You’ve received a DMCA takedown notice. You’ve either decided not to read it, or have read it, and determined it’s valid, but decided not to do anything about it, whatever your reasons may be. Fair enough.
But aren’t you just the smallest bit curious what “might” happen as result of your inaction?
Ultimately, that outcome now rests on the shoulders of the individual whose material is being infringed upon. That’s because, provided you’re a U.S.-based online service provider (OSP), by ignoring a takedown notice to remove copyrighted material, you’re essentially vacating your claim to “safe harbor.”
Safe harbor, as in freedom from liability under the provisions of the Digital Millennium Copyright Act. Meaning, in the eyes of United States law, it no longer matters if you’re the one who posted the content or not. You’ve made yourself complicit.
At least in part, the safe harbor provisions of the DMCA were put in place to create a system that encourages a vital online landscape by encouraging dynamic content growth. It’s there to encourage OSPs by removing the likelihood that they’re dragged into a courtroom every time someone posts copyrighted content to their website. (Imagine where YouTube would be if they were constantly fighting courtroom battles, and the impact that would have had on the growth of their place in Internet history, and the growth of online culture in general).
On the flip side, the promise of freedom from liability has been a rather powerful incentive for OSPs to act quickly on DMCA Takedown Notices. Some would say many providers act a bit too quickly, and too recklessly, but that’s another matter.
Anyways, you’ve chosen another route. You’ve ignored a valid takedown notice.
So … What’s the worst that can happen?
Well, You Might Get Sued Part One: Civil Penalties
Under the DMCA, ignoring a takedown notice opens you, the OSP, up to liability … And this allows the copyright owner to file a lawsuit against you in a federal district court.
As to specific monetary damages you might now be subject to paying as an “infringer,” there are two basic types: “Actual Damages,” and “Statutory Damages.”
For those who like the details, provisions for these damages are laid out in Title 17 of the United States Code, which covers copyright law. Specifically, Section 502, Copyright Infringement and Remedies:
In General.—Except as otherwise provided by this title, an infringer of copyright is liable for either—
(1) the copyright owner’s actual damages and any additional profits of the infringer, as provided by subsection (b); or
(2) statutory damages, as provided by subsection (c).
“Actual damages” include any profits that you, as a content portal, may have made from hosting the copyrighted material. Section 502 goes on to detail how such damages are to be calculated:
In establishing the infringer’s profits, the copyright owner is required to present proof only of the infringer’s gross revenue, and the infringer is required to prove his or her deductible expenses and the elements of profit attributable to factors other than the copyrighted work.
What does this mean? Basically, the copyright owner only needs to show the court how much money you’ve made as a business, regardless of whether that money has come directly from the copyrighted material or not.
You, on the other hand, are required to prove the amount of money that DID NOT go into your pocket as a result of the infringed material. This includes both accounting for expenses you’ve accrued, and itemizing how much of your revenue comes from other sources.
So, you’re going to have some paperwork to do.
With all of that information in hand, it’s then up to the court to ultimately determine the actual amount of damages.
Of course, in may be that you made absolutely no money at all from keeping the copyrighted material up on your site. But that doesn’t mean you’re off the hook. Because in lieu of actual damages, there’s always…
Statutory what? Statutory damages are “required” damages provided by formal law. In the case of copyright infringement, this amount ranges from $750 to $30,000 (U.S. dollars). As in the case of actual damages, it’s ultimately up to the court to determine what amount is fair.
On the bright side, should you find yourself in this position, it’s an “either or” proposition. You won’t be asked pay both actual damages and statutory damages. But then again, if you really didn’t profit from the posted work, at the very least you’re going to be paying out $750 dollars for the violation, and probably more.
Once again, here it is laid out in Section 502:
Except as provided by clause (2) of this subsection, the copyright owner may elect, at any time before final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory damages for all infringements involved in the action, with respect to any one work, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $750 or more than $30,000 as the court considers just. For the purposes of this subsection, all the parts of a compilation or derivative work constitute one work.
f you read that carefully, that you may be correctly wondering what exceptions “clause (2)” provides. In a nutshell, this clause is an addendum allowing the court to increase or decrease the statutory damages in two cases.
In the first case, should the copyright owner be able to prove that you “willfully infringed” upon their copyright (i.e., you knew exactly what you were doing), the court can increase the maximum statutory damages to $150,000.
In the second case, if you, as the infringer, are able to prove you had no idea what you were doing, the court can reduce the damages to $200.
Of course, willfully ignoring a DMCA Takedown Notice makes plausible deniability a little hard.
Also, thus far all we’ve considered are civil charges.
Yes. There’s something else.
Well, You Might Get Sued Part 2: Criminal Charges
Criminal charges. It’s as bad as it sounds.
United States copyright law makes provisions for bringing such charges against copyright infringers in certain cases.
For example, can be proven that you were deliberately maintaining copyrighted material on your website for commercial gain? Let’s suppose you offer a subscription online service, in which your users are able to login and post full-length, copyrighted films. In such a case, you’re profiting and knowingly breaking the law, and criminal charges may levied against you.
Side note: When profiting so clearly from infringing material, even acting quickly to comply with DMCA Takedown Notices won’t necessarily save you from criminal charges. That’s because the according to the law, safe harbor is voided in cases where financial benefits can be directly tied to the infringing material.
Also, even if you’re not actually profiting, distribution of copyrighted works can still result in criminal charges. Specifically, if you electronically distribute copyrighted materials with a total retail value of more than $1000 (U.S. dollars) within an 180-day span.
From U.S. Code 17, Section 506:
In general.—Any person who willfully infringes a copyright shall be punished as provided under section 2319 of title 18, if the infringement was committed—
(A) for purposes of commercial advantage or private financial gain;
(B) by the reproduction or distribution, including by electronic means, during any 180–day period, of 1 or more copies or phonorecords of 1 or more copyrighted works, which have a total retail value of more than $1,000; or
(C) by the distribution of a work being prepared for commercial distribution, by making it available on a computer network accessible to members of the public, if such person knew or should have known that the work was intended for commercial distribution.
The actual criminal penalties for such actions are laid out in another section of U.S. Code (Title 18), and very greatly depending on circumstances.
Generally, in the case of commercial profiting, you could be looking at up to five years in prison for a first time offense if the total commercial value exceeds $2,500. Even you made less than $2,500 commercially from hosting the infringing material, you could face prison time of up to one year.
Or, if your only crime is electronic distribution, and you didn’t profit at all, depending on the extent of that distribution and the value of the copyrighted material, you could be looking at up to three years in prison for a first-time offense.
Then Again, the Whole Thing Could Go Away
Civil suits, criminal charges, damages, and jail time. And that’s not to mention attorney fees, which might just be the most costly part of all.
Ignoring DMCA takedown notices can have serious consequences not only to your business’s success, but to your livelihood. It’s easy to see why so many OSPs often accept takedown notices at face value, and blindly comply.
Of course, we didn’t consider another perfectly valid, and pretty common, outcome of ignoring a perfectly valid takedown notice.
Maybe the whole thing will just go away.
DMCA takedown notices cost nothing to file, and take very little time. That’s a far cry from hiring a lawyer, building a case, and spending time in court. Quite often, that’s trouble that copyright owners, particularly those without deep pockets, simply can’t afford.
So you could always roll the dice, and hope you’re dealing with somebody who doesn’t have the time, means, or will to see any legal action through to its conclusion.
Ultimately, once you receive a takedown notice, the next move is yours. Read it. Don’t read it. Take action, or shrug it off. Just bare in mind, that in the eyes of the DMCA, doing nothing isn’t exactly “nothing.” Even if it ends up coming to nothing.