Saturday, October 31, 2020
 

The DMCA: A Year In Review


By Talia Kosh, Esq.

DMCA_Talia_Kosh_ClanccoSince it became law in 1998, the Digital Millennium Copyright Act (DMCA) has become the avenue for content management for copyright holders, but it is also an easily-deployable weapon for anyone who wants to censor content on the Internet. Let’s take a look at how recent developments are shaping content on the web, for better or for worse.

In short, the DMCA protects “online service providers” from copyright lawsuits if they comply with various parts of the DMCA, including swiftly removing potentially infringing content after receiving a takedown notice from the alleged rights holder. It also provides a mechanism for challenging improper takedowns.

In October, 2015, the U.S. Copyright Office and the Librarian of Congress issued a set of exemptions for the DMCA-as it does every three years. These exemptions basically “allow” people to do what they should already have a right to do under the First Amendment. For example, one exemption grants documentary filmmakers a renewed exemption to DMCA, which includes an expansion of authority for breaking encryption and allowing access to content on Blue-ray, for fair use purposes.(1) Also, now we legally can tinker with our tablets, smart watches and car control systems during the holiday season.(2)

Digging in to the most current DMCA conflicts, back in October, 2015, George Orwell’s Estate issued copyright takedown notices to merchandise seller, Cafepress, for a vaguely-worded reference to copyrights owned by the Orwell estate. The Estate ended up taking a lot of heat for their “Big Brother” approach to sending takedown notices to merchants. However, according to the Estate, it was being blamed for a unilateral decision by Cafepress to takedown every single item of merchandise that might reference any intellectual property owned by the Estate, including anything marked with “1984”, the title of Orwell’s novel “1984,” representative of our current surveillance culture.

Bill Hamilton, executor of Orwell’s estate, made a statement: “I asked CafePress to take down material that was in breach of Orwell copyright, and without checking with me which items I was referring to, [they] unilaterally took down everything with any Orwell reference, including T-shirts.”(3) Internet radio host, Josh Hadley, had created t-shirts sold on Cafepress which stated, “1984. It’s already here.” Not the zinger of our century, by any means, (wasn’t 1984 here a long time ago?) he never sold a single shirt, but got caught in Cafepress’ decision to take down all of his merchandise referencing “1984.” Instead of filing a counter-notice, Hadley spoke out on social media and simply began offering for sale his t-shirts on his own website. In this case, a great cost was incurred by the brand and reputation of the Estate by sending out a single takedown notice, risking the service provider taking down everything that might infringe on a holder’s intellectual property. Regardless of the facts, there is a social cost of the entire world thinking that the Estate has lost touch with the value of Orwell’s works. Not going too far down the rabbit hole, Orwell resided and died in the United Kingdom, where there is no right of publicity, so the initial letter the Estate sent regarding misappropriation of Orwell’s image would also be an improper use of a takedown notice.

With regard to the Estate’s takedown notice, it was insufficient, and therefore, Cafepress should have only removed materials referenced in the takedown notice. Takedown notices must specifically reference how the merchandise is infringing.(4) The Estate never referenced any of Hadley’s merchandise in their takedown. Further, this would not be a copyright infringement, which does not protect titles and slogans-it would be a Trademark infringement, if anything. But even there, the protection for trademark infringement on “1984” would be narrow. Although, Taylor Swift might argue differently in registering her “1989” trademark in several different categories of goods and services. Further, since Hadley was commenting on the original material itself and making a critique or criticism that  “it is already here” this could be considered fair use. However, the fear of being sued will outweigh an ISP ‘s interest in conducting a proper review of takedown notices and content. Second, even so, Hadley could have easily responded with a counter-notice, where Cafepress would restore his content within 10-14 days.

The Counter-Notice Process

It does not appear that Hadley ever filed a counter-notice, which would have ultimately (and theoretically) made Cafepress reinstate his content if suit was not filed within 10-14 days of the counter-notice. If you have been improperly accused of infringement, first check the terms of service for that particular ISP to determine what their process is for filing a counter notice. However, your counter notice should contain the following:

(1) Contact info and signature of the subscriber; (2)Identification and location of the material that has been removed or disabled; (3)a statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled; (4) a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification.

