The Digital Millennium Copyright Act contains many powerful copyright enforcement tools and is a beloved whipping boy among many on the internet. But, as someone famous once said, “with great power comes great responsibility.” Enter 17 U.S.C. § 512(f):
Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer…who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Basically, a copyright owner may be sued for using the DMCA as an incendiary bomb rather than the laser-guided missile that it was meant to be. You’ll notice that this works both ways too; an alleged infringer may be sued for damages related to abuse of the so-called put-back system. Since it’s not that hard to identify the copyrighted work or learn the true identity of the alleged infringer, thanks to § 512(h), the real trap for the unwary lies in copyright owners’ overuse of takedown notices.
While the specifics of 512(f)’s knowledge requirement are still being worked out in courts around the country, the law clearly prohibits sending DMCA takedown notices in bad faith–i.e. to harass your competitor. The 9th Circuit has also said that copyright owners must, in their heart of hearts, believe that an alleged infringer isn’t making fair use of the copyrighted material. So, while you’re allowed to be wrong in your assessment of the situation, you must sincerely believe that your work is being infringed when you send a takedown notice.
Bottom line: do your due diligence and be able to document and thoroughly explain why somebody is infringing your copyright before sending a DMCA takedown notice.