Automattic, Inc., a web development corporation that parents the free blogging tool, WordPress, has filed two separate lawsuits concerning egregious cases of Digital Millennium Copyright Act (“DMCA”) takedown notices. In filing these two suits, Automattic has paired up with the individuals who run the site RetractionWatch.com (“Retraction”) for one of the lawsuits, and student journalist Oliver Hotham, for the other.
Specifically the lawsuits concern parties using bad faith DMCA takedowns as a tool to censor criticizing content on websites, rather than for a legitimate copyright infringement claim. Notably, DMCA’s primary purpose is to allow copyright holders to request their work be taken down when there has been legitimate infringement of their work. However, the other side of DMCA, which Automattic seeks damages under, is section 512(f), which allows for lawsuits against anyone who “knowingly materially misrepresents” a case of copyright infringement. With easy-to-publish websites like YouTube, legitimate DMCA takedown notices are common, but as Automattic has increasingly seen, DMCA is also being abused with false complaints from individuals who simply dislike or disagree with content.
Here, the lawsuit involving Retraction, a blog that reports on retractions of scientific papers, stems from a reader’s dislike of a series of articles on site that were critical of researcher Anil Potti. In order to create an action under DMCA, that reader copied portions of the articles he disliked from Retraction, claimed the work as his own, and then issued a DMCA takedown notice against Retraction, the original authors. The second suit, involving Hotham, who publishes investigative articles on his own WordPress blog, involves an interview that Hotham conducted with the group, Straight Pride UK, who after the publication of their interview, no longer liked what they had previously stated on record. Subsequently, they used DMCA as a tool to try and remove the article that included their interview quotes.
Automattic’s voluntarily support of its users in these lawsuits has grabbed attention because typically the focus of 512(f) claims deal directly with the website owners, not their hosting company. However, Automattic’s General Counsel, Paul Siemniski, explained that Automattic’s goals behind their actions are to deter copyright abusers from submitting fraudulent DMCA takedown notices, and additionally, to protect users’ First Amendment rights.
Section 512(f): The DMCA’s Misrepresentation Remedy
Section 512(f) of the DMCA provides that any person who knowingly materially misrepresents that material is infringing — or that material was removed by mistake — is liable for damages, including costs and attorney’s fees, incurred by the alleged infringer or the service provider as a result of the notice. The provision was designed to deter bad-faith use of the takedown system, but courts have set a demanding standard: the plaintiff must prove that the sender knew the representations were false at the time of the notice, not merely that the legal conclusion was wrong.
The leading case interpreting this standard is Rossi v. Motion Picture Ass’n of Am., 391 F.3d 1000 (9th Cir. 2004), which held that a subjective good faith belief that infringement was occurring — even if that belief was unreasonable — is sufficient to defeat a Section 512(f) claim. Critics argue that this standard makes Section 512(f) nearly toothless in practice, allowing aggressive or negligent takedown senders to escape liability. Automattic’s litigation was part of a broader effort by the content community to push back against this norm.
DMCA Takedowns and the First Amendment
The DMCA takedown system creates a significant tension with First Amendment values. When a takedown notice is sent in bad faith to suppress criticism or commentary — rather than to address genuine copyright infringement — it functions as a prior restraint on protected speech. The affected user’s content is removed immediately upon receipt of the notice, often without any opportunity to contest the claim. The counter-notice procedure provides some protection, but the 10-to-14-day waiting period during which content remains offline can cause irreparable harm to journalists, academics, and commentators whose work is time-sensitive.
Automattic’s position — that it has standing to sue as a service provider harmed by fraudulent notices — represents an important effort to align the DMCA’s enforcement mechanisms with its underlying purpose. If platforms take a more aggressive posture against abusive notices, the practical deterrent effect of Section 512(f) increases even where individual claimants lack the resources to bring their own litigation.
What to Do If You Receive an Abusive DMCA Takedown
If you believe a DMCA takedown notice against your content was submitted in bad faith — because the sender claimed copyright ownership over material they do not own, or used the takedown system to suppress legitimate speech — you should take prompt action. File a counter-notice asserting that the material was removed by mistake or misidentification, and consult a copyright attorney to evaluate whether a Section 512(f) claim or other legal action is appropriate. Document everything: the original takedown notice, the content at issue, and any evidence that the sender lacked a good faith basis for the claim.
If you have been targeted by a bad faith DMCA takedown notice, contact the copyright lawyers at Revision Legal today at 855-473-8474 or through our online contact form.
Best Practices for WordPress and Blogging Platform Operators
Automattic’s litigation on behalf of its WordPress users highlights the importance of clear, enforceable terms of service for platform operators. A well-drafted terms of service should: (1) clearly identify what content is prohibited and the consequences of violation; (2) establish a DMCA takedown and counter-notice process that complies with Section 512; (3) include a repeat infringer termination policy that satisfies the Section 512 safe harbor requirements; and (4) require users to represent that they have all necessary rights in content they post.
For bloggers and content creators operating on platforms like WordPress.com or self-hosted WordPress installations, understanding your rights when a DMCA notice is filed against your content is essential. The counter-notice process provides an important remedy for improper takedowns, but it requires acting within the statutory timeframe and understanding the legal representations you are making when you file a counter-notice. Revision Legal advises both platform operators and individual content creators on DMCA compliance and dispute resolution.
If you have been targeted by a bad faith DMCA takedown notice, contact the copyright lawyers at Revision Legal today at 855-473-8474 or through our online contact form.
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Our attorneys have litigated in federal courts from coast to coast, before the World Intellectual Property Organization, and in international arbitration. We have taken on overseas counterfeiting networks, domain name thieves, and some of the largest companies in the world on behalf of our clients. We also handle the day-to-day work that keeps a business protected: trademark clearance and registration, copyright registration, DMCA notices, and licensing agreements.
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