“Good faith” in DMCA take-down notice should mean simple honesty.

18 06 2009

DMCA Section 512 gives copyright owners an efficient means of responding to online infringements and provides a safe harbor protection for online providers. But some courts suggest that “good faith” in sending a take-down notice may require the copyright owner to evaluate whether the online copying is fair use, these decisions undermine the notice and take down system.

“Good faith” is an elusive concept. Ordinarily, however, it means being “honest” and not necessarily “careful.” It certainly does not require that the person make complex judgments about law before taking actions. But what should it mean in the notice-takedown-counter notice of DMCA 512? I suspect that the intent was to require honesty, not legal analysis. The rule should be: so long as there are no hidden agendas or lies, a notice and resulting take-down should not be subject to challenge in law. But some cases do not fully support this approach.


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