"Good faith" in DMCA take-down notice should mean simple honesty.
DMCA Section 512 gives copyright owners an efficient means of responding to online infringements and provides a safe harbor protection for online providers. But some courts suggest that “good faith” in sending a take-down notice may require the copyright owner to evaluate whether the online copying is fair use, these decisions undermine the notice and take down system.
“Good faith” is an elusive concept. Ordinarily, however, it means being “honest” and not necessarily “careful.” It certainly does not require that the person make complex judgments about law before taking actions. But what should it mean in the notice-takedown-counter notice of DMCA 512? I suspect that the intent was to require honesty, not legal analysis. The rule should be: so long as there are no hidden agendas or lies, a notice and resulting take-down should not be subject to challenge in law. But some cases do not fully support this approach.
Some anti-rights commentators criticize the notice and take down process of Section 512 as creating an environment in which posted material will be taken down even if it does not actually infringe a copyright since, from the service provider's perspective, there is an advantage to responding in that manner and coming within the safe harbor rules of Section 512. But, of course, the statutory intent was to provide an easy, efficient remedy for alleged infringement, and the Section 512 counter-notice provisions give a wrongly accused person the ability to have the material re-posted.
In addition, Section 512 requires that the notice contain a “statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.” Section 512(f) further states: “Any person who knowingly materially misrepresents under this section … that material or activity is infringing … shall be liable for any damages … incurred by the alleged infringer … as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing ….”
In Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195 (ND Cal. 2004) an anti-DMCA District Court held that a voting machine manufacturer was liable for issuing infringement notices to ISP's whose systems posted e-mails collected from within the company and criticizing the quality of its voting machine products. The court concluded that, in light of the public interest in information regarding voting machine quality, no reasonable copyright owner could have concluded that copying of these e-mails was anything other than fair use. In reaching that conclusion, it suggested that: “A party is liable if it "knowingly" … misrepresents that copyright infringement has occurred. "Knowingly" means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations.”
This standard wrongly imports an objective “reason to know” that is not implicit in ordinary usage of the word “knowledge.”
Shortly after Diebold, the Ninth Circuit considered a similar issue and announced the better standard. In Rossi v. Motion Picture Ass'n of Am., 391 F.3d 1000 (9th Cir. 2004), the Motion Picture Association (MPAA) was sued for tortuous interference with a contractual relationship when it issued a notification to the ISP that held the plaintiff's Website. Without having done any investigation beyond viewing the site, MPAA claimed that the site made infringing copies of motion pictures available to users and notified the ISP of this. The ISP shut down the site. The issue was whether the notice was privileged under DMCA. The court held that it was, even if MPAA acted unreasonably in not investigating beyond a mere view of the site.
The court held that the proper standard is the presence of a subjective belief in the accuracy of the notice (subjective good faith). There is no requirement of reasonable care or investigation -- that is, a reason to know standard does not apply. It held that: “A copyright owner cannot be liable simply because an unknowing mistake is made, even if the copyright owner acted unreasonably in making the mistake. Rather, there must be a demonstration of some actual knowledge of misrepresentation on the part of the copyright owner…. [A] lesser "objective reasonableness" standard would be inconsistent with Congress's apparent intent …”
Unfortunately, the Rossi standard may not insulate all notices from a claim of bad faith. In Lenz v. Universal Music Corp., 572 F.Supp.2d 1150 (ND Cal. 2008) the District Court held that the notice-giver must consider probable claims of fair use and that a failure to do so may constitute bad faith in clear cases. It commented: “Universal suggests that copyright owners may lose the ability to respond rapidly to potential infringements if they are required to evaluate fair use prior to issuing takedown notices [and] that the question of whether a particular use … constitutes fair use is … difficult for copyright owners to predict … However, while these concerns are understandable, their actual impact likely is overstated. Although there may be cases in which such considerations will arise, there are likely to be few in which a copyright owner's determination that a particular use is not fair use will meet the requisite standard of subjective bad faith …”
So the standard may still be in flux, but the balance seems to be being drawn in favor of allowing honest copyright owners to use the take-down procedures to protect their works without risking liability. This is an important approach to following in making the notice, take-down, counter-notice system work.
Professor Nimmer:
You write:
"Unfortunately, the Rossi standard may not insulate all notices from a claim of bad faith."
Do you really mean to suggest that "all notices" should be "insulate[d]...from a claim of bad faith"? Isn't the whole point of 512(f) that *some* notices (i.e., those that contain "knowing[] material[] misrepresent[ation]s") are not insulated from claims, but, rather, will result in liability for the sender?
Also, you suggest that the sender of a DMCA takedown notice should not have to perform "legal analysis." To me, this goes a bit far. While there are large areas of gray in the law of fair use, there is also some black and white. It seems to me reasonable to insist that copyright owners not send takedown notices in clear cases of fair use -- for example, when 3 seconds of a blogger's video is incorporated into a political ad: http://copyrightsandcampaigns.blogspot.com/2009/05/perez-hilton-copyright-cop-blogger.html
I should add that I raise these points not as an "anti-rights commentator[]," but as a strong supporter of copyright who is nonetheless disturbed when copyright owners abuse the notice-and-takedown process in an effort to silence their political opponents.
Best,
Ben Sheffner
Professor Nimmer,
It appears that you have never been a victim of a take-down notice. The DMCA puts huge power in the hands of the alleged copyright holder, which he can use to close down a web site he does not like, with no prior court approval.
The only restraint I can see on this power is the danger of damages under a claim of bad faith.
Bruce Thompson