As it became clear that this World Wide Web thing was more than just a passing craze, in 1998, Congress passed the Digital Millennium Copyright Act (the “DMCA”). The DMCA provides a means for copyright holders to request websites (and their online service providers) to expeditiously “take down” infringing content and thereby avoid further legal liability. Recognizing the potential for abuse by sending false or misleading takedown notices, Congress also provided that “any person who knowingly materially misrepresents that material infringes on a copyright shall be liable for damages incurred by the alleged infringer.”
Suppose your run a website that hosts content you believe constitutes a parody or “fair use” of another’s material (both of which are exceptions to copyright protection). What should you do if you receive a takedown notice you believe is not justified?
First, gird yourself for the possibility of a lawsuit, but Congress did provide a counter-notice procedure to guard a website’s ability to maintain the allegedly infringing content. And rest assured that your online service provider will promptly take down the allegedly infringing content in order to shield itself from liability in the event you have indeed infringed another’s copyright. The offending content will likely remain down through the entire takedown notice and counter-notice period, which could run several weeks.
You must then file a response under penalty of perjury that you have “a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled (there’s no requirement to specify the nature of your good faith belief, such as parody or fair use), provide your name, address, phone number and a consent to local Federal Court jurisdiction and agreement to accept service of process. After you serve your counter-notice upon your OSP, the OSP advises the issuer of the takedown notice. Your OSP may replace the disputed material after ten business days if the issuing party has not filed a lawsuit, and the OSP must replace the material within fourteen business days if no suit has been filed.
In a recent case, CrossFit, the popular fitness-training program, sued Jenni Alvies, a stay-at-home mother who ran a blog called “CrossFitMamas,” alleging trademark infringement. CrossFit sent takedown notices to Alvies and to Facebook, pursuant to the DMCA. However, the DMCA doesn’t govern trademark infringement; the Act only addresses copyright infringement. Alvies filed a counterclaim for declaratory relief, arguing that CrossFit made material misrepresentations in the DMCA takedown notice it sent to Facebook, specifically, that CrossFit’s claims are based on trademark rights, but the DMCA governs only copyrighted material. CrossFit argued that because Facebook permits both trademark and copyright takedown notices, Alvies’ claim should be dismissed. The court held for Alvies on this issue, and found that an ambiguous takedown notice can be wrongful takedown notice.
It’s important to remember that there are remedies against rights holders that attempt to bully you into taking down content that is not copyright protected. Consider discussing with an attorney if you ever receive a takedown notice that you dispute.