But What If A Takedown Notice Isn't Actually A DMCA Takedown?
from the legal-gymnastics dept
We already covered the judge’s ruling about how copyright holders need to consider fair use before sending a DMCA takedown notice, but there’s another part of Universal’s position in this case that has been widely ignored (even by the judge in the case), but which Ethan Ackerman wisely calls attention to: Universal claims that the takedown letter doesn’t violate the DMCA because it wasn’t actually a DMCA takedown. Instead, they said it was just a friendly “request.”
This may seem like a silly assertion or, at best, a minor side point, but it could become quite important. The DMCA has some very specific conditions that those sending takedowns need to meet — but there’s nothing really stopping anyone from sending a request that isn’t specifically a DMCA takedown notice. For copyright holders, this would remove some of the power of the takedown notice, as it wouldn’t require the service provider to react, like a DMCA notice does. However, if rulings like this one stand, adding some amount of liability to copyright holders sending DMCA takedown notices, some may actually find it safer to send non-DMCA takedowns on the assumption (probably correct) that most service providers will treat them exactly the same as a DMCA takedown. In other words, would copyright holders “opt-out” of the DMCA terms in order to avoid that liability? It will be worth watching.
Of course, in this case, the court just assumed that even if it didn’t hit all the criteria, it was for all intents and purposes a DMCA takedown letter. But that won’t always be the situation in future cases — especially if copyright holders become even more explicit that the letters aren’t DMCA takedowns, but some other type of takedown request. And, of course, this could expand as well — where a total non-copyright holder could send such “requests” for takedowns, and they conceivably might not be violating the DMCA’s provision against false takedowns, because they won’t even fall under the DMCA. One way or the other, you can bet lawyers are going to be busy.