The ContentID Monster

In the case of YouTube’s copyright framework, there is yet another layer of confusion and frustration-that of their internal automated ContentID system that applies copyright flag to YouTube accounts, separate and apart from the DMCA copyright takedown notice procedure. YouTube does not do much to educate users about how the takedown notice differs from a ContentID flag and appeal process. In YouTube’s words, “Videos uploaded to YouTube are scanned against a database of files that have been submitted to us by content owners. Copyright owners get to decide what happens when content in a video on YouTube matches a work they own. When this happens, the video gets a Content ID claim.”(5) But qualifying as a content manager who “gets to decide” is no small feat-you must hold a “substantial” body of work. Most applications for content management are rejected without explanation. It’s basically a secret club where you have to be a media conglomerate to get a key. The Content ID automatically allows ContentID managers to redirect monetization to the alleged rights holder. If content managers improperly claim copyright, livelihoods of smaller content creators can easily be affected by this ContentID system -and even if the copyright claim is on a tiny portion of the video, or used in fair use, the entire video can be affected and flagged. ContentID makes mistakes all of the time, and there are also many questionable claims, such as that of the dancing baby case.(6)

If Content ID flags your video and this flag is not legitimate, you should dispute the claim. If your dispute fails then you may appeal the ContentID flag. The Content manager then must submit a proper DMCA Takedown Notice to deny your appeal. When a Content Manager denies your appeal, you will get a strike against you on your YouTube account and your entire video will be removed, your account will no longer be in good standing and you can lose monetization privileges. You can remove a strike by submitting a counter-notice under the DMCA. If the Content Manger does not file a lawsuit in federal court within 14 business days from your counter-notice, then YouTube must restore video.(7)  However, this doesn’t always happen. The other problem with Youtube takedowns, however, is that once the content is removed for a video with a lot of views, even after reinstatement, your view numbers will not necessarily get reinstated. As Electronic Frontier Foundation notes, “in many instances, even if you successfully submit a DMCA counter-notice, the video will not be reinstated.(8)

So, with this in mind, we come to the “Dancing Baby Case.”(9) As a reminder, Lenz uploaded a 29 second video of her children dancing to Prince’s “Let’s Go Crazy.” Universal did not consider whether this was an incidental and fair use prior to sending a takedown notice. Lenz sued for declaratory relief. The Ninth Circuit ruled that copyright holders like Universal must consider fair use before trying to remove content from the Internet. The court focused on the requirement that Universal had to sign that under perjury of law it had a good faith belief this use was not authorized. Universal argued, unsuccessfully, that fair use is not a use “authorized by law,” but rather a defense to an unauthorized use. The court disagreed and found that fair use is a use “authorized by the law,” which is kind of a big deal. The court also rejected Universal’s claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss. Media conglomerates will definitely be looking at all this differently as all of them run algorithms to capture unauthorized uses and often automatically flag accounts or send out letters. Now someone will have to look at these and determine whether there is a subjective fair use reason-until they create a program that can determine fair use. If they had at least analyzed fair use, Universal would not have been in violation. Again, how worth it was it for Universal to have this much bad publicity over a dancing baby with a  bad recording of a Prince song in the background that is barely recognizeable?

So then, what do you know, Youtube recently changed its tune and Google has announced that it will promise to pay the legal fees (up to $1 million) of certain YouTubers where takedowns have been issued in cases where YouTube agrees that fair use applies.(10) YouTube states,“we are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.”(11) Overtime, this could be a very good thing for the YouTube community to begin to develop its own best practices so that creators can better understand and develop fair use guidelines.

However, a far more effective (and simpler) change would be for YouTube to remove the immediate monetary reward for a false claim, so that instead of the ad money being diverted to the claimant and never recovered by the creator, the ad monies could be held in escrow until the matter is resolved.

