Is a Take Down a Taking?

Posted by Cyberbear on May 1, 2015 in Copyright Law, DMCA, Intellectual Property, Internet |

Posted by: Chase Millea

April 20, 1015

dmcaUnder the Fifth Amendment to the Constitution, “private property [shall not] be taken for public use, without just compensation.” Traditionally we think of a government taking in the context of real property. If the government wants to knock your house down to build a highway, they are going to have to pay you (probably not as much as you wanted) for it.

Okay, so what about revenue-generating material on the Internet? For example, what about video gamers streaming their game play on websites like If the video game manufacturer files a takedown notice under the Digital Millennium Copyright Act (DMCA), and Twitch takes down the content in furtherance of obligations under the statute, does the video gamer get anything for having his or her product taken away?

The Copyright Act

Pursuant to 17 U.S.C. § 106, a copyright holder has exclusive right to

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;

(4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works, to perform the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and

(6) in the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.

Digital Millennium Copyright Act

DMCA § 501 provides: “Anyone who violates any of the exclusive rights of the copyright owner…is an infringer of the copyright or right of the author.” The DMCA also attaches liability to “secondary infringers.” Twitch, for example, could be found to be a secondary infringer by allowing copyrighted material to stay up without the authorization of the copyright owner.

But, there are limitations to the liability. Section 512(c) of the DMCA provides:

A service provider shall not be liable for monetary relief, or…for injunctive or other equitable relief, for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider, if the service provider—

(i) does not have actual knowledge that the material or an activity using the material on the system or network is infringing;

(ii) in the absence of such actual knowledge, is not aware of facts or circumstances from which infringing activity is apparent; or

(iii) upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material. (emphasis added)

So in other words, the Twitch or YouTube, or other OSP has an incentive to take the safe route when they receive a take down notice in order to save their own behind.

The Fifth Amendment

With the DMCA in mind, let’s go back to the Fifth Amendment. Commonly associated with the land taking, a Fifth Amendment taking may also refer, for example, to a seizure of personal property or trade secrets. A regulatory taking is an extension of the concept where government must compensate property holders who are unable to use their property because of overly burdensome regulation.

Primary among the requirements for a constitutional government taking is that it is for a public purpose. The case of Kelo v. City of New London confirmed that a public purpose may include assisting private development in order to raise tax revenue, but also upheld the need to pay just compensation.

Now the concept of just compensation is a bit murky, but for the sake of argument it suffices to say that it includes some form of payment to the owner in return for the government’s taking.

The Gamer Example

So applying the concept to our video game streamer, does he or she have a colorable claim to the government if Twitch takes down his or her content in compliance with the DMCA?

As always, it could go either way depending on the facts. On the one hand, if the gamer had a prior agreement with the developer and the developer was misrepresenting the infringement to inhibit the gamer from profiting from the content, it seems like the gamer was wrongly injured.

Then again, if the gamer knew he was infringing (because of a previous agreement with the developer), the developer should have a right to stop the gamer from making huge profits off of content from which he or she agreed not to profit.

And the OSP is stuck somewhere in the middle. Although OSPs might be supportive of their content producers, they are also fairly likely to comply with the DMCA to ensure that they are not secondary infringers.

If OSPs typically err on the side of caution, and abide by the take down notice, does this unfairly burden the alleged infringer (e.g. the video gamer) so as to justify just compensation under the Fifth Amendment?

Food for thought.


The purpose of copyright law is to further innovation by affording protection to those who create original works. Therefore, government must be careful to establish a regulatory environment that furthers this goal. Is the effectively mandatory take down a taking? Maybe not. Though one could see how the video gamer could see it another way.

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