Imposing Liability Under DMCA Counter-Notification Provision

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.

Section 512(c) is oft-litigated, and various specialized doctrines have emerged that deal with individual issues intrinsic to the statutory text, such as what form a valid takedown notice must utilize, and what knowledge a service provider must possess in order to incur liability for a failure to remove content even after receiving a conforming takedown notice. In contrast, '512(f) has rarely been the center of high-profile litigation. This may be starting to change. A federal appellate court heard oral arguments on July 7th concerning a major '512(f) case involving what is alleged to be an unsubstantiated takedown notice sent from a holder to a YouTube subscriber. The questions presented have been bifurcated into both the determination of the requisite mens rea so as to preclude '512(f) liability by the sender, particularly when the recipient raises an affirmative defense as the basis for any sender knowledge, and to what extent, and of what nature, should damages be awarded upon a finding of '512(f) liability.