Senator John McCain recently encountered first hand certain unintended consequences of the Digital Millennium Copyright Act (“DMCA”), a bill he voted to pass in 1998.  The DMCA provides copyright owners with additional tools to protect their works against unauthorized use.

A notable component of the DMCA is the “safe harbor” exception for operators of web sites that allow users to upload or post information or digital media, such as YouTube. In order to preserve their protection under DMCA safe harbor, site owners must remove the allegedly infringing material upon receipt of an appropriate written notice that the infringing material is available at the owner’s site.  However, a recurring problem with the automatic removal of material under the DMCA is the growing number of fraudulent taken-down notices.

Senator McCain faced removal of his election campaign ads after YouTube received a DMCA take-down notice.  Senator McCain’s counsel, Trevor Potter, claimed the take-down notice was falsely filed to remove the Senator’s information. YouTube responded in an open letter to Mr. Potter, acknowledging the problem with false take-down notices, and the steps it takes to protect its users.  Among those steps is compliance with the DMCA’s provisions giving content posters the ability to file appropriate counter-notifications in response to erroneous take-down notices.  Per YouTube’s policy, after 10 business days the material will be re-posted unless a copyright infringement suit is filed. It is also important to keep in mind that DMCA users faced with wrongful take-down notices to sue the senders of the notices for damages resulting from their misrepresentations.

The DMCA is not without pitfalls, as the McCain case demonstrates. A company with content on the web must be prepared to work closely with counsel to address claims of copyright infringement, regardless of whether those claims come from the company, based on another party’s unauthorized use, or from a third party, based on claims that the company is using the content without permission.