Court Recognizes That DMCA Process Goes Against Basic Copyright Concepts
from the about-time... dept
We already wrote about the recent court ruling issuing a temporary restraining order on a furniture company for abusing the DMCA. However, there was a separate part of the ruling that was quite interesting, and deserved separate attention, so I decided to do a separate post on it. Towards the end of the ruling, the court notes that one of the problems with the way eBay deals with the DMCA (i.e., automatically taking down any content that gets a takedown message) flips the basic burden structure of copyright law:
Here, the public interest is in fact benefitted by granting a TRO, because absent eBay’s policies, designed to avoid eBay’s liability for intellectual property infringement, it would be the claimed copyright holder who would bear the burden of proving the copyright infringement…. That burden is essentially shifted under eBay’s policy. To withhold a TRO would allow anyone to effectively shut down a competitor’s business on eBay simply by filing the notice that the seller’s product allegedly infringes on the complaining party’s copyright.
This is a point that we’ve made before, in pointing out that the DMCA process flips the standard burden of proof needed for blocking speech, but this is the first time I’ve seen a court recognize that point and find it troubling. Of course, the court seems to blame eBay’s policy, ignoring the fact that eBay’s policy is the inevitable result of the DMCA’s liability safe harbors. It would be nice to see this ruling cited in the future in challenging the overall DMCA process.