If you’re a copyright holder, the Digital Millennium Copyright Act (DMCA) can be a great means of removing infringed content from the internet. If you’re a web host, it provides a safeguard so you’re not held liable when your clients upload infringed content. Basically, if there is an infringement notice sent via the DMCA and the web host nixes the content in a timely manner, there are no liability issues—or at least that’s how it’s supposed to work. Unfortunately, like many laws, it’s not always so simple. The DMCA can get misused, like when a not so legitimate infringement claim gets filed. A web host is supposed to remove content with a takedown notice, but who’s to say what’s legitimate and what’s not?

In some cases, a web host might remove content in order to play it safe (or because they assume the claim is legitimate) when it’s not. That means the owner of the content spends time and money re-posting legitimate content. Ultimately, the content owner is the victim and the web host is the go-between trying to play by the rules. The good news is that a California federal court is making strides in this area. Now, if you’re a victim and web content owner, you might be able to recover damages including expenses and lost time if your content gets removed from an illegitimate claim. This is the first time in history such damages have been available.

Setting a Precedent

This federal court decision came about due to a journalist student/blogger, Oliver Hotham, who posted content on his WordPress site. He reached out to Straight Pride UK in order to initiate a Q&A session. In reply, Nick Steiner of the organization sent Hotham a press statement. Later, Hotham posted a blog that Steiner and the organization considers “unfavorable”, although it did incorporate some data from the statement.

In retaliation, Steiner sent a DMCA takedown notice to Automattic claiming that Hotham didn’t have the right to utilize content that was in the press statement. In the notice, Steiner asked Automattic to remove the blog post, and his wish was granted. Hotham then posted more content that related to the notice and removal, with Steiner sending two additional emails requesting more takedown. Finally, this back and forth resulted in a civil lawsuit filed by Hotham against Steiner. Hotham sought damages via the DMCA provision that prevents someone from misrepresenting infringement knowingly.


This particular provision notes that misrepresentation may lead to “any damages, including costs and attorney’s fees, incurred by the alleged infringer by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation.” In court, that “any damages” section was looked at closely.

According to Hotham, he sustained damages in time and resources with this kerfuffle. He also claims “chilled speech”, “reputational harm” and “emotional harm.” The court decided that “any damages” was intended to be a broad term by Congress. Ultimately, Hotham’s claims were rewarded, except the reputational harm claim was rejected. Hotham’s web host received $20,000 for attorney fees.

Lesson learned: An infringement claim had better be legitimate before any takedown notices are sent.

Category : General


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