This is a case where IO Group, the maker of adult entertainment videos, sued Veoh, a YouTube-like online video site, for hosting IO’s content (uploaded by Veoh's users) without the company’s consent. But instead of sending Veoh a takedown notice, IO directly sued Veoh in the US District Court. Veoh claimed it was protected by the safe harbor provisions of the DMCA, and asked for the case to be dismissed. The judge denied IO’s request for summary judgment, determining that Veoh qualified for the protection of safe harbor. The case is interesting because it deals with what happens when a copyright holder is so unsatisfied with the amount of work that a service provider does to prevent infringement that is skips the notice and takedown procedure all together. IO believed that Veoh’s policies were inadequate and needed to be more proactive in preventing repeat offenders from creating multiple accounts and continuing to upload infringing content. The Judge disagreed with this notion, and ruled that a “policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement.”
IO’s claim in this case will be an example of an extreme view in the notice and takedown debate. While I will likely be arguing for a reform of the procedure outlined in Section 512 because it is too easily abused, IO thought the process was so insufficient as to not even use it, and instead sought immediate relief in court. The judge’s affirmation that Veoh had properly followed the law and that it did not need to take additional preventative measures to stop the infringement represents a blow to copyright holders who think the notice and takedown provision of the DMCA does not go far enough. While many think that notice and takedown system fails because it is too heavy handed, IO believes the opposite. Even though they lost, it is still worthwhile to discuss their alternative opinion, which will provide a sense of balance to the paper.
This source linked is only McCain - Palin’s initial correspondence to YouTube. YouTube’s response can be viewed here:
This letter by the McCain campaign expresses former presidential candidate’s displeasure with YouTube over questionable infringement claims made by the national news media. After the campaign created advertisements using well known video clips from national media sources and uploaded them to YouTube, news organizations like CBS sent YouTube DMCA takedown notices for hosting videos that they believed infringed on their copyright. Central to their claim was the fact that they did not want their videos and personalities to be seen as endorsing one candidate or another. YouTube promptly removed the videos, which drew the ire of the McCain campaign. Even though YouTube was properly following DMCA protocol, McCain lamented that the process would take too long to be resolved (between 10 and 14 days), and asserted that YouTube should make a fair use judgment itself before removing the video. McCain asked for special treatment, allowing for videos uploading by the official candidates’ campaigns to be looked at differently when receiving takedown notices. In YouTube’s response, the video host declined these requests claiming that it was simply following the procedure laid out in the DMCA to protect its safe harbor status, and that they could not discriminate between uploaders. A McCain representative asserted that the DMCA does not necessarily define with what specific speed a host must comply with a takedown notice, and responding automatically is not mandated.
This situation provides one of the central examples I will use in my paper. McCain’s difficulties with the intricacies of the DMCA provide a high profile example of how certain provisions can be abused. It is particularly valuable because even though the correspondence is between the McCain campaign and YouTube, both organizations are effectively complaining about the takedown and notice process, albeit to different degrees. Even as YouTube says it is simply following protocol, it criticizes those who abuse the takedown process. Meanwhile, the McCain campaign reiterates the problems many see in the lack of timely recourse alleged infringers have in the process.
This article from the California Law Review attempts to highlight the legal difference between notice and knowledge regarding cases of infringement. When Section 512 of the DMCA was written, Congress intentionally did not make service providers directly liability for infringing material, anticipating that this would burden providers and slow growth of the internet. In creating the notice and takedown procedure, Congress wanted to create a system where notices would be sent to inform of “potential liability” in order to spark an investigation by the service provider – not simply demanding the removal of the material. The author says that because service providers have conflated the actual notice of potentially infringing material with the knowledge that the material is infringing, they have become prone to removing the material immediately, fearing that they will be sued for contributory copyright infringement. The author does not believe that the receipt of a notice is equivalent to outright knowledge of infringement, and is not sufficient to put the service provider at risk. The author also remarks that because the service provider is ultimately concern with its legal risk, this practice “poses serious First Amendment issues.”
