Tortious Interference Preempted by DMCA

In New York, counterclaims for tortious interference with contract is preempted by a properly filed take-down notice under the Digital Millennium Copyright Act (“DMCA”)

Often when a plaintiff asserts copyright claims against a third-party, the defendant will likely assert a counterclaim for tortious interference with contract.  In New York, a counterclaim counterclaim for tortious interference  with contract based on a properly filed "take-down" notice under the Digital Millennium Copyright Act ("DMCA") is preempted.  Section 512 of the DMCA, among other things, limits liability for copyright infringement by creating safe harbors for providers that follow certain detailed procedures in response to a party's good-faith assertion of copyright infringement.  This take-down notice procedure allows those who believe a website operator is hosting material that may infringe upon their copyright to submit a formal take-down notice the website operator alleging infringement.  The alleged infringer may then submit a "counter notification."  Several other courts have also held that the remedial provisions of the DMCA preempt state tortious interference with contract claims based on allegedly wrongful use of the DMCA takedown notice.