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Imposing Liability Under DMCA Counter-Notification Provision

By Richard Raysman and Peter Brown

The Digital Millennium Copyright Act (DMCA) codifies a comprehensive procedure through which a copyright holder may petition for the removal of allegedly infringing content from a Web-publishing platform, e.g., video sharing and social media sites like YouTube and Vimeo. See, 17 U.S.C. '512(c). If the copyright holder believes in good faith that the targeted content is infringing, it can disseminate a “takedown notice” to the service provider pursuant to '512(c)(3). The service provider is then required to remove or disable access to the material “expeditiously” lest it be confronted with infringement liability itself.

Sending a DMCA takedown notice is not without risk. If the sender of the notice “knowingly materially misrepresents” that the content is infringing, under the '512(f) counter-notification provision, the recipient can sue for damages, including attorney fees and costs incurred by the purported infringer.

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