Failure to Follow DMCA’s Safe Harbor Procedures Does Not Create Affirmative Cause of Action

The Western District of Wisconsin recently held that an internet service provider (“ISP”), cannot be held liable for claims that that ISP failed to follow the Digital Millennium Copyright Act’s (“DMCA”) takedown provisions.

Defendant Google provided internet hosting services for Plaintiff Gelbooru, a website related to Japanese animation that allows users to upload, search, and comment on its images and content. Google received multiple DMCA takedown notices from unknown parties claiming that certain Gelbooru content infringed their copyrights. In response, Google disabled this content and redacted the takedown notices to remove the copyright holder’s contact information before forwarding them to Gelbooru.  Gelbooru submitted multiple counter notices to Google, arguing that the content was not infringing, and asking Google to restore it. Google did not restore the content, and Gelbooru filed suit.

In addition to limiting the liability of ISPs for copyright violations committed by their users, the DMCA creates a “safe harbor” that protects them from suit for disabling allegedly infringing content. To qualify for this safe harbor, under Section 512(g), the ISP must promptly notify the alleged infringer that its content has been disabled. The alleged infringer may then file a counter notice asserting that the disputed content does not infringe and was wrongfully removed. Upon receipt of a valid counter notice, the ISP must then “promptly provide[]” a copy to the copyright holder and unless the copyright holder files suit against the alleged infringer, restore the disputed content within ten to fourteen business days. 

Gelbooru alleged that Google violated the DMCA because it: (1) redacted the copyright holder’s contact information on the takedowns; (2) did not restore the disputed content within ten to fourteen business days; and (3) did not forward Gelbooru’s counternotices to the copyright holders. The court granted Google’s motion to dismiss for failure to state a claim.

According to the court, Section 512(g) does not create any affirmative cause of action, but only a defense to liability. “So even if Google did not follow the procedure entitling it to a safe harbor defense in this case,” the court reasoned, “the effect is disqualifying it from that defense, not creating liability under § 512(g) of the DMCA for violating plaintiffs’ rights.”

The case is Hopson v. Google, LLC, No. 21-cv-320-wmc (WED. Wis.).