The confusion surrounding when a service provider becomes liable itself will be an important factor in my paper. In trying to prove that the DMCA’s notice and takedown provision has been manipulated and abused, this article pointing out the origins of the problem will be essential. On a fundamental level, the misinterpretation of what a takedown notice actually means and its conflation with actual knowledge of infringement represents a systematic problem, one that while not anticipated has developed over time. Using this insight into what the initial Congressional intentions were and how those desires were not necessarily manifested in the law that was passed is a very important way to support my thesis.
This paper was written by researchers at the University of Washington, and explores the difficulties associated with monitoring P2P file sharing networks for copyright infringement, and how the notice and takedown procedure is affected. Two experiments were conducted, one in August 2007 and a second in May 2008, where researches intentionally implicated their own University controlled IP addresses in BitTorrent activity, but without any uploading or downloading of copyright infringing material. As a result, the researchers received a variety of takedown notices from the music and movie industries – over 400 false positives between the two experiments. Additionally, they were able to maliciously implicate other IP addresses in their experimentation, heavily suggesting that independent third parties without any connection to possible copyright infringing activity could receive takedown notices. To demonstrate the ridiculousness of this, the researchers were able to get multiple takedown notices sent to the IP address of a networked printer, incapable of copyright infringement via BitTorrent. They found that indirect monitoring of BitTorrent and other P2P networks, while less costly and resource intensive, is much less accurate than direct monitoring and results in the numerous amount of false claims. The current methods used to monitor these networks are highly inconclusive of whether actual infringement is taking place.
This paper is a great resource in that it takes no sides in the forthcoming “arms race” between infringers and monitors, but rather surveys the current landscape and makes determinations about the effectiveness of the strategies. While not offering an opinion on the fair use or protected speech implications, it illustrates how takedown notices are issued without extensive care. To receive a notice when no uploading or downloading of an infringing file has occurred, or even worse, when a person is arbitrarily and incorrectly framed for being involved in using BitTorrent, exemplifies the failures of the current system. Anecdotally speaking, the example of the printer receiving a takedown notice for downloading an illegal file is specifically poignant.
This column by Quinn Norton offers a criticism of people and organizations that improperly use the notice and takedown system not to primarily protect their intellectual property, but rather to stifle free speech and bad publicity. Her contention is that using intellectual property law as a public relations vehicle in inherently inappropriate and not a proper use of the DMCA. The first example cited is the case of Diebold, the infamous maker of electronic voting machines, where internal memorandums acknowledging machine malfunction were leaked onto the internet, contradicting the public statements by the company. Instead of coming clean about the failures and admitting that it had originally mislead, the company tried to eradicate the documents from the web, attempting to cover up the evidence instead of confronting it. Using Section 512 of the DMCA, Diebold sent notice and takedown letters to all sources it could find that were hosting the documents. Similar anecdotes about Scientology, Jehovah’s Witnesses, and radio host Michael Savage all evidence the practice of using the DMCA to silence critics.
Norton’s column is important to my paper because of her simple and succinct conclusion that the takedown process is “a weak way to shut people up.” Her examples provide relatable, real-world examples about how free speech can be put down via notice and takedown, but what I take away from the article is her overriding message that a perversion of copyright is not an acceptable way to achieve an end. Her personal experience and perspective help me create a diversity of sources, and balances out some of the more numerically based evidence.
