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Joe Obenberger · 03-21-2012, 05:55 PM

Quote:

Originally Posted by Quentin

The short answer is yes, you can sue without first issuing take-down notices to the target of your lawsuit.

I'll let JD cover the question of when such an approach might be appropriate, or better/worse than starting out by sending notices, but I can tell you this much: Sending out defective DMCA take-down notices (which many rights-holders and/or representatives working on behalf of those rights-holders have done and continue to do, unfortunately) is a great way to end up litigating the nature of your notices before you get anywhere with litigating the actual claims of your complaint against the other party in your lawsuit.

Quentin's right. Look, people are normally responsible even for innocent infringement. That's the basic rule of law. Even if they had no idea that an image or text is owned by someone. But no one would become a host, and the Internet never could have been built if innocent hosts were liable for the infringement. So, Congress enacted the DMCA to give them a defense against innocent infringement, conditional on compliance with the notice and takedown provisions. It's not a sword, and noncompliance with it by a host does not gum up the works so that you can't sue them. It's only a shield for innocent infringer hosts who comply with the notice and takedown provisions. Perfect a proper DMCA Notice and sue them for infringement. If it stays up after your perfect Notice, it's no longer innocent and punitive damages are available. The law imposes a liability on them for doing nothing to cure the infringement with actual notice from you even despite some formal defects in the notice, but you will, as Quentin noted, make it go faster and smoother with a perfect notice.

I agree that repeated, serial uploads of the same content make it a devil of a problem in real life, and the litigation in that direction has not been encouraging to copyright holders.