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 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 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 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.