So you’re happily shopping on Amazon.com (not during work hours, of course), and all of a sudden you come across an e-book that looks awfully familiar. You take a closer look…hmmm. “Wait a minute,” you mutter, “that can’t be right. That’s the book that I wrote! It’s only supposed to be available on my site! And my price is much higher than Amazon’s!” You check your site, and – sure enough – traffic is down, and you’re losing sales.
You call your trusty IP lawyer, who sends a takedown letter to Amazon.com. Amazon.com removes the offending e-book, no counter-notice is issued, and you soon see an uptick in e-book sales. That’s the way it’s supposed to work, right? Pretty easy solution – no lawsuit, no long process?
I won’t address some of the intricacies of how the process can play out, but yes, that’s often how it does work under Section 512 of the Digital Millenium Copyright Act (DMCA 512), and it has worked fairly well for the last fifteen or so years. Google gets a staggering number of takedown requests – so far over 34 million requests in the past month alone.
However, the simplicity of the process has resulted in abuse, as well. DMCA 512 is not an all-purpose tool for shutting down whatever offends you online. And if you use it improperly, you could face a real publicity nightmare. Many sites now contain some version of a hall of shame – places where tales of DMCA overreach can live forever.
Don’t assume that the target of your takedown notice cannot or will not fight back. Organizations such as the Electronic Frontier Foundation (EFF), Digital Media Law Project, Chilling Effects Clearinghouse, and others stand ready to help targets push back on overreach. Many popular blogging platforms, such as WordPress.com, have also taken steps to protect their users against abuse.
When Diebold tried to use the DMCA to force students to take down Diebold’s leaked internal emails about voting machine flaws, the EFF stepped in to help – and won. In a turnabout, Diebold had to pay damages for filing frivolous takedown notices. That’s right – the DMCA allows targets to turn the tables if you send a false notice.
Online criticism is a fact of online life. If you’re the target, the DMCA may not be your best option for dealing with it. You may end up amplifying the criticism. When an organization called Straight Pride U.K. tried to squelch an apparently unfavorable email interview posted by a student journalist Oliver Hotham by using the DMCA to force takedown of his article, Automattic (which runs WordPress.com) filed a lawsuit in defense of the journalist, and won. That DMCA notice set off a wave of articles and a lawsuit – which had the unintended effect of broadcasting the organization’s views.
Bottom line: think through the possible ramifications before firing off a DMCA notice. The DMCA is a powerful tool when used properly, but if you misuse it, your efforts might boomerang on you with unintended consequences.