The Problem with a Digital Economy

In a digital world, content creators such a musicians, photographers, authors, and vloggers find themselves consistently striving to safeguard their work from infringers and pirates. While the internet serves to distribute content to millions of eager supporters and consumers, it dually serves up the same content to bad actors seeking to reap the monetary benefit that rightly belongs to the content creator, i.e., the copyright holder.

Foreseeing the complications that such vast access would create for copyright holders and service providers, Congress enacted legislation in 1998, the Digital Millennium Copyright Act (“DMCA”), with the central purpose to “facilitate the robust development and world-wide expansion of electronic commerce, communications, research, development, and education in the digital age.”[1]

What can the DMCA do for Me?

Most importantly, the DMCA allows copyright owners to identify and report infringing content to the Designated Agents of Online Service Providers (“OSPs”) who are then obliged to remove or disable access to the material.[2] Should the OSP fail to remove the content in a timely manner, they find themselves beyond the protections of the DMCA “Safe Harbor” provisions and may be liable for infringement.[3] To search the U.S. Copyright Office’s DMCA Designated Agent Directory and to see what constitutes a legally effective takedown notice, click here.

Should I File a Counter Notice?

Let’s say you are on the receiving end of a takedown notice. Perhaps you posted a video to your YouTube® page or personal blog and had some music playing in the background. Maybe you critique other videos using clips of another’s content in your own video for emphasis. Either way, you are now faced with a decision: either accept that your content has been removed and do nothing, or file a counter notice alleging that your content has wrongfully been removed. There are pros and cons to both courses of action. For a better understanding of the notice and takedown process, visit this link for an interactive guide by the Copyright Alliance.

False Claims Under the Act

When Congress passed the DMCA, it also predicted that the notice and takedown process might be weaponized by copyright holders or others seeking to gain an unfair advantage. Because this process is reserved for lawful action against infringement, the DMCA also provides the following language:

 Any person who knowingly materially misrepresents under this section

(1) that material or activity is infringing, or

(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorney’s fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.[4]

Now, let’s translate that.

First, the statute says that any person who submits a takedown notice for content they know is not actually infringing will be liable for any damages (money) and attorney’s fees (more money) incurred by the person whose content was removed or disabled. In 2015, the United States Court of Appeals for the Ninth Circuit held that the DMCA requires copyright holders to consider whether allegedly infringing material is fair use before submitting their takedown notice.[5] A fair use analysis is fact-specific, and we strongly suggest you consult an attorney before taking action. For a brief explanation of the factors most critical to a fair use analysis, see this article by an expert copyright attorney.

Second, a person who claims that content was removed or disabled by mistake or misrepresentation, knowing full well that it was a proper takedown request, shall also be liable for damages and attorney’s fees incurred by the party who filed the valid takedown notice. We see now that this statute cuts both ways, against both the initial sender and the receiver of the takedown notice. Therefore, if you have been issued a takedown notice for content you posted, you should do your own due diligence before responding with a counter notice.

If you have been targeted by a notice of action under the Digital Millennium Copyright Act or have received a counter notice, contact a copyright infringement attorney at Revision Legal by calling 855-473-8474 or by completing the contact form.

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[1] S. Rep. No. 105-190, at 1-2.

[2] See 17 U.S.C. § 512(c)(3)(A).

[3] Id.

[4] 17 U.S.C. § 512(f).

[5] See Lenz. v. Universal Music Corp., 815 F.3d 1145, 1157-58 (9th Cir. 2016) (“Copyright holders cannot shirk their duty to consider – in good faith and prior to sending a takedown notification – whether allegedly infringing material constitutes fair use, a use which the DMCA plainly contemplates as authorized by the law.”).