A few years ago, you may recall that Universal Music issued a takedown for a 29-second video involving a little kid dancing to a Prince song playing on the radio in the background. While the woman issued a counternotice and had the video put back online, the EFF sued Universal Music, claiming that it had filed a false DMCA takedown, since it did not take fair use into account. Universal Music tried to claim that it it shouldn’t have to consider fair use, since fair use is just a defense, not a right. While the court eventually did (much to many people’s surprise) say that copyright holders do need to take fair use into account, it’s not really clear what sort of punishment there is for those who do not. In fact, we’ve seen that it’s quite difficult to get any actual punishment for those who file bogus DMCA takedowns.
With that in mind, it’s interesting to see that the EFF is now trying to recover its legal fees in the case, claiming that Universal’s actions violated section (f) of the DMCA, and thus it should be liable for attorneys fees. Universal claims that there is already a “remedy,” which is the counternotice process. But if that were the only remedy, then why does the law allow for legal fee recovery. Furthermore, if the only remedy is a counternotice process, there is nothing to really stop the filing of bogus DMCA notices, since there is no punishment for such activity.
In the linked article, Bennett Haselton argues that paying legal fees like this might not actually make sense, and worries about the legitimate content holder who accidentally files an incorrect DMCA getting hit with a big legal bill. But, again, I’m not sure how that applies. Shouldn’t we be just as worried about the completely innocent individual hit with a DMCA takedown and the process they need to go through to get their legal content back online? Given how massive the damage awards can be for simple (even incidental or accidental) copyright infringement, the fact that there is barely any real punishment for bogus copyright claims seems incredibly one-sided and unfair.
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