer to a seller's problems, but it's not a cure-all, especially since there can be repercussions. Before you send a counter-notice, you should consider carefully whether you are in fact infringing the complaining party's copyright. There are two reasons for you to consider this carefully.
First, the counter-notice requires you to state, under penalty of perjury, that you have a good faith belief that your material was wrongly removed. You do not want to make this claim lightly, because it might come back to haunt you.
Second, if the complaining party has a good infringement claim, sending a counter-notice may trigger a lawsuit. If you are not prepared to stand up for your use of the copyright owner's work in a lawsuit, you should think twice about firing back a counter-notice. That said, copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.
File a Counter-Notice
Send an email to firstname.lastname@example.org and email@example.com to request a counter-notice. Include your eBay account name, and item numbers that were taken down. You must send this form from the email address you have on file with eBay.
You'll receive the counter-notice within 24 hours. FAX the counter-notice ASAP. One counter-notice can be for several items, as long as they were all taken down by the one complainant. The fax number will be on the counter-notice.
When filling out the counter-notice, use the mailing address you have on file with eBay, even though eBay tells you that you need to supply your home address. That's simply not necessary.
You'll receive an email within one business day informing you that the counter-notice was received. eBay sends a copy of the counter-notice to the VERO member. The law gives the VERO member 14 business days to reply. eBay gives them 10 days. Unless the claimant intends to file suit, you will receive an email from eBay with the subject of 'eBay Legal Notice - Listing Reinstatement Per Counter-Notice' explaining that a 'relist' link is now available on the items you filed a counter-notice on.
File an Appeal
In addition to filing the counter-notice, you can file a regular appeal with eBay. Go to http://pages.ebay.com/help/tp/programs-vero-ov.html to file the online appeal. These are not usually successful, but it's best to exhaust all avenues available to you.
Respond to the VeRO Complainant
Along with your counter-notice and appeal, you should also respond to the VeRO complainant. Lay out your reasons for believing that you are not in violation, e.g., proof of purchases, origins of images and so on. You may also be able to claim protection from something called the First Sale Doctrine. Read Part IX of our VeRO program series to understand the First Sale Doctrine and how it can help you. We'll also give you some tips on how to work with the rights owner.