You have a business that sells its goods by listing them on an Internet Service Provider (“ISP”) website such as Amazon® or Ebay®. One day, you receive a “Take-Down Notice” informing you that the ISP has removed your listings because someone has demanded that the ISP delist or “take down” your goods from the website pursuant to the Digital Millennium Copyright Act (“DMCA”). The Take-Down Notice informs you that the demander claims that your goods infringe her copyrights. However, after looking into the matter, you believe that that no valid claim of infringement exists, or that the person demanding the Take-Down Notice has no copyrights. Further, you suspect that the claims against you were made to gain an unfair competitive advantage, or to extort you into paying money in exchange for the withdrawal of the demand. You are not alone.
Fraudulent takedown demands have become a widespread problem for merchants who offer their wares on the Internet. Studies have shown that many Take-Down demands were made even where the requester does not own any copyrights. Google’s Transparency Reports state that approximately 40 percent of Take-Down demands are based on invalid copyright claims. Indeed, abuses of the DMCA process include claims to copyrights in public domain works. To make matters worse, some Take Down demands are spread throughout the Internet by bots.
In general, the DMCA gives ISPs immunity from infringement suits provided they comply with certain procedures. An ISP does not have to decide the merits of a Take Down demand’s infringement claim. The ISP need only comply with DMCA system requirements, ensure that demands contain certain specified information, and make prompt notification of the demands. Once a demand is made with the required information, the ISP will delist your goods and notify you of that fact, together with information identifying the demander.
The DMCA also provides a very useful tool for getting your goods back on line – the Counter-Notice. After the ISP informs you that your goods have been taken down, you can send the ISP notification stating that you have a good faith belief that your goods were removed from the site “as a result of mistake or misidentification.” Your Counter-Notice will be forwarded to the demander with a notice that your goods will be re-listed within 10 days, unless the demander provides notice that she has filed an infringement lawsuit seeking a restraining order from a court which enjoins you from selling infringing goods on the ISP’s site. If no lawsuit is filed, the ISP must put your goods’ listing back on the site “not less than 10, nor more than 14 business days following” the receipt of the Counter-Notice.