Villain or Victim? Public Mockery Follows Photographer Suing Instagram

May 3rd, 2016 by Sergio Muñoz Sarmiento

Yes, this takedown procedure puts a lot of power in the hands of individuals to remove content that they allege is infringing without much proof, and often no review from the OSP of whether the use is a “fair use.”(YouTube is now considering working to change this).[7] However, this, theoretically, can be cured by filing a counter-notice that allows the content to be restored within in 10 days. Then it is up to the copyright holder to file suit.

This sometimes goes awry, for example, on YouTube, when content is restored after a counter-notice is filed, but then the YouTube channel loses their view count, or ability to monetize the content after claiming fair use. No system can keep up perfectly with our digital world, but the DMCA is a decent approach that each OSP can (and should) attempt to make even better by diligently reviewing takedown notices, exceptions for fair uses, and ensuring the removed content is actually restored after a counter-notice is filed. It would be refreshing to see these OSPs not only complying with the law but beginning to go a little above and beyond what is required by law. It can only save them money, reputation and time, in the big picture.

Other readers were upset with Reilly for suing because there was no commercial gain by the infringers for posting the image on Instagram, yet Reilly can go after Instagram for statutory damages. The benefit of statutory damages is that, so long as you register your copyright within three months of publication, you don’t have to prove lost profits or actual damages, but may elect statutory damages-that is, damages set by law. Again, not a perfect system, but it can be very difficult to prove actual damages. If a photographer had no access to statutory damages and had to prove actual damages in every case, in order to maintain control over her work, the consequence would be a much more unfair system for creatives. Statutory damages put creatives on more of equal footing and give them the ability to get their attorney’s fees covered.

It feels “wrong” that Reilly is suing Instagram, perhaps, in part, because of the love for what Instagram represents- it’s a free, creative space with no (current) obvious commercial gain- but these OSPs have no other incentive to comply with the law if no one holds their feet to the fire. If irritatingly zealous photographers like Reilly do not step up and show OSPs that some creators will actually take that next step to court, when there is no response to their takedown notice, then the system doesn’t work. Most OSPs assume creators will abandon their takedowns and not file suit against them. If nothing else, after Reilly’s lawsuit, Instagram will make certain they have a quicker response mechanism in place; and that’s a good thing for creators.

Notes:

[1] Van der Sar, Ernesto, “Instagram Sued For Failing to Remove Copyrighted Photo.” Torrent Freak (March 30, 2016).

[2] Woods, Ben, “Instasued: When does protecting your personal copyright turn into trolling?” The Next Web (march 31, 2015).

[3] The “DMCA take down notice” is a creature of Title II of the Digital Millennium Copyright Act (“DMCA”). It added Section 512 to Title 17 of the United States Code (Copyright), which exempts certain online service providers (“OSPs” or sometimes “ISPs”) from liability for copyright infringing acts by its users, provided it meets certain conditions (such as being responsive to copyright holders when given notice of infringement on the network the OSP controls).

[4] N.A. Plagarism Today, “How Long Should a DMCA Notice Take.” (December 5, 2008).

[5] In Section 512(c), it states the providers should work “expeditiously” to remove infringing material after receiving a DMCA no takedown notice. There are no specific number of days required, leaving it up to OSPs to determine what “expeditious” means.

[6] Liu, Ken, “The DMCA Takedown Notice Demystified.” (March 2013).

[7] Gabriel, Brian, “Internet Creators Are Pressuring Youtube to Respect Fair Use Laws.” Cartoon Brew (February 23, 2016).

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