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The TOS states that users are responsible for filing DMCA takedown counterclaims, and gives guidance:

A subscriber who believes they are the wrongful subject of a copyright takedown notice may file a counter notification with Stack Exchange by providing the following items in writing to the Designated Agent at the address below ...

Section 3 further drives this point home:

Subscriber represents, warrants and agrees that it will not contribute any Subscriber Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party, ...

Under the assumption that the infringement claim is invalid and thus Section 3 was not violated, and also under the assumption that filing a counterclaim is a desired action, but in the cases where:

  1. The original author no longer has an account, or
  2. The post was disassociated from the original author's account, or
  3. The post is community wiki (including tag wikis, not just Q&A) / documentation.

Who is responsible for filing the counterclaim in those three scenarios? The TOS does not seem to provide clear guidance for these situations.

Also, just in case this is a different question: Regardless of the validity of the claim itself, who can (and can't) file a counterclaim in those scenarios (for example, if a community expresses a strong desire to defend content that does not have clear authorship, who is and is not allowed to counter)?

This question was prompted by this recent event.

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    If the author no longer wanted to be associated with the content, then it stands to reason they would not be interested in counter-claiming and thus... no count-claim would ever be filed. Why would the responsibility fall onto someone else? – animuson May 31 '17 at 17:55
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    @animuson I'm not sure. Perhaps SE was strongly interested in keeping it around for some reason, possibly for their own reasons or possibly e.g. by community request. Situations 1/2 are very hypothetical and include "the assumption that filing a counterclaim is a desired action". In any case situation 3 is more realistic, and also the TOS's language sort of assumes a clear, single, existing author in its guidance. – Jason C May 31 '17 at 17:57
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    (4) The post is "Java Arrays" in Documentation. – user315433 May 31 '17 at 18:02
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    @animuson (Also, fwiw, your reasoning makes sense but at the same time we can't necessarily make assumptions about why an author requested a disassociation. Still, yeah, those first two are hypotheticals, I don't want to get too sidetracked.) – Jason C May 31 '17 at 18:04
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    Another question - can any user associated with a marked URL file a counter claim? Most of the take down notices only link to the question page. Can one of the users that provided an answer file a counterclaim? – Andy May 31 '17 at 19:08
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    @Andy Eh, it depends on the details of the claim, which in this case are scarce and vague (I might elaborate on that later at some point). This is probably the sketchiest DMCA notice I've seen come through in my time, and there was a lot of arguing internally about the merits of it. But we have to trust the decisions of our lawyer, not our gut feelings. – animuson May 31 '17 at 19:18
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    Original poster's account can be deleted if they did something bad like manipulated the site for votes or posted spam or acted very immaturely for too long. The reasons why a user doesn't have an account anymore or is not associated with their own posts otherwise are not limited by their desire not to own these posts. Please don't forget that. And the site's readers could still find the content left by any user informative/interesting/useful regardless of what happened to the OP. I would even say whatever happens to OP is completely irrelevant in regards to DMCA counter-claims. – user1306322 Jun 1 '17 at 19:45
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    I tentatively want to add "(4) The original author is deceased" to this (or probably, more generally, "the original author is no longer reachable"). I'd like to know, but I'm also not sure if that moves this closer to "too broad" territory, or asks for too much, or is just a silly point. So I'm just noting it in this comment instead. It can be a bonus question. – Jason C Jun 2 '17 at 17:14
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    I'm no lawyer, but how about users who reside in areas outside of the US? If the DMCA is a US-only law, surely they cannot be held as the one who needs to appeal as they would be outside the jurisdiction – Toshinou Kyouko Jun 6 '17 at 7:19

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