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We've had a few discussions concerning the available damages awards for bogus DMCA takedown notices. Unfortunately, if you've had your content taken down incorrectly, the damages you can get from those who sent the takedown, are greatly limited. This is a big problem, because bogus takedowns are regularly sent for a variety of reasons, including attempts to silence speech and because a copyright holder is taking a machine gun approach to dealing with infringing content. The case that's received the most attention on this has been the Lenz vs. Universal Music case, involving Universal Music's failure to take fair use into account in taking down a short video of a baby dancing to music. However, Michael Scott points us to Marty Schwimmer's blog post detailing a content creator's attempt to claim a bogus DMCA takedown was both copyright infringement itself as well as libel, two rather interesting legal claims... both of which got dismissed pretty quickly. The case involved Actors' Equity Association (AEA) which apparently has some sort of setup where it has the right to alert YouTube to any videos that violate the copyright of its members. How it knows whether those videos are authorized or not is not at all clear -- and, in this case, AEA screwed up. It issued a takedown on a video that was posted by the copyright holder who was pretty pissed off. AEA apologized, but the guy sued, and beyond just using the DMCA's 512(f) clause on dealing with bogus takedowns, tried some other claims as well -- including the copyright infringement and libel claims mentioned above. The claim of copyright infringement claim is quite creative. It was based on the fact that copyright gives you the exclusive right to distribute and display your works, and the bogus takedown interfered with those exclusive rights. Of course, there's a pretty big problem with this theory, which the court was quick to point out: just because copyright law gives you that exclusive right, it doesn't mean that everyone has to automatically let you distribute or display your works, which is effectively what the guy was claiming. If this theory won out, then no one could stop someone else from displaying their works or it would be considered copyright infringement. So it's good that the court rejected this. Related to this, the court also rejected the 512(f) claim, by noting that only applies to situations where the takedown issuer had actual knowledge of the fact that the takedown was bogus, which greatly limits its applicability. The libel claim stems from the idea that he was falsely labeled for infringing copyrights when he had not done so -- and the court ties that to the same 512(f) claim, pointing out that this would only apply if there were actual knowledge that the takedown notice was bogus. The ruling here certainly makes sense, but still highlights a massive problem with the DMCA -- which is that those issuing takedowns have absolutely no incentive to determine if those takedown notices are valid. This would seem to seriously violate what's supposed to be a fine balance between copyright law and the First Amendment, in that it allows individuals or companies to stifle the speech of others, using the law, even if they're doing so incorrectly. This seems like a massive problem in how the DMCA is constructed.
