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 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.