Journal Article

Automated takedown notices and their potential to generate liability under section 512(f) of the Digital Millennium Copyright Act

J. Royce Fichtner and Troy J. Strader

in Journal of Intellectual Property Law & Practice

Volume 6, issue 1, pages 51-59
Published in print January 2011 | ISSN: 1747-1532
Published online November 2010 | e-ISSN: 1747-1540 | DOI: http://dx.doi.org/10.1093/jiplp/jpq154
Automated takedown notices and their potential to generate liability under section 512(f) of the Digital Millennium Copyright Act

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Legal Context

In 1998, the U.S. Congress enacted the Digital Millennium Copyright Act (DMCA) and established an extra-judicial process whereby copyright owners could effectively remove allegedly infringing material from the Internet by simply sending a statutorily prescribed “takedown notice” to the Internet service provider hosting the use. To prevent abuse of this process, Congress simultaneously established a cause of action through which the alleged infringer could collect damages if the copyright owner made a material misrepresentation in the takedown notice. In recent years, many copyright owners have begun to utilize powerful screening software to expedite this takedown process. This software searches the Internet for potentially infringing uses and then, once a use has been identified, sends an automated takedown notice to the service provider hosting the use. Recently, some commentators have suggested that copyright owners who use this type of software are misusing the DMCA's takedown notice provisions and should be liable under the DMCA cause of action for misrepresentation.

Key Points

We conclude that copyright owners will not be held liable for merely utilizing this type of software program to send takedown notices; however, we also conclude that copyright owners issuing automated takedown notices are more likely to be found liable for misrepresentation than copyright owners who have an individual review the allegedly infringing material before sending the notice.

Practical Significance

This article will be of particular relevance to attorneys who advise copyright owners that protect their copyrighted material through an automated takedown notice system.

Journal Article.  6840 words. 

Subjects: Arbitration ; Intellectual Property Law

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