Liability for Bogus DMCA Takedown Notices and Counter-Notices

The Digital Millennium Copyright Act’s mechanisms are an extremely effective way for online marketers to protect their intellectual property rights.  Frequently, the DMCA is also utilized in order to harass online service providers, chill online speech and stifle marketplace competition.

When an online service provider is given notice of infringing material being posted on its network, it often takes the form of a takedown notice.  Online service providers will typically respond by automatically removing the complained-of material, without assessing whether the disputed content is actually infringing.

The DMCA notice-and-takedown procedures also provide a counter-notice mechanism permitting users to challenge baseless infringement allegations aimed at curbing competition in the online marketplace, and to demand that the subject content be placed back online.  Depending upon the circumstances, senders of abusive takedown notices may be persuaded to stand-down upon receiving a counter-notice and being reminded about the consequences of misrepresenting that the subject content is infringing.

The DMCA provides what such notices must contain and how the action or inaction of the original complaining party will impact treatment of the subject content.  Once a counter-notice is sent, an online service provider may replace the disputed content after ten business days if the complaining party has not filed a lawsuit.  An online service provider is required to replace the disputed content within fourteen business days.

Prior to issuing a DMCA takedown notice or counter-notice, however, Internet marketers would be wise to consider that the DMCA requires a statement made, under penalty of perjury, that the information in the notification is accurate or that the affected material was removed as a result of a mistake, as the case may be.  The DMCA creates liability for knowingly materially misrepresenting that material or activity is infringing, or that material or activity was removed or disabled by mistake or misidentification.

A violation of this provision can result in liability for any damages, including costs and attorneys’ fees, incurred by a party that is injured by such misrepresentation.

At least one court has concluded that “knowingly” means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.  “Material” has been interpreted to mean that the misrepresentation affected an online service provider’s response to a DMCA letter.

Those on the receiving end of wrongful takedown demands have recently won damages, based upon a fair use defense that no reasonable copyright holder could have believed that they were protected by copyright.  Nevertheless, while the DMCA provides robust safeguards against abuses of the takedown regime, including an attorneys’ fee-shifting provision designed to incentivize parties to only pursue meritorious copyright-related claims, DMCA abuse is unfortunately common.

Those that misuse the DMCA takedown and counter-notice procedures may very well find themselves on the defending end of a lawsuit that may also include allegations of intentional interference with business relationships.

If you are uncertain regarding the legality of specific content, including whether content is covered under the fair use doctrine, please contact an experienced online intellectual property attorney.

Information conveyed in this article is provided for informational purposes only and does not constitute, nor should it be relied upon, as legal advice. No person should act or rely on any information in this article without seeking the advice of an attorney.

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