False DMCA Claims: What Copyright Doesn't Protect, the Penalty for Bogus Takedowns, and How to Protect Your Business
A DMCA takedown notice is a powerful tool. One email to a web host can take a page, a site, or even a whole domain offline, often before anyone has looked at whether the claim holds up. That power is supposed to protect creators. But it also gets abused, and sometimes the person abusing it is a competitor. Here's what copyright actually protects, what the law says about false claims, and what your business can do to protect itself.
This is general information, not legal advice.
I'm a trainer and a business owner, not a lawyer. Laws vary by country and state, and every situation is different. If you receive a takedown notice, or you're thinking about taking action over one, talk to an intellectual property attorney.
What a DMCA takedown notice is
The Digital Millennium Copyright Act (17 U.S.C. § 512) gives web hosts and platforms a "safe harbor": they aren't liable for what their customers post, as long as they act quickly to remove material when a copyright owner sends a proper notice. That's why hosts tend to remove first and ask questions later. Judging whether a claim is valid isn't their job, and getting it wrong could cost them their protection.
A notice is only valid if it includes all six of these (§ 512(c)(3)(A)):
- A signature, physical or electronic, of a person authorized to act for the copyright owner.
- Identification of the copyrighted work the sender says was infringed.
- Identification of the infringing material and enough information for the host to find it.
- Contact information for the person making the complaint.
- A statement of good-faith belief that the use isn't authorized by the owner, its agent, or the law.
- A statement that the information is accurate, and, under penalty of perjury, that the sender is authorized to act for the owner.
Notice what the perjury statement covers: only that the sender is authorized to act. It doesn't cover the claim that your material infringes. That's why a separate law, § 512(f), exists to deal with false claims.
One more thing the DMCA doesn't cover: trademarks. If someone says you used their brand name or slogan as a trademark, that's a trademark complaint, with its own rules. "They copied our idea" isn't a copyright claim at all.
Know your rightsWhat copyright generally does not protect
Copyright protects original expression: the actual words, images, video, music and code someone created. It doesn't let anyone own the building blocks everyone uses. Under U.S. law, these are generally not protected by copyright:
Ideas, methods and systems
No one can copyright an idea, procedure, process, system, method of operation, concept or principle, only the specific way it's expressed (17 U.S.C. § 102(b)). The idea of a practice exam, a readiness score or a study plan is free for anyone to use.
Words and short phrases
Names, titles, slogans and short phrases aren't copyrightable (37 C.F.R. § 202.1(a); Copyright Office Circular 33). A tagline may be protectable as a trademark if it's used as a brand, but that's a different law, and it isn't a DMCA matter.
Facts and data
Facts belong to everyone. The U.S. Supreme Court held that facts aren't copyrightable, and that only original selection or arrangement can be (Feist v. Rural Telephone, 1991). Exam codes, question counts, prices and job titles are facts.
Common information
Works made entirely of common-property information with no original authorship, such as standard calendars, height and weight charts, rulers, and lists or tables taken from public documents (37 C.F.R. § 202.1(d)).
Layouts, formats and familiar designs
Familiar symbols and designs, lettering, typography, and simple variations in color aren't protected (37 C.F.R. § 202.1(a)). A web page laid out with an overview, objectives and an FAQ uses a format, not someone's creative work.
U.S. government works
Work created by U.S. federal government employees as part of their job isn't protected by copyright (17 U.S.C. § 105). Neither is anything in the public domain because its copyright has expired.
Standard elements of a subject
Courts don't let anyone own the expression that's standard or unavoidable for a topic ("scènes à faire"). When an idea can only be expressed a few ways, the idea and the expression "merge" and neither is protected.
Fair use
Even protected work can be used without permission for purposes such as criticism, comment, news reporting, teaching and research, depending on four factors (17 U.S.C. § 107). Courts have held that a sender must consider fair use before filing a takedown.
The law against false DMCA claims
Congress knew takedown notices could be abused, so it built in a penalty. Under 17 U.S.C. § 512(f), anyone who knowingly and materially misrepresents that material is infringing is liable for the damages that misrepresentation causes, including costs and attorney's fees.
Who can recover under § 512(f):
- The person accused of infringing, for lost sales, downtime and the cost of responding.
- The web host or platform that removed material because it relied on the false notice.
- The actual copyright owner or licensee, if they were harmed.
It works both ways: the same section applies to someone who files a false counter-notice. Keep your own responses honest.
