Continuing DMCA Abuse - Kennedy Law, P.C.

Continuing DMCA Abuse

Author: Stephen A. Kennedy

Recently, Warner Bros. (“WB”) filed a DMCA Takedown Notice with Google. The takedown notice included numerous websites that WB sought to remove infringing content from. Normally, a Digital Millennium Copyright Act (“DMCA”) takedown Notice is used by a copyright owner for removal of infringing content from a website.


However, WB’s takedown notices included takedown requests for its own website and several of its own authorized sites, including the official websites for Batman: The Dark Knight and The Matrix. WB not only targeted itself for removal, but also targeted legitimate third party sales and streaming sites such as Amazon and Sky. WB even included requests for removal of IMDB content.


The DMCA requires that a takedown notice be based on a “good faith belief” that the targeted material is not authorized by the copyright owner. However, content owners that own mass volumes of copyrighted materials, such as WB, often rely on automated bots to scan the internet for potential infringing material. The problem with a reliance on bot software is that a robot cannot make the requisite “good faith” determination regarding infringement of copyrighted material. The robot scans file names and metadata performing automated searches and this is exactly how WB ended up accusing its own website of copyright infringement and requesting removal.

In WB’s case, Google itself discovered the anomalies and determined that it need not taken action to remove infringing content. However, with the number of DMCA takedown requests increasing exponentially, Google has noted that it is becoming increasingly harder for it to monitor content and to make determinations regarding potential infringing content. In its 2016 report, Google revealed that it received takedown requests for 558 million webpages, representing a sixty percent increase from 2015’s takedown request total.


DMCA takedown requests are often abused. One of the problems with the current DMCA regime is that once content is removed, there is a mandatory waiting period of ten business days before restoration, if any, is to occur. Even though the DMCA provides that filing a false notice is a violation of the Act itself (17 U.S.C. § 512(f))), it is exceedingly difficult to enforce this provision. It has been rendered effectively useless. False aliases are routinely used by the individuals filing false DMCA reports. Jurisdictional issues often arise and Courts have been hesitant to find any enforcement power in §512(f).


The US Copyright office recently invited public comments regarding the DMCA’s safe harbor provisions. Automattic, Inc., the corporation that operates WordPress, submitted lengthy comments to the Copyright Office. Among the comments, Automattic highlighted some of the DMCA abuse that they have expended resources in countering, including:

  • A scientific journaling blog that highlighted scientific papers that “may not be everything they seem. A critique was published that a reader did not agree with. The reader copied the critique to his own website and backdated the post. The reader then sent a takedown notice, which Automattic complied with, causing the original blog to be removed for ten days.
  • A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
  • A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
  • A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.

Many commentators have urged Congress to revise the DMCA to provide statutory damages for DMCA takedown abuse. It remains to be seen how the Copyright Office, known for being notoriously slow, will react to the plethora of responses that it received.

In the meantime, if you have a good faith belief that someone has unlawfully posted your copyrighted content or if you have been the subject of a DMCA takedown notice, call the offices of Kennedy Law, PC to speak with our copyright team today.

Chelsie Spencer is a Senior Associate with the Dallas office of Kennedy Law, PC. She may be reached at 214-716-4345.

Share this:
Call Kennedy Law