When NOT to File a DMCA Notice

Ben Sheffner, on his excellent Copyrights and Campaigns blog, outlines the story of an Australian photographer Ted Szukalski, who took a picture of a picture of a homeless man shining a woman’s shoes. Much to his understandable chagrin, the photo was later altered, though by whom seems to be unclear, to put Barack Obama’s face on the shoe shiner and Sarah Palin’s face on the woman.

This led the photographer, to file a takedown notice with a blogger, Patrick Frey of Patterico.com, to have the image removed. This despite the fact that Frey was neither the original one to alter the image and was, in fact, using it to discuss the stir the image had caused.

Frey has since refused to remove the post and has actually posted the image again in the discussion about his refusal to remove it.

This case is a classic example of a DMCA notice gone wrong. Such notices are designed to compel hosts and search engines to disable access to infringing material to keep their safe harbor, however that was not the case with this notice.

As Sheffner points out, the problems with the notice are legion (wrong party, strong fair use case, lack of protection under safe harbor, etc.) but it makes it clear that there are many times where the DMCA is the wrong tool to use.

So, with that in mind, here are just some of the more common situations where you will probably want to think twice before filing a takedown notice.

1. Not a Copyright Dispute

The DMCA and its safe harbor provisions are for copyright only (Hint: It’s what the C in DMCA stands for). It can not be used for dealing with libel, privacy or other issues. Just because someone says things that are untrue or are invasive, doesn’t mean the DMCA can be used to silence them.

2. Not an Infringement

Don’t send takedown notices on cases that have strong fair use arguments or may be allowable under your license. Also, make sure that the elements that are being copied are copyrightable at all.

You don’t want to send a notice only to find out that the other party wasn’t infringing at all. Be knowledgeable of the law and know where the boundaries lie.

3. Copyright Isn’t Why You Are Upset

Sometimes a use of your work might be technically an infringement, such a fan fiction, but you aren’t mad about the actual infringement, but the specific nature of the use. Whether its a mean-spirited use, one that is getting a lot of attention or something else altogether, you need to have an even hand with your copyright policy.

Silencing only your critics, for example, not only risks a firestorm but will upset those you wish to allow to use your work. It is important to make your license terms clear, for everyone’s benefit, and accept the good with the bad.

4. You Risk the Streisand Effect

The Streisand Effect is a term for when someone tries to censor a piece of information, through a variety of means, and only ends up drawing more attention to it. This is very commonly seen with dubious DMCA notices.

A legitimate and fair DMCA notice rarely results in such an effect but be wary of communities and sites that flaunt the law deliberately as they may latch hold to such a notice, no matter how valid it is.

5. Not a Host/Search Engine

It’s important to note that the DMCA’s safe harbor provisions only protect hosts and search engines from liability for content posted at the direction of users. Users themselves are simply liable, as Sheffner points out. You should not send a DMCA notice to a user, that is territory for a cease and desist letter.

6. Not a U.S. Company

The DMCA is an American law. It only applies to servers within the country. Though other nations, including the EU, Australia and New Zealand have similar laws, they often have different requirements and need slightly different notices. With other countries, there is no such obligation at all.

7. You’re Not the Copyright Holder

Only the copyright holder or an authorized agent can file a DMCA notice. If you aren’t either, you can alert a host to a potential infringement, but you can’t file a formal notice. You can, if you wish, also alert the copyright holder to the abuse and help them take action.

8. Better Solutions Are Available and Untried

Finally, if you have other alternatives to work out the solution more amicably, you should try those first. Yes, with spam blogs and other sites that misuse content and work to separate themselves from their owner, a DMCA may be your best first shot, however, in most human cases, at least trying to work it out with the other person.

Not only can you usually find a better solution, but you often times make new friends and contacts that way as well.

In short, the DMCA should be a last resort.

Reasons to Be Careful

There are many good reasons to be very careful when filing DMCA notices, but here are some of the more important ones to consider.

  1. Legal Issues: ยง512(f) provides very severe penalties for those who knowingly file false DMCA notices. See also Open Policy Group v. Diebold.
  2. Weakening the Law: Too many invalid DMCA notices will not only turn public opinion against the safe harbor system we have (even more than it already is in some circles), but also could force the law to be weakened or altered, limiting its usefulness.
  3. Reputation Damage: Finally, even if there are no legal consequences to your action, filing bad DMCA notices will inevitably hurt your reputation, is has many companies and organizations that have done it repeatedly.

Bottom Line

To be clear, I’m not saying to never use the DMCA. It is an important and valuable tool. However, it is critical to pause and make sure it is the right tool for the job.

In the end, if you have any doubt that the notice you’re filing is proper, don’t file it. It’s that simple. Mistakes do happen from time to time, but if you are sure and careful, they can be kept to an absolute minimum.

If you do decide you want to file a notice and that the notice is proper, you may want to consider using the WhoIsHostingThis DMCA Takedown Service, which is a partner with Plagiarism Today, to get help and take the headache out of the filing.

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