Protecting Your Copyrights Online Without Losing Control of the Narrative

Takedown Requests: A Tool for Protecting Copyrights Online

Understanding the Colbert case requires to first understand the tool used by Paramount/CBS: the notice and takedown measure set forth in Section 512 of the Digital Millennium Copyright Act, codified at 17 U.S.C. § 512. This mechanism allows the owner of copyrighted material to quickly request that a platform remove unauthorized content without having to immediately initiate a lengthy and costly lawsuit. 

How Does a Takedown Request Work? 

The process provided for by the DMCA is intentionally simple. The rights holder must file a notice identifying the copyrighted work, the content to be removed, and its location. The rights holder is also required to state in good faith that the disputed content's use is not authorized by the copyright owner, its agent, or the law, and to confirm that they are authorized to act on behalf of the copyright owner. Once this notice is received, there is a strong incentive for the platform to act. By removing the content targeted by the takedown request and complying with the applicable conditions, the platform sharing the potentially infringing content can limit its liability for the infringing content shared by its users and limit injunction proceedings that may be brought against it. 

However, bear in mind that the process relies mostly on a formal good-faith declaration and a prompt response from the platform rather than on a full prior verification. Even though the rights holder must consider legally permitted uses prior to filing a takedown request (SOURCE: Lenz v. Universal Music Corp, 801 F.3d 1126 (9th Cir. 2015)), their good faith is assessed on a subjective basis. What matters is the rights holder’s genuine belief, regardless of whether that belief proves to be incorrect in the end (SOURCE: Rossi v. Motion Picture Association of America, Inc., 391 F.3d 1000 (9th Cir. 2004)). While this is what makes the process efficient, it is also what can make it vulnerable. 

Why Do Online Platforms Respond So Quickly to Takedown Requests? 

Practically speaking, online platforms like YouTube generally have no incentive to conduct a thorough legal analysis of every request. They operate on a scale where millions of clips are continuously uploaded, monetized, and disputed, as shown by YouTube’s copyright management tools. In this context, if you follow the logic outlined by the U.S. Copyright Office, removing the content outright is often simpler, cheaper, and less risky than carrying out a detailed analysis of rights ownership, alleged infringement, applicable licenses, or potential fair use. 

In other words, the notice and takedown measure is not just a rule of law. It actually acts as a flag for potential risk that is sent to a digital platform, prompting it to act quickly. 

When Copyright Becomes a Content Management Tool 

This is where technology takes centre stage. Online platforms do not manage takedown notices independently. They incorporate them into processing policies, detection systems, and automated tools for blocking, demonetization, or removal. On a large scale, copyright is enforced through a technical infrastructure. 

This automation does not mean that every decision is made by a computer, but it does change the nature of the system. Removal becomes quick, standardized, and often focused on risk management. Platforms do not necessarily seek to make a perfect determination of who is right on the merits, as recognized by the U.S. Copyright Office itself. Instead, they primarily seek ways to reduce their exposure, comply with their policies, and maintain systems able to handle a massive number of claims. 

Content Removal as a Strategic Tool 

For rights holders, this can be an important strategic tool. A takedown notice can be used not only to protect a work but also to redirect web traffic to an official publication, prevent out-of-context clips from being shared, or even try to regain control over an unauthorized broadcast or a story that’s getting out of hand. As such, the DMCA process can become a useful tool for content management, provided it is legally sound and not used merely as a pretext for censorship, like in the case of Online Policy Group v Diebold Inc (Online Policy Group v Diebold Inc, 337 F Supp (2d) 1195 (ND Cal 2004)). 

Yet this same tool can have consequences beyond copyright protection. In today’s digital landscape, removing content can have immediate and potentially irreversible effects. On YouTube, TikTok, or Instagram, removing a video means more than just stopping an allegedly unauthorized reproduction. It also means curbing its virality, affecting its algorithmic discoverability, and thus limiting its ability to fuel public conversation. 

