Consequences of filing a false DMCA Takedown Request - Intellectual Property Legal Blogs Posted by Aaron Matthew Kelly - Lawyers.com

Consequences of filing a false DMCA Takedown Request

The Digital Millennium Copyright Act was enacted in order to
create safe harbor provisions for Internet content providers who
register their contact information, against copyright infringement
claims. The law allows people who allege digital copyright infringement
of their works to send a notice, under penalty of perjury, to the party
providing the content, alleging copyright infringement and requesting
that the material cease being provided for access.

As an example, a
website could be providing a copyrighted song on it without the
copyright owner’s permission. The person whose copyright was infringed
could then send a DMCA takedown notice to the webhost which was
providing the hosting service for the site. The host would forward the
request to the person who was responsible for the website, and, absent a
counter-notice being sent by the website owner, the content would be
blocked by the webhosting company. The webhosting company, by taking
part in this process, creates a defense to copyright infringement under
the DMCA’s provisions.

This creates a simple system for people
whose copyright has been infringed to protect their work without going
through complicated litigation unless a counter-notice is filed. DMCA
compliant providers are likely to respond quickly to alleged
infringement and block access to it on their websites.

However,
some people abuse the DMCA system. Despite not having a valid claim of
copyright infringement, a person who wants content taken down may send a
takedown notice anyway, in order to have material they find offensive,
defamatory, or otherwise objectionable removed, or simply to harass the
person responsible for the account which will be affected by the DMCA
notice. What many who abuse the DMCA system do not realize is that they
can be sued and held civilly liable for the havoc they wreak by sending
these fake notices.

A perfect example of this is the case of Online Policy Group v. Diebold, Incorporated.
Diebold made voting machines used in US elections. Online Policy
Group was critical of Diebold’s machines, and released e-mail
correspondence from the company that they had obtained onto the
Internet. Diebold sent DMCA takedown requests to have access to the
e-mails that Online Policy Group had posted online removed.

Online
Policy Group sued Diebold over the takedown requests, arguing that the
Group had the legal right to publish the e-mails. A California court
agreed with the Group and granted a request for summary judgment, after
which Diebold settled with the Group to pay $125,000 for their monetary
losses and legal fees.

The case was just one of many which have
been fought over unsubstantiated DMCA takedown requests. Another case
was that of Michael Crook, a controversial public speaker who appeared
on Fox News and was subsequently criticized on a website which used a
thumbnail image of him on their site. Not only was a thumbnail image
fair use, but since it was Fox that made the show, Crook could not even
claim to be the owner of the broadcast. The case was settled and Crook
agreed to a number of embarrassing conditions, including being required
to take courses on copyright law, to never again file a Cease &
Desist request regarding the image of him on Fox News, to publish a
public apology, and other inconvenient conditions for him. He was not
required to pay monetary damages because he was indigent.

With
these cases in mind, and considering the enormous hassle that a false
DMCA takedown request can result in, it is important for people to
refrain from sending unsubstantiated takedown requests lest they face
monetary damages and other court orders. It is also important to
remember that, even if someone is willing to risk these civil damages,
there are also criminal sanctions available for false DMCA takedown
request senders since the requests are sent under the penalty of
perjury.

The best strategy when dealing with content you don’t
like is to seek the advice of legal counsel. You may very well have a
case for libel or another cause of action that you can use to get
monetary damages from someone who posts something you don’t like, and to
get an order requiring them to remove the content. However, alleging
copyright infringement when it does not exist is not the proper way to
proceed and can only hurt your case since it gives the other side the
ability to sue you, in addition to your suing them.

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Aaron Matthew Kelly

Licensed since 2007

Member at firm Kelly / Warner, PLLC

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