What are the consequences of a fraudulent DMCA takedown notice? YOUTUBE v. BRADY

A copyright is a set of exclusive rights granted to the creator of a new work of expression. A copyright grants its own the exclusive right to reproduce, distribute, perform, display, transmit and make derivative works based on the original. If someone other than the copyright owner attempts to exercise one of these exclusive rights that can be considered copyright infringement.

Copyright law in the United States existed long before computers and the internet were everyday household items. The Copyright Act of 1976, codified in Title 17 of the United States Code, was not prepared to deal with the new legal issues raised by the internet connected personal computer. In 1998, the United States Congress enacted the Digital Millennium Copyright Act (DMCA), 17 U.S.C. § 512, which was intended to update Copyright law in the United States and make it more compatible with the realities of the internet.

One of the new tools created by the DMCA is the takedown notice. When a copyright holder discovers that their copyrighted material is being distributed on the internet, the copyright holder can file a takedown notice with the online service provider that is hosting the copyrighted material. The takedown notice process gives copyright holders a much faster method to combat copyright infringement. Online service providers are granted immunity from liability for copyright infringement committed by users when the online service provider promptly removes infringing content. Users who believe that a takedown notice was filed in error can respond to a takedown notice to get their content restored by the online service provider. The copyright owner can then file suit against the user for copyright infringement.

The exact mechanics of the takedown notice process can vary between online service providers. The DMCA does not dictate the exact takedown notice process that an online service provider must use. To qualify for immunity from liability for copyright infringement the online service must have a consistent method to receive takedown notices, respond to the notices and prevent repeat infringement by the same users. Most online service providers have adopted a three strikes and you are out policy, meaning that if a user is sent three takedown notices the user’s account is terminated.

When the DMCA was codified, the potential for abuse of the takedown notice system was foreseen. The DMCA provides those whose have been harmed by fraudulent takedown notices to bring an action for damages against the sender of the fraudulent takedown notices.

YOUTUBE, L.L.C. v. CHRISTOPHER BRADY, 8:19-cv-00353 (D.NE 2019) is a case that involves an online service provider suing the sender of fraudulent takedown notices. The plaintiff in this case is YouTube, and online service provider that distributes videos uploaded by users. The plaintiff has several billion monthly users who view content uploaded to the plaintiff’s servers or upload their own content. The plaintiff receives thousands of takedown notices each week. Millions of dollars are spent by the plaintiff each year to process takedown notices and to promptly remove allegedly infringing materials from the platform.

The defendant in this case is an individual who has sent dozens of takedown notices to the plaintiff, falsely claiming that material posted by users to the plaintiff’s service infringes his supposed copyrights. In its complaint the plaintiff accuses the defendant of operating a scheme to extort money from the plaintiff’s users with fraudulent takedown notices. The defendant allegedly targeted specific popular users, sent two takedown notices to the plaintiff claiming that the user uploaded infringing content, and then messaged the user demanding payment. If the user refused to pay the threat was a third takedown notice would be sent which would result in the termination of the user’s account with the plaintiff.

The plaintiff requests that the court award them compensatory damages for the time and effort spent dealing with these fraudulent takedown notices, attorneys fees and an injunction barring the defendant from submitting fraudulent takedown notices in the future.

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