Notice, Takedown, and the Good-Faith Standard: How to Protect Internet Users From Bad-Faith Removal of Web Content

Abstract

At the time of this writing, 12 years have passed since Congress enacted Title II of the Digital Millennium Copyright Act (“DMCA”), which was intended to balance the urgent need for copyright protection on the Internet against the equally pressing need to protect Internet service providers (“ISPs”) from secondary liability for copyright infringement. The rights of three parties are involved: (1) copyright owners, who create expressive works for publication, (2) ISPs, who provide access to the Internet and services on the Internet, and (3) Internet users. This paper proposes that, given the extrajudicial nature of the takedown process, the proper standard for sending a takedown notification is for copyright owners to conduct an initial review of the website sufficient to form a good-faith belief. In addition, courts should allocate the burden of proving the copyright owner’s good-faith belief on the copyright owner, not on the Internet user.

Keywords: Copyright, Digital Millennium Copyright Act, DMCA, Takedown, Free Speech, First Amendment, Internet