In this context, it becomes harder to draw a clear line between the exercise of copyright and narrative control. When takedowns are fast, inexpensive, standardized, and sometimes automated, they become highly effective tools for drastically reducing the visibility of sensitive content, sometimes even before a full contextual analysis has been carried out. Not only does this influence what stays online, but also how a story is told, retold, and perceived by the public. A takedown notice can therefore quickly be seen as an attempt to limit the spread of embarrassing, media sensitive, or already viral content. 

The Stephen Colbert Case: Between Copyright Protection and Narrative Control 

The Colbert case is a striking example of this. Only in Monroe, a public access program broadcast by a local Michigan station, is meant to be freely available to the public. The public therefore expects its content to be widely viewed, discussed, and shared. However, this does not mean it can be freely reproduced or that copyright disappears. Paramount/CBS has, in fact, stated that the specific episode featuring Colbert was funded and produced by CBS Studios and approved for broadcast on certain official channels only. This explains why the takedown requests made by Paramount/CBS were questioned and criticized. They were perceived by some observers not only as an enforcement of rights, but also as an attempt to limit the circulation of embarrassing, media sensitive, or already viral content. 

This is where the DMCA can become a content management tool, provided it is based on a valid legal foundation and used with a firm grasp of its technological, media, and reputational implications. 

Reputational Risks of Removal Requests 

The Colbert case shows that copyright enforcement never occurs in a vacuum. Even when a company believes it has valid legal grounds to request the removal of content, public perception can quickly turn a protective measure into a public relations crisis. 

This is why using the DMCA can be tricky for companies. Removal may be legally justified, yet not necessarily the best strategic decision. Before sending a notice, a company must assess not only the legal validity of its claim, but also the media context, the type of content, the risk of drawing further attention to the removed content, the platform’s likely response, public sensitivity, and the potential impact on its reputation. 

The same logic holds true for companies receiving, managing, or challenging takedown notices. Knowing whether content is protected by copyright is not enough. It is essential to understand how the platform will handle the request, what deadlines apply, what remedies are available, whether a counter-notice is advisable, and how to coordinate the legal strategy with communications, public relations, and business goals. 

Key Findings

• Takedown notices are more than just legal formalities. In today’s digital landscape, they are also a matter of business, communication, and risk management. 
• For a rights holder, the takedown process can quickly halt unauthorized distribution, preserve a release window, redirect users to an official channel, or prevent the spread of out-of-context or controversial material. When used correctly, a takedown notice can be an effective tool for protecting and managing online content. 
• However, this effectiveness comes with risks. A takedown notice may be legally sound yet still be poorly received. If the targeted content is sensitive, viral, or culturally charged, the takedown may be perceived as an attempt to control the narrative, or even as a form of corporate censorship. The company may then lose control of the very message it sought to manage. 
• The same caution applies to companies receiving or managing takedown notices. The consequences of a takedown on users, partners, or the public must be fully understood. 

Before taking action, a company should therefore ask itself:  

• Do we have the rights? 
• What is our goal?  
• How will the platform react?  
• Is there an alternate solution (licensing, public communication, or no action) 
• What effect will the takedown have on the content’s visibility, and how will it be perceived by the public? 

The right approach is therefore one that is not only legal but also strategic. A takedown notice should be assessed at the intersection of copyright, platform rules, technology, communications, and reputation. In some cases, a takedown will be the best option. In others, a licence, a request for attribution, demonetization, targeted blocking, a public statement, or even inaction will be more appropriate. 

So the question is no longer just whether a takedown notice can be sent from a legal standpoint. Consideration must also be given to the advisability of sending it, how the platform will handle it, and how it might affect business, technology, and reputation. 

Are you looking to assess the risks associated with a takedown request or to develop a strategy tailored to your situation? Feel free to contact Karl Bissonnette, one of BCF’s Technology and Artificial Intelligence lawyers.