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As the study shows, recent attempts by content providers and online service providers to lower their costs by 'automating' the DMCA takedown and demand letter process have geometrically increased the number of inaccurate claims and have randomly targeted innocent users and unfairly forced them to settle or mount a legal defense. Large content providers are using the legal equivalent of a sawed-off shotgun.

I'm constantly surprised that few blog commentators are aware that the DCMA has a section against fraudulent, overreaching, and incorrectly targeted DMCA takedown demands. Section 512(f) of the DMCA exists to award penalties against rights holders who abuse the DMCA process. There's no coverage of this.

It would be interesting to see Section 512(f) used in a lawsuit seeking declaratory judgment against large content providers using automated DMCA procedures, claiming that the use of automated DMCA demands without human verification leads to an unacceptable level of inaccuracy and violates the law. A handful of DMCA cases under Section 512(f) have held against the content providers and awarded penalties to the targets.

I recently wrote an article on incorrectly using DMCA takedown demands and Section 512(f) for the Michigan State Bar. The article can be downloaded from my blog at http://arborlaw.biz/blog/2008/02/05/dmca-takedowns-and-cd/ .

It's a good idea for all those criticizing the current state of DMCA enforcement to go back and read Section 512(f) of the DMCA itself (http://www.copyright.gov/title17/92chap5.html#512). A huge number of DMCA takedown notices are defective in following the required notice procedure, and a significant percentage seek to enforce laws unrelated to copyright, or are used to attack or stifle competitors or act out a vendetta. All of these would entitle the wrongfully targeted Internet user defending against a DMCA claim to the remedies in Section 512(f).


Carol Shepherd, Attorney
Arborlaw PLC



Excellent! Thanks for such a useful and detailed comment!!



Really like the blog, appreciate the share!

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