Automattic is the owner of WordPress.com, the popular blogging and website development software. Some time ago, Automattic sued two parties for using the notice-and-takedown provision of the Digital Millennium Copyright Act (“DMCA”) to silence criticism. According to the Automattic Complaint, the parties abused the provision and were liable for damages under 17 U.S.C. § 512(f) for misrepresentation in connection with a takedown notice.
For background purposes, the DMCA requires web hosts to take down content in response to a notice of copyright infringement. It is not uncommon for hosts to take down content even if the claim is not valid. In this case, Oliver Hotham published a press statement from a straight pride group. The straight pride group filed a takedown notice to remove the statement from Hotham’s website.
Automattic obtained a default judgment for $25K. The Court Order stated “It is Ordered and Adjudged that defendant Nick Steiner pay damages in the amount of $960.00 for Hotham’s work and time, $1,860.00 for time spent by Automattic’s employees, and $22,264.00 for Automattic’s attorney’s fees, for a total award of $25,084.00.” Whether the Plaintiffs will be able to collect is a completely different story.
Unfortunately, it appears that this decision begs more questions than it answers. It is now known that Automattic will sue DMCA abusers. What is not known is who will really win a contested case. This case was decided by default, meaning that the defendant did not bother to appropriately respond to the allegations. What would have happened if the case had been fully litigated? In the meantime, the abusive DMCA take down notices are likely to continue.