The Digital Millennium Copyright Act confers copyright safe harbor. It law allows people who allege digital copyright violations to notify infringing parties. But beware: Fake DMCA takedown notices aren’t taken lightly.
A Typical DMCA Takedown Request
- Joe, a (fictional) copyright holder, discovers another party is using his protected works.
- Joe sends a letter to either the website or hosting company on which the infringed content sits.
- When the infringing party receives the request, the content is either taken down or not.
- If the content stays up, the copyright holder can proceed down various legal avenues.
False DMCA Consequences Case Study: Online Policy Group v. Diebold Incorporated
A perfect example of a false DMCA takedown case is Online Policy Group v. Diebold Incorporated.
Diebold makes U.S. voting machines. Critical of Diebold’s product, Online Policy Group leaked a Diebold e-mail that made the company look terrible. In response, Diebold sent DMCA takedown requests.
Online Policy Group sued Diebold over the takedown requests, arguing a First Amendment right to publish the e-mails. A California court agreed with the Group and granted a request for summary judgment, after which Diebold settled for $125,000.
False DMCA Consequences Case Study: 10 Zen v. Crook
Michael Crook, a controversial public speaker, was at the center of a DMCA takedown lawsuit. Apparently, after a TV appearance on Fox, 10 Zen Monkeys posted a criticism of him online, which included a thumbnail picture. So, Crook sued for copyright infringement.
The judge put an end to the legal action, explaining that not only was a thumbnail image fair use, but since Fox made the show, Crook could not even claim ownership of intellectual property associated with the segment. The parties quickly settled and Crook agreed to a pair of unique conditions:
- Take courses on copyright law, so as to never again file a false DMCA takedown request; and
- Publish a public apology;
[Aside: The saga of Crook v. the Internet definitely earned a place on the Top 10 Entertaining Internet Law Incidents. To read about the whole humorous debacle, go here.]
The Ultimate False DMCA Consequence: PRISON!
Willing to risk the civil damages described above? Think the ROI is worth it? Think again. Since the DMCA has criminal provisions, and takedown notice senders must swear their requests are valid “under penalty of perjury,” filing a false one can reap criminal repercussions.
Bottom line: Alleging copyright infringement when it does not exist is not a wise move.