There are always DMCA takedowns that are used as a censorship tool, as in the case of the Ashley Madison affair, pun intended. After cheating website, Ashley Madison, was hacked and members’ names were exposed, Ashley Madison sent out  DMCA takedown notices claiming to own the copyright on the stolen data that CheckAshleyMadison.com and other tools were using to search these hacked names.(12) This is kind of a stretch, as we know from early copyright cases that data or “facts” are not covered by copyright.(13) The owners of CheckAshleyMadison.com told Gizmodo that they “felt that it was best to play it safe and comply with their wishes,” so they took the site down.(14) I’m sure members were relieved, and this was a landmine waiting to go off, but there are many examples like this of takedowns being effective censorship tool. When lawmakers are rapidly moving towards expanding the reach and strength of the DMCA, the real threats of censorship must also be considered.

So, to sum up, often the fear of litigation that follows DMCA takedowns are more of a guiding force for controlling behavior than are facts or the law around creator’s rights. The complexities of the law lend itself to erring on the side of not wanting to be sued.  Does this system promote the progress of science and useful arts, as intended? For those that receive DMCA takedowns,  analyze them and respond to them if they are improper, I believe it still can.

Notes:

1See “DMCA exemption victory for Documentary Filmmakers.” www.kartemquin.com. Kartemquin Films. October 25, 2015.

2 Thomson, Lain, “New DMCA rules mean you can fiddle with your tablets, routers, cars (as if you weren’t anyway.” www.theregister.co.uk. The Register. October 28, 2015.

3 Flood, Alison, “George Orwell’s estate denies ‘Big Brother values’ after challenge to 1984 merchandise.” www.theguardian.com. The Guardian. October, 2015.

4 See Van der Sar, Ernesto, “Orwell Estate Sends Copyright Takedown Over the Number 1984.”www.torrentfrek.com. Torrent Freak. October 2015.

5 “How ContentID Works.” www.youtube.com. YouTube.

6 Lenz v. Universal Music Corp. et al., Case Nos. 13-16106, -16107 (9th Cir.., Sept 14, 2015.

7 17 U.S.C. Section 512(g)(2)(C). Stephen McArthur, “How to Beat a YoTube ContentID Copyright Claim-What Every Gamer and MCN Should Know” www.gamasutra.com. Gama Sutra. June 24, 2014.

8 See”A Guide to YouTube Removals.” www.eff.org. Electronic Frontier Foundation. ?

9 Lenz v. Universal Music Corp. et al., Case Nos. 13-16106, -16107 (9th Cir.., Sept 14, 2015.

10 Hern, Alex. “YouTube plans to defend filmmakers against copyright claims.” www.theguardian.com. The Guardian.  November 23, 2015.

11 Heilman, Dan, “Google Vows to Protect YouTube Videos’ Right to Faiir Use.” www.newsfactor.com. Newsfactor. November 22, 2015. 

12 Stoltz, Mitch, “Ashley Madison’s Onwers Give In to Temptation to Misueses the DMCA.” www.eff.org. Electronic Frontier Foundations. August 24, 2015. 

13 Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).

14 Estes, Adam Clark, “Ashley Madison Is Sending Out Bogus DMCA Takedown Notices.: gizmodo.com. Gizmodo. August 20, 2015.


***

Talia Kosh holds a J.D. from Loyola University New Orleans College of Law and an LLM. in International Law from American University. Talia practices law in Santa Fe with The Bennett Law Group and is Founder and President of New Mexico Lawyers for the Arts, counseling and educating artists on a wide variety of legal issues. Talia also serves on several nonprofit boards, as well as the Governor’s Counsel of Film and Media Industries, and as past Chair and board member of the Intellectual Property Section of the New Mexico Bar . Talia also teaches at Santa Fe Community College and University of New Mexico’s Continuing Education Program. She received the Santa Fe Mayor’s Award for Excellence in the Arts in 2014. The views expressed by Talia are hers and not those of any entity and/or organization.

 

 

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