This study was conducted in 2006 by Jennifer M. Urban and Lauren Quilter, surveying the effects of Section 512 of the Digital Millennium Copyright Act on the Internet. The two used an empirical approach to look at the notice and takedown landscape, and collected data about the number and type of notices that were sent in recent years. Google provided all the notices the company had received between 2002 and 2005 (constituting the majority of the data), with non-trivial supplements coming from the Chilling Effects Clearinghouse. The researchers were careful to point out a variety of issues with the data set, including a potential bias in the Chilling Effect notices, since these were self-reported cases. The Google information also is flawed to a degree, since notices sent to a search engine like Google are not necessarily emblematic of the entire notice and takedown climate. This is displayed by a discrepancy between the data and common perception, with music and movie companies accounting for few of the takedown notices, since they find it more useful sending takedown notices to non-search engines. Acknowledging the need for additional data and further research, the study concluded that there a large number of claims had serious substantive questions. While anticipating some notices to be unjustifiable, the high number of problematic notices that were found was “particularly troubling.” Since the researchers used a high threshold of what would be considered questionable (choosing to use cases where fair use only could likely be used as a proper defense) the results are even more severe than first appear. Even so, enough claims were made without sufficient justification or sometimes without any at all (claims regarding material which are not subject to copyright) for the study to conclude that the “implications for expression on the Internet of this extrajudicial process appear, from our limited data, significant.”
This is going to be very helpful in my paper, since it will be one of the few but important statistical analyses I use. Many of the other works are theoretical expositions by professors and academics, citing specific cases and expanding out the reasoning to apply to more generic cases. However, this study uses nearly 1,000 data points to arrive at its significant conclusions that will aid me in my argument. Most importantly, I will reference the high rate of improper claims, representing the low barrier to entry to submit even a fraudulent claim, and its negative impact on free speech on the internet.
In this article, Paul Alan Levy echoes the calls by some to combat abuse of the DMCA notice and takedown system by shaming those who make illegitimate claims and the others who needlessly comply, as well as take possible legal action against them. Levy also argues that the better approach would be to reform the DMCA itself, especially since both the McCain and Obama had problems with the system, and both would be a position to change the law regardless of the election outcome. He proposes 5 specific changes in the DMCA. The first would be to allow ISPs and service providers to not effectively be required to immediately takedown allegedly infringing material, while still maintaining safe harbor status. Secondly, he proposes making it easier for people who receive bogus takedown claims to receive compensation via statutory damages, presumably deterring copyright holders from filing false claims. He also suggests notification by the service provider to the possible infringer before the content is removed, as well as requiring takedown notices to be submitted to a public database for viewing. Finally, Levy argues for all intellectual property types to be protected, not just copyright. His agenda is put forth at a time when both potential presidents, having felt the negative effects of the DMCA, may be more motivated to remedy it.
This article is extremely beneficial in that it outlines a significant number of ways to amend the DMCA and resolve the current notice and takedown problem. His position is not explicitly based in anger, aggravation, or retribution, and offers a clear list of ways to fix a broken system. I will primarily use this article to offer constructive remedies to the problem I plan to expose. Particularly, his suggestion to allow the service provider to notify the alleged infringer prior to the content being removed, while simultaneously not surrendering its safe harbor status, is a proposal not without flaws, but could possibly be an important part of the recommendations I make to fix the system.
This legal analysis by Fred Von Lohmann of the Electronic Frontier Foundation is empathetic of the McCain campaign’s fair use/YouTube problem, as the EFF has been championing internet freedom and fair use principles for many years. However, he is highly critical of McCain proposed solution, which would put the burden on YouTube to conduct legal reviews of videos posted by political candidates that receive takedown notices. He thinks this notion is backwards, since in terms of political speech, amateur commentators are the ones that need special protection from phony takedowns. Despite the failings of the McCain proposal, he goes on to identify the true problem in these situations: the news media organizations. He believes it is their responsibility to refrain from sending bogus takedown notices for legitimate fair uses. As for a recommended response by the public when they don’t, he encourages public shaming of the companies, as well as potential lawsuits for submitting a takedown they knew was illegitimate. He also supports the claim made by the McCain campaign that it is not incumbent upon YouTube to follow this strict procedure in the case of fair use, which YouTube itself could reasonably determine with human intervention.
