Consequences of filing a false DMCA Takedown Requestby Aaron Kelly (The Kelly Law Firm)
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.