Dozier Internet Law is often involved in copyright infringement disputes. Sometimes we are representing an owner of a copyright, sometimes we find ourselves defending a client's use against copyright infringement claims, other times we are advising webhost clients how to deal with Digital Millennium Copyright Act "takedown notices". In order to use a DMCA take-down notice, all you do is fill out a form, serve it on a webhost or other service provider with a claim of infringement, and the material has to be pulled off the web by the recipient. Just as significantly, if you are the infringer, all you have to do is file a "counter-affidavit" denying the infringement and the material can go back up. That's an oversimplification, but you get the idea.
Unfortunately, we are seeing more and more outright abuse of this very powerful tool at Dozier Internet Law IN BOTH DIRECTIONS. Everyone seems to be treating it like a simple and easy and free way of dealing with copyright infringement. But it isn't. Serving a takedown notice requires certification that it is proper. Fair use is a much debated and ambiguous issue today, yet it is a valid defense to copyright infringement and needs to be considered before firing off a DMCA takedown notice. Laymen struggle with this concept, which is not a surprise given the fact that lawyers and judges are also struggling with applying the doctrine to the online world. And no amount of debate about the nuances of copyright law can ignore the much more serious problem of thieves all over the world simply filing blatantly false counter-affidavits to get the copyright infringing material back up. It's a two way street. And as these public interest and consumer rights and free speech commentators call for changes to this law, a little balanced perspective might be healthy.
If you serve a DMCA takedown notice without legal support, the law also creates liability for you. You could be paying the other side its attorney fees, and this can be a lot of money. I cannot recommend you draft and serve a DMCA takedown notice yourself without the assistance of legal counsel. But I cannot recommend you not do so. It's a wonderfully effective tool, easy to access and use, and free. What could be better than that from a business perspective?
We'll wait and see what changes are proposed to the law because of the shift in power in Washington. Public interest groups are already calling for amendments to make it more difficult for the average person or business to use this tool. At Dozier Internet Law we'd support some changes that make sense in a balanced way. Today over half of all takedown notices are reportedly improper. And that seems to be the crux of the complaints of the consumer rights and public interest groups. But they ignore an even more pervasive and flagrantly illegal abuse of the counter-affidavit tool by scofflaws all over the world. If amendments attacking this tool are to be considered, let's make sure we put on the table a counter-balance.
Let's amend the Copyright Act so attorney fees and statutory damages can be recovered if an improper counter-affidavit is filed by an infringer. Let's limit the use of the counter-affidavit to those subject to the personal jurisdiction of the US courts. And let's get rid of the requirement for a registered copyright prior to bringing legal action. In other words, all of these false counter-affidavits that are filed by infringers to get the copyright protected work back up on a site should be addressed as well. Let's create some very clear consequences to the infringers.
Oops. I bet these public interest groups didn't really consider the can of worms being opened if they convince Congress to consider amendments to the process. Some people just can't see both sides of an issue. The free speech expansionists are from what I can see some of the worst offenders. Be careful what you ask for. Amendments to the DMCA take-down process? You may just get some, and walk some of your most ardent supporters and constituents right into a buzzsaw.
I would tell those calling for changes to the DMCA to be thankful for what you have today, which is a nearly foolproof method for the scofflaws of the world to circumvent US copyright laws. Sure, sometimes it shows its teeth and has a loud bark. But as written today it is a little chihuahua. It's the pit bull version you need to worry about. Be careful what you ask for. You might just get amendments to the DMCA...just not your amendments.