One of the most effective ways an Internet attorney can remove online content is to file a Digital Millennium Copyright Act (DMCA) takedown notice with a webmaster, webhost, and/or a website’s Internet Service Provider (“ISP”).
What is the DMCA?
The procedure can appear easy enough, even to people who are not attorneys. In fact, any experienced intellectual property or Internet attorney can probably send one of these nice little letters in their sleep with no problem. All that is required under the Section 512 of the DMCA is that a letter is sent with the following six elements:
- The name and physical or electronic signature of the content owner (or an authorized agent) whose rights are allegedly being infringed;
- Identification of the copyrighted work claimed to being infringed;
- Identification of the infringing website (which can easily be obtained via WHOIS domain lookup service) and a copy of the URL or link where the infringing content is located;
- Contact information of the person to contact regarding the DMCA takedown letter that is being sent, such as address, telephone number, and e-mail address;
- A statement that the person sending the takedown notice has a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly being infringed.
Although the process appears easy enough, people without legal experience should NOT attempt a DMCA takedown without the assistance of an experienced attorney.
Not only can these six steps be more technical and difficult to properly comply with than they appear, if done incorrectly, even innocent mistakes can actually lead to liability and damages. The case of Amy Tuteur v. Gina Crosley, 1:13-CV-10159-RGS, is a good example of what can potentially go wrong.
Amy Tuteur v Gina Grosley
On January 25, 2013, Amy Tuteur (“Tuteur”), an obstetrician-gynecologist from Massachusetts, filed a lawsuit against Gina Crosley-Corcoran (“Crosley”) based on a dispute arising out of blog articles written by the women and a DMCA takedown notice sent by Crosley to Tuteur’s blog host.
According to the complaint, Tuteur and Crosley were involved in a heated debate regarding the dangers and merits of giving birth to a child at home (as opposed to at a hospital). Eventually the debate escalated to the point where Crosley allegedly published a blog post entitled “This One’s For You, ‘Dr. Amy’,” which included a self-shot photograph of Crosley giving the middle finger. Tuteur responded by publishing a rebuttal blog post that included the photo of Crosley on her own website.
Since Tuteur had re-published Crosley’s photograph, which Crosley owned the copyright to, without Crosley’s consent, Crosley then allegedly responded by sending a DMCA takedown notice to Tuteur’s website host, which caused Tutuer’s webhost to terminate her contract and disconnect access to her website.
Tuteur responded to this shutdown by filing her lawsuit against Crosley claiming that Crosley had not fulfilled the requirements of the DMCA when she filed her takedown notice because the notice had been sent in bad faith. Essentially, Tuteur claimed that the takedown was defective because it was obvious that the republishing of the photo was non-infringing and considered fair use under Copyright law; i.e., the use of the photograph was completely legal and the takedown notice was not. Tuteur subsequently filed defensive motions arguing that her takedown notices were not filed in bad faith and she had innocently relied on an inaccurate interpretation of the law on advice of counsel.
The dispute between Tuteur and Crosley is still ongoing. On September 10, 2013, the District Court issued a ruling allowing the case to proceed on its merits. The Court ruled that Tuteur’s complaint could stand because it properly alleged that Crosley’s DMCA takedown notices were done in bad faith with actual knowledge that her Takedown Notice contained a material misrepresentation of fact. The Court rejected the chance to adopt an objective test that would require those sending DMCA takedown notices to consider possible copyright defenses like fair use and disregard a person’s subjective understanding and intent.
The moral of the story is that DMCA takedown notices are not as easy or as straight forward as they seem. If done incorrectly, the person responsible for sending the notice can end up being sued and subject to civil damages.
Although I believe that Crosley will ultimately prevail in her defense given the facts alleged, the fact that she is subject to an out of state lawsuit in the first place is a loss in of itself. If Crosley had received competent legal advice at the outset, she may not have found herself being sued at all. At least she can use the fact that she met with attorneys as a good defense in this case, which I believe will wind up prevailing.
If you or your company have questions about sending out DMCA takedown notices or believe that you have had content improperly removed because of a DMCA takedown notice was sent improperly, the Internet attorneys at Meyers Roman Friedberg & Lewis, LPA can assist you.To schedule a free, no-obligation initial consultation call (216) 373-7706 or schedule a meeting online.