Lydia Pallas Loren

Copyright owners routinely obtain prompt removal of allegedly infringing materials from the Internet using takedown notices. The Copyright Act's takedown procedures are an attractive and powerful tool to combat infringement because they do not require filing a federal copyright infringement complaint, nor do they involve any neutral assessment of the copyright owner's infringement assertion. Because the takedown regime is embedded in safe harbor protections that immunize online service providers from monetary liability for copyright infringement engaged in by Internet users, the statute creates an important incentive for Internet Service Providers ('ISPs') to comply automatically with takedown requests sent by copyright owners. Unfortunately, this prompt method for obtaining removal of material from the Internet lends itself to abuse by copyright owners seeking to silence critics or to obtain a far broader protection for their works than copyright law actually affords. Congress attempted to provide a shield for lawful, noninfringing activity in the takedown regime itself: the statute permits individuals to send a counter-notice that can result in the allegedly infringing material being reposted. The practices of most online service providers, however, make the counter-notice problematic and difficult to use, reducing its effectiveness as a true shield for lawful, noninfringing activity. Congress also created a mechanism to deter abuse of the takedown regime: A federal cause of action for misrepresenting that posted material is infringing. If taken seriously, the misrepresentation claim has the potential to shape the behavior of copyright owners who wield the powerful sword of the takedown notice. To date, however, few misrepresentation claims have been brought, and the early interpretations of the provisions have limited its effectiveness in curbing abuse. Because a complete understanding of the role of the misrepresentation claim within the statutory scheme should inform any judicial interpretation of its requirements, this Article first places the misrepresentation claim in the context of the takedown regime. It then examines litigation dynamics as well as the statutory elements of a misrepresentation claim, offering suggestions on how these elements should be interpreted in light of the purpose and context of the statute. If appropriately interpreted, the misrepresentation claim holds great promise for protecting both copyright owners and lawful users of copyrighted works.

Deterring Abuse of the Copyright Takedown Regime by Taking Misrepresentation Claims Seriously

Julie E. Cohen

Ruth L. Okediji

Maureen A. O'Rourke

Copyright in a Global Information Economy, Fifth Edition provides both comprehensive topic coverage and integrated treatment of doctrinal, theoretical, international, and policy questions. It seamlessly facilitates a variety of teaching styles and preferences ranging from the more theoretical to the more practice-oriented. Each section includes practice exercises that enable students to apply what they have learned and to practice skills relating to advocacy, drafting, and client counseling. New to the Fifth Edition: Updated and streamlined introductory materials on copyright’s context and justifications Revised coverage of doctrines relating to authorship and copying in fact to emphasize problems that arise in organizational settings Coverage of the Music Modernization Act of 2018 and its implications for the specialized system of music copyright rules New case law on the extent of online service providers’ duty to maintain and implement procedures for terminating accounts of repeat infringers Coverage of the European Union’s Digital Single Market directive and its implications for online service provider obligations to copyright holders Revised coverage of materials relating to termination of transfers to reflect current controversies Professors and students will benefit from: Integrated treatment of doctrinal, theoretical, international, and policy questions Concise notes and questions that highlight the central problems in each topic area Multiple practice exercises in every chapter designed to enable both student review and practice-oriented teaching Integrated treatment of rules and considerations relating to copyright due diligence, licensing, and enforcement Comparative materials that situate the U.S. copyright regime in its global context

Lydia Pallas Loren

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