Much Ado About a DMCA Takedown Notice

Here is a story that would be an excellent fact pattern for a media law exam. Copyright! DMCA! Libel! Oh my…. Well, at least I hope it will be a topic of interest for the readers of this blog.

Background

Consider the following fact pattern, drawn from a series of blog posts by the parties to this dispute. (Each party has since made an effort to delete their respective posts, so this analysis will not refer to the parties by name.)

Photographer took a picture of downtown Houston, and then posted the photograph on his blog. He later discovered that several sites had used the photograph without his permission, and he proceeded to send them all DMCA takedown notices. Some of the sites took down the pictures, and others asked to be granted a license. Fourteen of the sites which received a DMCA notice from Photographer were owned by the same person, Blogger. These fourteen sites were all hosted by GoDaddy, whose policy is, upon receipt of a complaint, to remove or disable access to sites which are allegedly infringing copyright. Accordingly, access to all of Blogger's sites was disabled.

One of Blogger’s disabled sites was a blog she uses as a platform to express her support for a local candidate in a race for Sheriff. Another of these sites was a site designed to inform the public about a non-profit organization whose goal is to promote awareness for the education needs of special needs children (Nonprofit Organization). Blogger is Nonprofit Organization’s President.

According to Photographer, Blogger contacted him after her sites were taken down by GoDaddy, complaining about the issue, and asking him to reconsider his complaint in light of the worthy cause championed by Nonprofit Organization. Photographer then sent an email to GoDaddy asking for Blogger’s sites to be put back up, which was done.

Blogger allegedly contacted Photographer again after the sites were restored. She contended that she had lost thousands of dollars in billable hours as a result of the Nonprofit Organization site being taken down. She also claimed that, by taking down her political blog, Photographer had compromised the election, and she threatened to sue Photographer for sending the DMCA notice.

The material facts are somewhat disputed. The purpose of this post is not to try to assess who did what, but rather to address some of the legal issues raised by both Photographer and Blogger.

Does Photographer Have a Copyright in the Photograph?

In order to be protected by copyright, a particular work does not have to be registered with the Copyright Office, nor is it necessary to have a copyright notice [©] placed on it. In order to be protected by copyright, it is sufficient that that work is an original work of authorship, fixed in any tangible form. Therefore, even if a work is seen on the Internet without a ©, or even without attribution to a particular author, it may nevertheless be protected by copyright. It is best for citizen publishers and authors to assume that such is the case.

Was GoDaddy's Takedown Appropriate Under The Digital Millennium Copyright Act (DMCA)?

If an author discovers that his work has been reproduced online by a third party without his authorization, he may send the Internet Service Provider (ISP) a ‘DMCA take-down notice,’ informing the ISP that it is hosting copyright-infringing material. The DMCA provides a safe harbor for ISPs if, when notified of a claimed infringement, they respond “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity” (17. U.S.C. § 512(d)(3)).

It is thus important for GoDaddy to have a procedure in place dealing with requests such as the one sent by Photographer. It seems, however, that GoDaddy took down all of the fourteen sites registered under Blogger’s name, some of which did not contain Photographer’s photograph, including the blog where she discusses her views on politics. One can regret that an ISP would respond to a DMCA takedown notice with a heavy hand, and that an author’s request to protect his work from infringement has as its consequence shutting down another author's speech. Society does not benefit from this.

However, by responding in an overbroad fashion, the ISP lowers its risk of litigation (so long as it does not thereby violate its user agreement with its customers). The ISP may thus offer consumers a better financial deal on hosting services. GoDaddy indeed offers low price point deals.

Was Blogger Making a Fair Use of the Photo?

Fair use is an affirmative defense to a claim of infringement. The general question here is whether the use of the protected work by a non-profit organization is a