The DMCA: A Year In Review
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)
Page 2 of 4 | Previous page | Next page