The
Digital Millennium Copyright Act requires that an entity complaining of copyright infringement make certain statements "under penalty of perjury." Copyright owners disagree about whether this requirement applies to the statement that they are simply authorized by the copyright owner to make the statement, or whether the claim of infringement itself is made under penalty of perjury. Courts have not spoken directly on this matter, however the DMCA insists that they may not materially misrepresent their claims. Targets of DMCA complaints not meeting these standards may file suit pursuant to
section 512(f) alleging that the complaining party materially misrepresented that the material was infringing.
Both the notice and take down provisions, and section 512(f) are rarely litigated. Recently, the EFF filed suit against a copyright owner under section 512(f) claiming that not only had the owner materially misrepresented whether the material was infringing, but also failed to act with reasonable care and undertake due diligence when making the infringement claim. While courts haven't expressly held that this is required under the DMCA, it seems reasonable given general statutory interpretation, and case law in general. Any effort to make copyright owners more exercise more diligence in their DMCA efforts is a step in the right direction however. Most hosts would sigh a great sigh of relief if representatives of copyright owners were required to do more than merely spider the web looking for their client's names, and then sending DMCA spam to every catch-all domain name a host may have.
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(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
(iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
(vi) 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 infringed.
Furthermore, to the extent that there are any misrepresentations in such statements the damaged party, whether it is the owner, the alleged infringer or even an effected web hosting company, is entitled to recover their damages including "attorneys fees and costs" which should be a significant enough deterrent in itself toward abusive practices.
Challenges to take down notices should be more frequent when they are improper or "abusive". However, in general the takedown provisions of the DMCA provide a valuable tool for businesses attempting to protect their Intellectual property.
J. Cohen
Director, InternetLitigators
I think that our common ground is that greater consideration should be given to serving DMCA notices. Whether the impetus will be more legislation or simply better civil enforcement of the existing legislation remains to be seen.
J. Cohen
Director, InternetLitigators