In the case most often cited on this, Lenz v. Universal Music Corp. (9th Cir. 2015), the court held that a copyright holder must consider whether a use is fair before sending a takedown notice. Ignoring the question, or deliberately looking away, can count against the sender.
| Case | What happened |
|---|---|
| Online Policy Group v. Diebold (N.D. Cal. 2004) | A voting-machine company sent takedowns over leaked internal emails people were discussing online. The court found it had knowingly misrepresented infringement, and the company agreed to pay $125,000 in damages and legal fees. |
| Automattic v. Steiner (N.D. Cal. 2015) | WordPress's parent company and a journalist sued over a bogus takedown. The court awarded about $25,000, most of it attorney's fees, plus the writer's lost time and income. |
| Lenz v. Universal (9th Cir. 2015) | The court ruled that senders must consider fair use before filing. Ignoring it can expose them to liability. |
An honest note: § 512(f) cases are hard to win. You generally have to show the sender knew the claim was false, not just that they were wrong, and only a handful of cases have ended in money awards. What makes § 512(f) useful is often the threat of it. A letter from an attorney citing it can stop someone who's using takedowns as a weapon.
When it's a competitorThe extra risk for competitors who file false claims
When a takedown comes from a business that competes with you, it may expose the sender to more than § 512(f). Depending on the facts and the state, an attorney may also look at claims like these:
Interfering with your business
Many states recognize claims for intentionally interfering with someone's contracts or business relationships. A false notice that takes your store, booking page or classroom offline can fit that pattern.
Unfair business practices
State laws such as California's Unfair Competition Law (Bus. & Prof. Code § 17200) prohibit unlawful, unfair or fraudulent business practices, which can include misusing legal processes against a rival.
False statements about you
Telling your host or customers that you're stealing content, when you aren't, can raise trade libel or commercial disparagement claims in some states.
Losing their own access
Major platforms track who sends notices. Repeated or abusive filers can be ignored, restricted or banned, and many notices are published in the public Lumen database.
What to do when you receive a takedown notice
- Get the full notice. Ask your host for a complete copy, the case number, and exactly what action they took and when.
- Check that it's valid. Does it include all six required elements? Does it identify a real copyrighted work, and does the sender actually own it?
- Look at what's claimed. Is it something copyright protects, or a fact, an idea, a format or a short phrase? Is it actually similar?
- Decide how to respond. The fastest way back online is often to edit or remove the specific material and tell your host it's gone. That isn't admitting anything; it ends the dispute. If the claim is wrong and the material matters, you can file a counter-notice instead.
- Know how a counter-notice works. Under § 512(g), you state under penalty of perjury that the material was removed by mistake or misidentification, and agree to the jurisdiction of a federal court. The host forwards it to the sender and must restore the material in 10 to 14 business days unless the sender files a lawsuit. Have an attorney review it first.
- Push back on overreach. The DMCA asks hosts to remove the specific material identified. If your host suspended far more than that, such as a whole domain or your email, ask them in writing to restore it and to contact you before acting on any future notice.
- Document everything. Save the notice, screenshots before and after, launch and publication dates, the outage window, and any lost sales or students. If you take action later, that record is your evidence of damages.
- Check the sender's history. Search the Lumen database for other notices from the same sender. A pattern of questionable claims matters.
- Talk to an IP attorney. A cease-and-desist letter citing § 512(f) is often enough to stop it happening again, and many attorneys will quote a flat fee for one.
How to protect your business
Write everything in your own words
Look at competitors for ideas, never for wording. Distinctive phrasing, product names and taglines should be clearly yours. Give someone nothing real to point at.
Keep dated proof of what you published
Save important pages to the Wayback Machine (web.archive.org, "Save Page Now") when they launch, and keep dated drafts and files. If anyone claims you copied them, you can show who published first.
Register your most important content
In the U.S., you need a copyright registration before you can sue over your own work (17 U.S.C. § 411), and registering early makes statutory damages and attorney's fees possible (§ 412). Registration is inexpensive at copyright.gov.
Trademark your brand names
Copyright won't protect a name or slogan, but a trademark can. Registering the names that matter most gives you real protection, and it lets you act against someone who imitates you.
Keep your domain separate from your hosting
If your registrar, DNS and web host are all the same company, a single complaint can take down your website and your email at once. Registering your domain somewhere that won't suspend it over a content dispute keeps a complaint about one page where it belongs.
Make sure you'll hear about it fast
Put an address that doesn't depend on your own domain, like a personal Gmail, on your registrar and hosting accounts, so their warnings still reach you if your domain goes down. A free uptime monitor will text you within minutes if your site disappears.
Know the rules before someone uses them against you
Takedown notices protect real creators. Knowing what copyright covers, and what it doesn't, is the best defense against the ones that don't. If you're dealing with a notice right now, document everything and talk to an IP attorney before you respond.
Questions about our training? Call 855-868-4467 or email sasmith@thinqtanklearning.com.
Where this comes from
- 17 U.S.C. § 512: notice requirements, § 512(f) misrepresentation and § 512(g) counter-notice (Cornell LII)
- 37 C.F.R. § 202.1: material not subject to copyright (Cornell LII)
- U.S. Copyright Office, Circular 33: Works Not Protected by Copyright
- EFF: Online Policy Group v. Diebold, $125,000 for false infringement claims
- Eric Goldman, Technology & Marketing Law Blog: Automattic v. Steiner
- Lumen database of takedown notices
— Scott