Court Says DMCA Takedown Recipients Can Fight Back On Their Home Turf
Date : 11 Feb 2008 Category : Business
Techdirt
Someone who prefers to remain anonymous notes that a recent decision in the 10th Circuit holds that "when a company uses the DMCA to take down stuff from eBay on grounds of copyright infringemen, the company can be sued in the state where the target resides." Specifically, the copyright holder for artist Erte sent a DMCA takedown notice for someone selling products on eBay using a variation of an Erte design. The copyright holder also sent a letter threatening a lawsuit. The eBay seller responded by suing in the local, Colorado, courts, asking for a declaratory judgment that the products did not infringe, claiming fair use. The case here isn't about whether or not there was infringement, but what's the right location for the lawsuit. The copyright holders were based in Connecticut and the UK, and claimed that Colorado wasn't the right jurisdiction for the lawsuit. However, the Circuit court found otherwise, noting that it was clear that the sellers were in Colorado (it said so on their auctions) and the takedown notice clearly impacted people in Colorado.
The post on the topic concludes: "The outcome is a harsh lesson for copyright holders who send cease and desist letters willy-nilly." That basically suggests that perhaps those who rush out to send DMCA notices won't be so eager to dash them off, knowing they may be sued at the location of the recipient. However, I'd suggest that a different result is likely -- and it isn't a good thing. Rather than just sending off nasty letters threatening to sue, expect DMCA takedown notices to be followed quickly by actual lawsuits. We're already seeing this in the patent world. Patent holders who are afraid that someone they want to sue will sue for declaratory judgment in a more friendly jurisdiction simply decide to sue first in a favorable location (East Texas), without providing much warning at all. So, the end result of this might not be those issuing DMCA takedowns become more careful, but that they start filing more lawsuits.
Permalink | Comments | Email This Story
The post on the topic concludes: "The outcome is a harsh lesson for copyright holders who send cease and desist letters willy-nilly." That basically suggests that perhaps those who rush out to send DMCA notices won't be so eager to dash them off, knowing they may be sued at the location of the recipient. However, I'd suggest that a different result is likely -- and it isn't a good thing. Rather than just sending off nasty letters threatening to sue, expect DMCA takedown notices to be followed quickly by actual lawsuits. We're already seeing this in the patent world. Patent holders who are afraid that someone they want to sue will sue for declaratory judgment in a more friendly jurisdiction simply decide to sue first in a favorable location (East Texas), without providing much warning at all. So, the end result of this might not be those issuing DMCA takedowns become more careful, but that they start filing more lawsuits.
Permalink | Comments | Email This Story