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The Power and Perils of DMCA Takedown Notices: Protecting Copyrights or Silencing Creators?

Copyright takedown notices under the Digital Millennium Copyright Act (DMCA) and 17 U.S.C. § 512 can be powerful tools for rightsholders to enforce their copyrighted material against infringing third parties. If you have ever had the misfortune of dealing with copyright infringement, you may know how quickly the infringing content is removed after the notice is sent. This is due in part to the provisions of the DMCA, which provides a safe harbor for online service providers who act expeditiously to remove infringing content. A notice-and-takedown system allows rightsholders to send a notification to the online service provider regarding infringing material that appears on the service provider’s system.

The notice and counter-notice steps created by the U.S. Copyright Office are as follows:

  1. Notice — Rightsholder sends notice to online service provider regarding infringing material that appears on the online service provider’s system.
  2. Remove Access to Material — Online service provider must act expeditiously to remove or disable access to the infringing material.
  3. Notify User — Online service provider must then promptly notify the user that originally uploaded the material that it has been removed.
  4. Counter-notice — User may submit a counter-notice requesting the reinstatement of the material, if the user believes the removal was due to a mistake or misidentification.
  5. Restore Access or Initiate Court Action — Online service provider must restore access to the material after no less than 10 and no more than 14 business days, unless the original notice sender informs the service provider that it has filed a court action against the user.

For more information on the DMCA process, please see our previous blog post here.

This notice-and-takedown system is designed to allow either the copyright holder or an authorized representative to prepare and file the takedown notice. However, because service providers tend to remove content first and ask questions later, malicious actors having no ownership right in the copyrighted material can file false DMCA requests, weaponizing the notice-and-takedown system.

In the past, content creators have issued DMCA strikes on videos that paint them in a negative light to silence criticism, despite the video using clips that fall within fair use. There have also been situations where a malicious actor pretends to represent the copyright holder. Nintendo is known for protecting their IP and is not shy to issue takedowns on videos that misuse it. However, over the last year, DMCA requests were sent from a non-Nintendo domain and signed by someone who did not exist. The victim had to reach out to Nintendo only to learn that the actions taken were not from Nintendo.

These false takedown requests can negatively impact a copyright holder’s reputation. The game company Bungie Inc. sued an individual who created email accounts posing as a Bungie employee and made 96 takedown requests to YouTube to remove content related to the company’s Destiny 2 video game, including videos on Bungie’s own channel. Bungie claimed that the individual “harmed its reputation and caused economic damage by confusing and angering the Destiny 2 community about whether they could continue to create derivative works to post on YouTube.”

Such situations are not limited to the video content space. Just recently, a major disaster occurred in the 3D printing community due to the spontaneous enforcement of a license to one of the most popular printing files, the 3DBenchy. The 3DBenchy is a 3D model of a boat designed to benchmark and evaluate 3D printer calibration. When created, it was uploaded to the popular file-sharing site, Printables.com, under a Creative Commons No Derivatives license. While individuals are free to modify the file for personal use, the license restricts distributing the modified files.

For years, the license was not enforced, and people began to modify and create their own derivates of the iconic boat. Recently, a new owner acquired the rights to the original 3DBenchy file, and the license began to be enforced on Printables.com. The new owners announced they did not personally file the takedown. Instead, a third party filed a takedown, alerting Printables of the licensing issues and causing them to begin the purge of derivative 3DBenchy files. The current owners are now working with Printables to resolve the issue.

The main takeaway is to keep on top of enforcing your IP. Always be aware that in a system that removes content first, bad actors can make fraudulent claims painting you in a negative light. The quicker you can make the public aware that the claim was fraudulent, the less impact the fraudulent claim may have on your reputation.

Category: Copyrights, Intellectual Property