DMCA Misconceptions

I’ve seen some articles published recently, and I thought it might be a good idea to clear up two misconceptions about the Digital Millennium Copyright Act (DMCA), in particular, the provisions which limit liability for online service providers who take down infringing content upon notice.

Misconception 1: A takedown notice resolves disputes. An example of this is a recent dispute between the creators of the Open Source project, Monit, and a similar closed-source project, Inspeqtor. As Github apparently publishes DMCA notices it receives, the correspondence between these two parties is available for us to view. So, let’s go through what happened.

Step 1: Tildeslash (the company that apparently releases Monit) notices Inspeqtor and gets upset. They send a DMCA takedown to Github (the host for Inspeqtor). From reading the notice, it would appear that, at this time, it was likely Tildeslash’s opinion that Inspeqtor was an unlawful derivative work derived fro Monit.

Step 2: Github takes down Inspeqtor. Without the DMCA’s liability provisions (and without Github’s compliance with those provisions), Github could be liable for copyright infringement. So, to avoid potential liability, Github takes down Inspeqtor.

Step 3: Inspeqtor sends a counter-notice. This notice sticks to the bare minimum required. Many lawyers do not provide unnecessary commentary in these types of letters, as statements have a way of being turned around and used against you. Compare to Tildeslash’s notice, which was very elegant but included language not required for a DMCA notice.

Step 4: Github puts Inspeqtor back up. At this point, Github likely remains complaint and likely avoids liability for copyright infringement for hosting Inspeqtor.

Step 5: Tildeslash retracts its DMCA notice. At this point, their letter has nothing to do with DMCA, and merely makes the record.

Alternate Ending – Step 5 Reimagined: At this point, should Tildeslash disagree with Inspeqtor, their remedy would then be to bring a lawsuit seeking a temporary restraining order or an injunction.

So what’s the moral of this story? The DMCA doesn’t resolve actual disputes, it only provides a way for an online service provider to avoid liability. For some cases of knowing infringement, the infringer will simply not send a counter notice and stop infringing. Yes, DMCA resolves these disputes. However, where two parties disagree about copyright infringement, DMCA doesn’t provide any additional remedies, and a court is probably the better place to have this fight.

Misconception 1: A takedown notice entitles the sender to anything. An example of this is embodied in a recent article about Etsy being a haven for copyright infringement, where the article’s author appears angered that Etsy will not reveal the identity of the alleged infringing party.

Again, DMCA is not a lawsuit. DMCA notices are only about the infringing content and the liability of the host, not about who is wrong. If the service provider (host) complies with DMCA, the service provider avoids liability. Pretty much everything else is for the courts.

I am a former software engineer turned lawyer, practicing patent, trademark, copyright, and technology law in New Orleans, Louisiana with Carver Darden. You can read more about me, or find out how to contact me. You can also follow me (@NolaPatent) on Twitter or Linked In. All content on this website is subject to disclaimer.

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