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

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.