Overview
Digital Millennium Copyright Act (DMCA) takedown notices are an important and powerful tool for copyright holders seeking to protect their rights.
The DMCA was enacted to provide third-party service providers (like Amazon, for example) with safe harbours from liability that might flow from facilitating the sale or distribution of copyrighted materials if they promptly act upon learning of a possible copyright infringement.
The DMCA takedown procedure works like this:
- A person who believes there is an unauthorized use of their rights may submit a notice to the provider that, among other things, identifies the copyrighted work and the allegedly infringing material and states that the complaining party has a good faith belief that the use of the material is not authorized.
- Upon receipt of such notice, the service provider can insulate itself from liability by removing the allegedly unauthorized content.
- The alleged infringer then has one of two options: it can do nothing and accept that the content will remain de-listed, or submit a counter-notice that must, among other things, state, under penalty of perjury, a good faith belief that the material was removed or disabled because of mistake or misidentification.
- Upon receiving a counter-notice, the service provider must restore the removed material unless it is provided notice within ten days that the party who submitted the original notice has filed an action seeking a court order to restrain the infringing activity.
The appeal of submitting DMCA takedown notices is compelling: a fast and inexpensive way to stop infringement. Relief is granted within days rather than years, as might be the case in federal court. Of course, the decision to remove or disable allegedly infringing content is ultimately up to the third-party providers. Still, the DMCA does a good job of incentivizing these providers to remove content that appears infringing to avoid any possible monetary liability. For this reason, takedowns are often our first step as part of an overall strategy to maintain the strength of and enforce our clients’ rights.
However, it is important to be aware of the risks of using this procedure too broadly. There is an increasing trend of accused infringers pushing back and bringing creative claims in federal court. For example, we have seen countersuits for defamation and creative attempts to argue that the DMCA takedown procedure amounts to de facto injunctive relief without a court order and that notices should be withdrawn on this basis. While there are strong defences to these and other such claims when the DMCA takedown notices are appropriately used, it is worth noting that this can increase the cost and risk associated with the procedure.
Professionals
Stefanie Garibyan
Counsel
