The Digital Millennium Copyright Act provides copyright safe harbor for registered content providers. The law allows people who allege digital copyright violations to send notice to the infringing party. But beware of false DMCA consequences. If you file a fake notice, you could find yourself in major legal trouble.
How A Typical DMCA Notice Goes Down
- Joe, a 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.
DMCA compliant providers are likely to respond quickly to alleged infringement and block access to it on their websites. And as is always the case in life, some people abuse the system. But know this: You will suffer consequences for filing phony DMCA takedown notices.
False DMCA Consequences Case Study: Online Policy Group v. Diebold Incorporated
A perfect example of false DMCA consequences is the case of Online Policy Group v. Diebold Incorporated.
Diebold makes voting machines used in US elections. Critical of Diebold’s product, Online Policy Group released a leaked Diebold e-mail correspondence 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 with the Group to pay $125,000 for their monetary losses and legal fees.
False DMCA Consequences Case Study: 10 Zen v. Crook
Another fake DMCA case was that of Michael Crook, a controversial public speaker and non-regular Fox News talking head. Apparently, after one of his TV appearances, 10 Zen Monkeys posted a criticism of him online, which included a thumbnail of his picture. So, he 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 it was Fox that made the show, Crook could not even claim to be the owner of the broadcast or related intellectual property. The case was quickly settled and, being impecunious, Crook agreed to two 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 swear their requests are valid “under penalty of perjury,” filing a false one can reap criminal repercussions. Like, you may find yourself hanging out with Crazy Eyes if you engage in DMCA deception.
Alleging copyright infringement when it does not exist is not a wise move — especially since there are false DMCA consequences — expensive, legal consequences.