Lohman’s analysis will be useful in that it finds fault with all parties involved in the process: the alleged infringers, the copyright holders, and the host. He also puts forth a compelling reason why McCain’s solution would not be ideal from a societal point of view. The actual reason McCain’s proposal was rejected was because YouTube said that their hands were tied in the process; Lohman says that even if YouTube could treat politician's videos differently, they still shouldn’t. The author is transparent in placing most of the blame on the news organizations themselves. Other articles refrain from making the obvious claim that if it weren’t for the media foolishly asserting a broad claim to copyright, this wouldn’t be a problem. Finally, he corroborates the assertion made by the McCain campaign that YouTube does not necessarily need to act with as much immediate speed as it says it does.
This policy paper from the Brennan Center for Justice sought to determine how strong the fair use doctrine remains in the digital age. For the section analyzing the role notice and takedown plays, the catalog of 2004 letters received by Chilling Effects Clearinghouse was used as the data set. To determine issues concerning fair use and the First Amendment, a subset of 153 letters was used. The authors mentioned that it is more likely than not that this data sample under represented possible speech-suppressing efforts because only those people knowledgeable enough to submit their letters to Chilling Effects were included. With this in mind, the complaints were split into strong, reasonable, possible, and weak fair use claims. The results were described as “troubling,” with the combination of the accusers who had only a weak claim to copyright and the alleged infringers who had a strong claim to fair use amounting to 20% of all claims. Another 27% of claims fit into the category where there were possible fair use defenses. In total, the author puts forth that almost one in two takedown notices had the potential of improperly hindering free expression. The study is important because it concludes that censorship power is put “in the hand of the IP owners.”
Although a likely assumption, this study demonstrates the correlation between strength of the fair use defense and removal of allegedly infringing material. Naturally, the more substantive the fair use/First Amendment claim, the more likely the alleged infringing content would remain online. I will possibly use this in support of the idea that the notice and takedown system is not as reckless and arbitrary as some would claim. However, I will also be sure to point out that even in cases of strong fair use, there was a significant occurrence of free-speech suppression, with over 40% of material either partially or entirely removed.
This order from the US District Court for Northern California rejects Universal Music Group’s request to dismiss the lawsuit against the music company by Stephanie Lenz. Months after posting a clip of her son dancing to a Prince song to YouTube, Universal asked the video host to remove the clip, claiming she was infringing their copyright of the song “Let’s Go Crazy.” Following the procedure under the DMCA, Lenz told YouTube that her video was legal, and it was restored – Universal did not pursue legal action against Lenz since her use was clearly fair. However, in conjunction with the EFF, Lenz sued Universal for acting in bad faith, and asked for compensation covering her legal costs. She alleged that Universal specifically did not “belie[ve] that [Lenz] actually infringed a copyright,” and that its takedown request was entirely improper. This order covers the most recent development, with Judge Jeremy Fogel refusing to dismiss the lawsuit as Universal wanted, and declaring that copyright holders must take fair use into account before issuing DMCA takedown notices. Universal had argued that it was not incumbent on copyright holders to consider a potential fair use defense, and that doing so would be costly and disruptive. The Judge rejected this argument, and while admitting that he did not believe it to be likely that Lenz could eventually win the lawsuit against Universal, still allowed it to progress nonetheless.
Fogel’s decision is going to play a big role in my paper, as this order sets precedent for other courts to look fair use at when determining takedown-abuse cases. The decision is unique in that it helps define what a copyright holder must do to clear the “materially misrepresents” hurdle set in Section 512, adding consideration of fair use. Previously, it could have been possible for copyright holders to more recklessly send takedown notices to service providers, and make a credible claim that they were not active in misrepresenting since a limited (and undefined) amount of care was given to the process. With the addition of fair use, the burden is higher, which I will argue is beneficial to the takedown process. Despite the judge’s assurances that adding a fair use component will not add a tremendous amount of complexity to the process, it will also be worth mentioning how many people disagree with this claim, believing that the four factor test for determining fair use is inherently nebulous and difficult to use.