The Dangers of the DMCA

Michigan attorney Carol Ruth Shepherd is a business lawyer that deals heavily with copyright issues. Yesterday, she posted a preview of an article entitled “Enforcing Rights Against Online Infringers: Brandishing the Double-Edged Sword of the DMCA” that details many of the risks and perils that rights holders face when using the Digital Millennium Copyright Act to remove allegedly infringing materials.

The article, slated to be published in the Winter 2008 edition State Bar of Michigan Litigation Section Newsletter, goes into great detail about the risks users of the DMCA face and outlines three cases where questionable DMCA notices came under fire in court.

Though the article doesn’t set any hard guidelines for filers of DMCA notices, other than encouraging rights holders to “proceed carefully with the advice of counsel to avoid injuring themselves” it is a must-read for anyone who files notices regularly or is interested in protecting their rights on the Web.

Two Traps

The article cites two common ways in which rightsholders, acting without the assistance of an attorney, can become “trapped by the DMCA.

  1. Inappropriate form letters and/or inappropriate legal claims
  2. Reliance on service provider’s individual procedures, which can unwittingly encourage fraudulent claims

The first trap contains elements discussed heavily on this site. It is important to make sure that you have a good stock letter, ideally one from your attorney, and that you only use the DMCA for cases which are clearly an infringement. Cases that involve questions of fair use, licensing disputes or other areas of law should always be handled by an lawyer.

It is your responsibility to understand the law before proceeding and if you have any questions, either lookup the information from a reliable source or contact an attorney.

The second aspect is one that I had not pondered. Previously I had commended sites such as LiveJournal and YouTube that have provided easy, non-traditional means, for every day users to file DMCA notices/

According to Shepherd, these systems can unwittingly push users into filing false notices by causing them to make false claims.

Shepherd specifically looks at Ebay’s well-known VeRO program, which allows rights holders to easily remove auctions they deem to be infringing. However, the system has been abused in the past by rightsholders seeking to stop sales that are, in truth, perfectly legal.

At least one of those cases, involving MGA Entertainment, the makers of BRATZ dolls, wound up in court.

Clearly, one should not simply follow the procedure of a host blindly and, instead, should do their own research or, even better, contact their attorney.

Case Law

The article also delves a great deal into case law surrounding questionable DMCA notices, in particular section 512(f), which allows subjects of false DMCA notices to obtain damages from the person who ordered the takedown of the work.

Shepherd’s focus was on what constitutes “good faith” when filing a notices. At issue is whether that good faith is objective, meaning that it is solely a matter of whether or not the use was infringing, or subjective, meaning that the person filing the notice truly believed that it was.

This is an area of the law that is still being settled and Shepherd goes into much more detail than we can here. However, as she puts it, there are ten cases currently in progress over this exact issue so expect updates about this in the near future.

Caveats

If I were going to criticize the article in any way, it would be that it overplays the amount of false notices and the abuse of the DMCA. In one part, Shepherd says the following:

There is no doubt that the Section 512 takedown procedure has been widely used in inappropriate ways. Both individuals and large corporations routinely use the procedure aggressively, sending cease-and-desist letters to censor opinion, to suppress the online publication of unflattering or damaging content, to attack enemies and competitors, and to enforce non-copyright intellectual property claims.

Though there is little doubt that such misuse of the DMCA does in fact take place, it is not nearly as widespread as some believe. Though cases of DMCA abuse routinely grab headlines, they are relatively few in numbers. Even the study Shepherd cites, has several flaws including sampling issues and unclear distinctions between types of misuse.

In my conversations with DMCA agents and OSPs, I understand that actual DMCA abuse is relatively rare and most DMCA notices that are false are questionable due to technicalities, not legal issues.

For the most part, only a handful of individuals and organizations file knowingly questionable DMCA notices and those that do so usually do so repeatedly and aggressively until stopped.

Though I agree that abuses do take place, I disagree that they are as common as implied nor do I believe it is fair to punish the law for a handful of people who wish to abuse it.

Still, there is little doubt that Shepherd’s look at the law is well-deserved and very accurate.

Conclusions

All in all, the article itself is a must-read for anyone who is filing DMCA notices or considering it. It is important to take seriously what Shepherd has to say about the law and listen to her commentary. They are important words of caution.

I encourage everyone to download the PDF from her site and read through it as it goes into much more detail than I can here and raises other issues that aren’t covered in this article.

So, if you get some time, download the PDF of the preview and give it a read through. You’ll be glad you did.

Credits: Danger Symbol image From Danzo08 at SXC. Licensed under SXC’s standard restrictions.

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