Company ordered to stop sending DMCA takedown notices to eBay

US-Great-Seal-Obverse The DMCA creates a “safe harbor” for online service providers (OSPs) against copyright liability if they adhere to certain provisions of the act.  Most notably, if an online service provider immediately “takes down” any allegedly infringing content in response to a properly filed DMCA notification, the OSP avoids copyright infringement liability.  As you might imagine, OSPs are quick to comply with DMCA requests, and this has led competitive companies to occasional abuse of the DMCA system.

Enter Design Furnishings, Inc. and Zen Path, LLC. Both companies sell wicker furniture on eBay.  It seems that Zen Path had taken to filing a slew of DMCA takedown requests with eBay to have their competitor’s auctions removed from the site. In the requests, Zen Path alleged that Design Furnishings was infringing on the “copyright” of their furniture design.

Of course, the Copyright Act specifically excludes “useful articles” from copyright protection, so the claims were more or less bogus. (Note: Patents protect useful articles.)  Design Furnishings filed suit against Zen Path and won a restraining order that prevents Zen Path from filing any subsequent DMCA notices against them.  In finding for the Plaintiff, the court found that 1) Zen Path knew that it doesn’t hold a valid copyright claim, 2) Design Furnishings would likely suffer irreparable harm as a result of continued takedown requests, and 3) The public interest would be served by nipping these bogus claims in the bud.

The applicable law holds that Zen Path may even be found liable for not only Design Furnishing’s damages, but also their costs and attorneys’ fees in bringing the suit.

17 USC 512 (f)

Misrepresentations.— Any person who knowingly materially misrepresents under this section—
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Let this be a lesson to all any would-be DMCA bullies out there: You’d better know what you’re doing before you file that takedown request.

H/T:  Evan Brown at Internet Cases

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