When there is copyright infringement probably an attorney's first thought is to file a takedown notice.
The DMCA has done a lot for copyright holders in terms of making it easy to protect their rights. The process is well known to any corporate counsel whose company owns at least one copyright.
What if automatically filing a takedown is the wrong idea?
In terms of intellectual property, sometimes you have to protect what you own but not in all cases.
The rule of 'defend it or lose it' applies for trademarks but it isn't required for copyrights. At this point, the law protects your copyrights effectively until they expire or you give them away.
The instinct is still to file a takedown when copyright infringement happens. After all, most infringers understand that what they're doing is wrong.
But not all of them are profiting off your client's copyrights.
With the speed and ubiquity of Internet communication takedown notices are public news and they can mean fallout from bad publicity. The amount you lose from the infringement may be less than what you lose from the negative public reaction.
In many cases, users upload infringing content to YouTube but don't profit off of it. Those actions alert customers to your copyrighted material without necessarily decreasing your profit.
This of course depends on whether the infringement affects your branding strategy, takes away customers, or has another negative impact.
But it is worth considering whether that is always the right call for your client.
Copyright takedown notices are a great tool for any attorney that deals with intellectual property but they can also prevent creative thinking. Running on automatic pilot doesn't do any service to your client.
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