Fraudulent "Takedown" notices on the rise

Rights-holders in the digital age make use of what are known as "DMCA Takedown Notices" to require search engines and registrars to remove listings that direct users to infringing content.

Millions of these notices are served worldwide every year. However fraudulent notices are cropping up with increasing regularity. While Netflix, Disney and Amazon issue thousands of these notices, fraudsters are now submitting notices as if they were on behalf of these companies, masquerading as their lawyers.

The fraudulent DMCA notices that are cropping up most regularly at the moment fall in to one of two categories. The first are notices designed to generally disrupt and frustrate the DMCA process. These notices raise the cost of processing DMCA notices for the search engines and registrars. Those costs are raised because the fraudsters are sophisticated enough that some of their fraudulent notices are able to get by the automated sifters.

The second type is significantly more devious (and, begrudgingly, very clever), and it is questionable whether they are actually undesirable from a rights-holder perspective. This fraud consists of digital pirates fraudulently masquerading as a legitimate rights holder ("the first pirate") and issuing notices against a different digital pirate ("the second pirate"). The purpose is to lower the second pirate's visibility to potential illegal content consumers, thereby increasing traffic to the first pirate's site.

If legitimate rights-holders engaged in this type of practice it would amount to an unlawful interference with trade. However, as the result of such fraud is to curb (at least one) digital pirate's activity, the act is not interfering with lawful trade. In fact, it is likely that rights-holders are delighted by these particular fraudulent notices, as pirates tend to know pirates, and will be aware of other illegal content providers.

What is undoubtedly harmful, however, is the potential damage to the reputation of the law firms impersonated, given the propensity for spelling, grammar, typography and vocabulary mistakes in the fraudulent notices.

Obviously this practice cannot go unchecked, and the search engines will be looking for ways to put a swift end to this abuse of the system.

If you have any questions on the above, please do not hesitate to contact the team at McDaniel & Co. on 0191 281 4000 or legal@mcdanielslaw.com.