IO is a company that holds and owns a number of registered copyrighted for a variety of adult entertainment products.  IO alleged that it found its own copyrighted clips from IO films on the Veoh website.  None of the alleged clips contained copyright notices except one.  Veoh is a site that relies on content contributed by users. Veoh is similar to a site like YouTube.  IO made the case that Veoh had to break protection codes to upload videos into the Flash format that the site uses.  By doing this, IO argued that Veoh became a direct infringer. 

The judge determined that Veoh was still protected by the safe harbor provisions.  Veoh does not actively oversee the uploading of content.  Veoh has an established system where the software reformats user content automatically once uploaded.  The system makes the content accessible immediately to other users.  Veoh has default parameters for the submission of content by a third party.  The automated system is started with the Veoh user.  Everything is put into motion with the user.  Veoh does not preview videos before they are uploaded.  The uploading is due completely to the users.  The court gave a summary judgment for Veoh.  Based on the DMCA, the judge said that Veoh was in fact protected by the Safe Harbor Provision, and the site complied with the statutes.   

The key detail about this case is that IO did not send any takedown notices.  This is critical to my thesis that there is a severe violation and abuse of power.  IO did not even follow proper procedures.  There was no take down notice sent.  Instead, IO went straight to court.  The notice and take down course of action was completely skipped.  Instead of stopping piracy, the DMCA in this case ended up limited consumer choices for a period of time.  The videos were taken down and  content made unavailable.

This is a public policy report that offers important research for my paper.  It discusses how “free” expression really is in this new age with strict copyright control like the DMCA.  The Brennan Center for Justice conducted a research project in 2004.  The objective of the project was to see how the people, artists and scholars, directly affected by fair use were dealing with it.  These are the people who make significant contributions to culture and will definitely be affected by an amendment like the DMCA.  The Brennan Center used interviews, online surveys, focus group discourse, and most importantly, an analysis of about 153 of 300 take down letters.  The most interesting to me and the method that I plan to discuss in my paper is the analysis of the take down notices.  The 153 notices were aimed at materials that were actually fair use or had a weak IP claims.  

The research showed a strong positive correlation between the strength of fair use claim and the likelihood that the material would be removed.  There was also a troubling finding that even when there were weak IP claims, more than half of trademarked words or phrases were removed.  Even though it was fair use, the weak IP claims won.  Overall, the take down notices really are distinctly violating the first amendment. 

The other methods, interviews, online surveys, and focus group discussion found two common, major themes.  The research project found that there is a great deal of confusion about fair use and the DMCA.  Also, there is an enormous need for a legal support base to deal with gatekeepers.  The paper suggests possible improvements: a clearinghouse for information like how to reply to take down notices, legal support base, and decreases to the penalties.

I plan to use this paper’s research to support my claims 

1. People have inadequate knowledge about DMCA, fair use, and their first amendment rights

2. Gatekeepers are abusing take down notice rights

3. How effective are the take down notices at eliminating copyright infringement? 

4. Who are the innocent bystanders being caught up by the take down notices?

    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 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 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.