Wednesday, July 16, 2008

DMCA Takedown Notices Out of Control

Lately, I have noticed an alarming number of improper DMCA take down notice requests proliferating cyberspace. What is a DMCA take down notice? An owner of a copyrighted work may request that material appearing on the internet that infringes upon the owner's copyright be removed. This is accomplished by simply sending a short, form letter called a DMCA take down request to the website's hosting company. In short, the letter needs to identify the infringing material and state under penalty of perjury that the sender of the letter owns a valid copyright in the material allegedly infringed upon. Once received, the hosting company may escape liability for contributory copyright infringement by removing the material. Then, the burden shifts to the website owner to file a counter-notification within 10 days if he/she believes the DMCA take down notice is erroneous or improper. The ball then goes back into the court of the alleged copyright owner to file suit in federal court.

The problem with this system is that many, many content owners attempt to flex their muscles and overexert their copyrights - if they even have valid copyrights in the first place. This leads to thousands of unnecessary take down notices and abuse, not to mention interruptions of valid E-commerce websites. Hosting companies conduct no due diligence and are not even required to do so under the Digital Millenium Copyright Act. Thus, someone with absolutely no copyrights whatsoever has carte blanche to get your site pulled off the internet on a whim.

Recently, an internet content provider had its content pulled from Youtube due to an erroneous DMCA take down notice filed by Viacom. Now, the DMCA does provide for damages in the event of wrongful take down notices but, the prospect of suing large multi-national corporations is not too appealing. Also, suing individuals for wrongful takedown notices is most likely not a very economical decision given the expense of litigation.

My proposed solution is to place at least a minimum requirement of due diligence on the part of internet service providers to make a good faith determination of whether or not the person or entity filing the DMCA take down notice has a colorable claim of copyright. If you have questions about copyright issues, contact a copyright attorney for advice.

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