How to resolve being guilty of DMCA infringement

An e-commerce site I’ve been working on has received a DMCA notice in webmaster tools and the index page of the site has been removed from the SERPS.

The homepage did in fact use 2x images to which it had no right (99% of all the images on the site are professionally produced original content …)

Webmaster tools allows you to file a counter notice but it says “If the content on the page was infringing at the time the original removal request arrived, your counter notice is not legally valid. Do not submit a counter notice if there was illegal content, even if it’s now been removed.” - does this mean I shouldn’t even bother?

It’s also possible to claim you were using the material under “fair use” - if the images weren’t used to promote the products directly but rather as “decoration” on the homepage would fair use be a valid claim?


If you’re using someone else’s images without permission then that is copyright infringement, not “fair use”.

Fair enough (no pun intended)

What’s the best course of action (if any) ?

(Just to be clear, I do support Google’s action here. My own content’s been stolen before and although I was able to resolve the matter through the offender’s hosting company I had no idea that a permanent ban in the SERPS could be achieved from just one single offence. Personally I find that a little harsh, especially considering the context of 99% of the site’s content being original and professionally produced (paid photographer). Just to illustrate this is not a site built in bad faith)

My take is that “counter notice” and “fair use” are for when you want to still use the copyrighted material

If Google does permanently remove a site from the SERPs (to prevent access to illegal content) for a single violation it is draconian. I didn’t find any documentation, but hopefully there is some way to say “I’ve complied with the removal request”. It may take time to get the site reviewed and approved. And a “strike against” may be recorded. But as long as the site has complied with the take down request I can’t see why it would need to be a permanent removal from the SERPs unless maybe it wasn’t a first violation.

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