How many DMCA cases are actually pursued? It seems like most DMCA requests are simply scare letters. You could almost ignore all of them and never run into any trouble.
Ignoring a properly formed and delivered DMCA takedown notice results in site owner losing safe harbor from contributory copyright infringement claims. So a site can chose to ignore them, but if they do they can then be sued for their users' actions.
Meanwhile abuse of DMCA for reasons other than legitimate copyright claims seems (subjectively) to be occurring with increasing frequency, and, with no obvious penalty for the organisations submitting false DMCA takedowns, so are likely to continue, to the detriment of the rest of the us.
"In order to protect against the possibility of erroneous or fraudulent notifications, certain safeguards are built into section 512. Subsection (g)(1) gives the subscriber the opportunity to respond to the notice and takedown by filing a counter notification. In order to qualify for the protection against liability for taking down material, the service provider must promptly notify the subscriber that it has removed or disabled access to the material. If the subscriber serves a counter notification complying with statutory requirements, including a statement under penalty of perjury that the material was removed or disabled through mistake or misidentification, then unless the copyright owner files an action seeking a court order against the subscriber, the service provider must put the material back up within 10-14 business days after receiving the counter notification.
Penalties are provided for knowing material misrepresentations in either a notice or a counter notice. Any person who knowingly materially misrepresents that material is infringing, or that it was removed or blocked through mistake or misidentification, is liable for any resulting damages (including costs and attorneys’ fees) incurred by the alleged infringer, the copyright owner or its licensee, or the service provider. (Section 512(f))"
Effectively, all it does is offer safe harbor for an ISP, with ISP loosely defined.
Congress attempts to offers a pseudo mediation framework to limit/remove liability from the ISP for the acts of its users.
If the ISP complies with the DMCA, the ISP is immune from liability for copyright infringement.
Here's the part the ignorant ignore:
If the target of a DMCA notice sends a COUNTER-NOTICE, the ISP will/must/should put their stuff , else the ISP can be liable for taking it down without case.
Read the DMCA, it's fairly short as these things go.
Actually, if the target of a DMCA notice files a counter-notice, the ISP has to reinstate the content within 10 days unless the person/entity filing the DMCA notice alerts the ISP that an injunction has been filed within a specified period of time. See 17 USC § 512(g)(2)(A)-(C).
No, Title II of the DMCA does not create any obligations for anyone. It is not illegal to completely ignore these notices.
Under copyright law, distributing copies of someone's protected work without authorization is illegal. Many types of internet service providers, as part of fulfilling the service they offer, distribute copies of works on behalf of others. Web hosts serve files their customers have uploaded, video sites stream user uploads, discussion boards serve messages written by users, etc. Thus, an ISP may come to unknowingly distribute copyrighted works without authorization, and would be subject to lawsuits for doing so.
The DMCA offers a way for these ISPs to avoid being sued despite having indeed infringed someone's exclusive rights under copyright law. If they register an agent with the copyright office, and follow a procedure for disabling and re-enabling access to materials they distribute based on certain notices, they then cannot be sued for having hosted that specific material in the past.
The DMCA does not require that anyone register an agent and follow those procedures, it only offers a benefit if you choose to do so.
