By Purple Fox Legal
February 16, 2022
It’s a story that happens all too often on the Internet today: a content creator spends hours shooting, editing, and posting a video to a platform like YouTube, Twitch, or Instagram. Suddenly, that same creator receives a notice that their content violates someone else’s copyright. And now, as a result, the video can be removed, muted, demonetized, or the creator’s account could even be permanently disabled.
DMCA takedowns can be a serious issue for content creators today. The reason for this is that it is incredibly easy for anyone to claim that a video violates their copyright. And, when this happens, the content creator’s work can be wrongfully taken off the Internet. This article provides a brief oversight of what DMCA takedown notices are and highlights your options if you receive a DMCA takedown notice for copyright infringement.
Congress created the Digital Millennium Copyright Act of 1998, or DMCA, to address concerns raised by copyright owners and Internet Service Providers in an effort to decrease the prevalence of unauthorized copying and distributing of copyrighted works online. The DMCA has the power to bring criminal charges against those who infringe against someone else’s copyrights.
The DMCA created a legal course of action that copyright holders could take against copyright infringers, as well as their Internet Service Providers and platforms. To avoid liability for the actions of their users, ISPs and platforms must now follow specific procedures under Section 512 of the DMCA.
One of the procedures that an ISP or platform must take to avoid liability under the DMCA is to send a formal notice to a user notifying them that they are violating a copyrighted work of someone else. This obligation is triggered when the ISP or platform is made aware of potential infringement, either from their own screening systems or when someone asserts that copyrighted work that they own is being infringed.
Unfortunately, anyone can assert that their work is being infringed whether or not they actually own a copyright to any material used. They can also make this claim despite any defenses that may exist, such as fair use. This is because, in order to file a takedown notice, all someone must do is claim that they are the copyright owner of a work, state that their work has been infringed upon, and have a good faith belief that their work has been infringed.
It’s quite astonishing in reality. The total number of DMCA takedown notices being filed – and the number of false DMCA takedown notices being sent – is perplexing. As of October 2021, Google has processed more than 5.3 billion delisting requests for copyright infringement. However, approximately 99.95% of DMCA takedown submissions that Google receives are bogus claims from non-indexed websites or bots.
And, it’s not only anonymous internet users and bots that are sending unsubstantiated DMCA takedown notices. Major copyright owners such as film studios and record labels have increasingly relied on automated systems for issuing enormous numbers of takedown notices. These systems, known as “robo-takedowns,” issue hundreds of millions of notices per month. However, these systems often do not assess whether the materials in question are actually infringing. In addition, they do not account for fair use, and often fail to recognize public domain materials, open-source software, and materials that have been posted with the consent of the copyright owner.
Because there is such a large number of unsubstantiated DMCA takedown notices being sent, it is vital to know how to respond if and when you receive one.
Once you receive a DMCA takedown notice, you should review the alleged copyright infringement listed on the notice to see if it is, in fact, legitimate. If you can confirm that there is copyright infringement, you should remove the identified material from the Internet immediately.
Typically, the first time you receive a DMCA takedown notice will not lead to a lawsuit against you. This is because many ISPs and platforms employ a “copyright strike” system to mitigate copyright infringement. For example, YouTube uses a copyright strike system for content creators who have been sent a DMCA takedown notice. According to YouTube support, “when you get a copyright strike, it acts as a warning. The first time you get a copyright strike, you’ll need to go through Copyright School – Copyright School helps creators understand copyright and how it’s enforced at YouTube.”
If you have received a DMCA takedown notice and you believe there has been no copyright infringement, Section 512(g) of the DMCA authorizes you to send a Counter-Notification to the ISP, the copyright owner, or their agent. The Counter-Notification will state that you have a good faith belief that the material removed or disabled was done so because of a mistake or misidentification of the material. It will request that the material be replaced and/or no longer disabled. Importantly, your Counter-Notification must include all the content required by Section 512(g)(3) of the DMCA.
The DMCA also creates a legal course of action against anyone who, in connection with the DMCA, knowingly misrepresents that material or activity is infringing or that material or activity was removed or disabled by mistake or misidentification. Such a person can be held liable for any damages, including costs and attorney’s fees, incurred by the alleged infringer, by a copyright owner or licensee, or by a service provider who is injured as a result of the service provider relying on such misrepresentation.
If you have received a DMCA takedown notice and are confused or worried, speaking with an attorney with expertise in copyright law in your state is recommended. If you think you have been wrongfully sent a DMCA Takedown Notice, Purple Fox Legal can help you understand your legal options and obligations.