ABA Journal's "Copyright in the Age of YouTube": C&C's first fisking!

The February 2009 edition of the ABA Journal has a long article by attorney Steven Seidenberg titled "Copyright in the Age of YouTube." (He could have cut to the chase and called it "C&C bait"!) There's a lot of interesting and accurate information in Seidenberg's piece, and I do commend him for his effort at a fair and accurate account of the current state of legal play in the web video world. Nonetheless, I think he gets some significant things wrong. Thus, C&C's first fisking. Here goes:

Seidenberg writes of the Lenz v. Universal suit over Universal Music Group's DMCA notice to YouTube regarding a video of a baby dancing to Prince's "Let's Go Crazy":

This clip, however, drew the ire of the world’s largest music company—Universal Music Group—whose international operations garnered more than $6.9 billion in 2007.

"Drew the ire"? Frankly, I doubt anyone at UMG actually had any ire -- at least before Ms. Lenz and her pals at EFF sued! As far as I'm aware, UMG hasn't offered a detailed account of what led it to issue the takedown notice. My own strong suspicion is that it was either a mistake, or was done as a result of some sort of automated search, without adequate human review (which is a type of mistake in itself). But I think it's extremely unlikely that some UMG lawyer or exec saw the dancing baby video and screamed, "Dammit! Get that infringing piece of *&#$(@* off YouTube this second!" In fact, I bet the ire inside UMG is directed at whoever approved the takedown.

On June 4, 2007, Universal sent YouTube a takedown notice pursuant to the Digital Millennium Copy­right Act, asserting that the home movie of Holden infringed the multinational’s copyrights in Prince’s song.

Well, that's Lenz's (and her attorneys at EFF's) position. But Seidenberg should have at least acknowledged that UMG has taken the position that the notice was not sent pursuant to the DMCA. Rather, UMG asserts that the notice was sent only pursuant to YouTube's terms of service. See this brief at 1:15-19 ("In fact, Universal sent the notice pursuant to YouTube’s Terms of Use and expressly disclaimed any reliance on Section 512."). The court has not yet definitively ruled whether UMG's notice was in fact a "DMCA notice."

YouTube ordinarily responds to counternotifications fairly quickly, reposting the videos in a day or two.

Wrong, wrong, wrong. YouTube has stated repeatedly that is follows the DMCA's procedure, and keeps the videos down 10-14 businesness days after receiving a counternotice, and only then (assuming no lawsuit has been filed) reposts. As YouTube explains:

After we send out the counter-notification [to the copyright owner who sent the takedown notice], the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the material on YouTube. If we receive such notification we will be unable to restore the material. If we do not receive such notification, we may reinstate the material.

Indeed, it was this 10-14 day period during which YouTube keeps the video down that motivated us at the McCain campaign to send this letter to YouTube last October, requesting that they repost videos sooner under certain circumstances. YouTube politely declined.

“I decided my First Amendment rights were being violated, and I decided to hit them where it hurt—let them know they couldn’t do this to people anymore.”

Seidenberg should have pointed out that Ms. Lenz's reliance on the First Amendment is misplaced. Surely he knows that the First Amendment only restricts the actions of the government -- not private actors like UMG or YouTube.

The judge denied UMG’s motion to dismiss the suit, enabling Lenz to attempt to prove in an upcoming trial that UMG filed the takedown notice in bad faith.

This gets way ahead of itself, and is highly misleading. In fact, the court strongly indicated (see page 8) that the case would never make it to trial, and that he would grant summary judgment for UMG:

Although the Court has considerable doubt that Lenz will be able to prove that Universal acted with the subjective bad faith required by Rossi, and following discovery her claims well may be appropriate for summary judgment, Lenz’s allegations are sufficient at the pleading stage.

Seidenberg writes:

So content owners are seeking alternatives.... They are asking the courts to impose liability on YouTube and other online companies if these companies fail to vigorously police the material posted by their users.

This isn't technically "wrong," but it's very misleading. Read this passage of Seidenberg's article, and you'd think a huge number of copyright owners have sued YouTube. They haven't. Only one major US copyright owner, Viacom, has sued YouTube. Admittedly, Viacom is a big one, but it seems to me that the real story is all the dogs that haven't barked (i.e., all the major US copyright owners who haven't sued YouTube.) None of the major record labels have sued. None of the major movie or television studios (other than Viacom) have sued. In fact, many have indicated their willingness to approach the web video infringement issue through more cooperate means, such as the UGC principles (which Seidenberg ignores).

And the content owners are lobbying Congress for tougher laws against infringement.... Internet and technology companies fiercely oppose these changes, fearing they would impair innovation and drive many of them out of business. Civil rights organizations also oppose these changes, arguing they would damage an important new avenue of public communication.

This implies that content owners are lobbying for changes to the DMCA's notice and takedown procedures. But I'm aware of no such effort. None. While both sides gripe about the DMCA (and Viacom has done far more than gripe), I think the real truth is that neither side is crazy about the law, but both sides realize that the alternative -- in either direction -- could be a whole lot worse, and no one is eager for the WWIII that would erupt if the issue of UGC (user-generated content) sites' liability for users' infringement were the subject of a big new legislative battle.

The battle over online copyright infringement was supposed to be resolved a decade ago.

Ha! Ha, ha, ha! Yes, the passage of the DMCA in 1998 set some basic ground rules. But I don't think anyone who was involved in the legislative process that culminated in the DMCA's enactment was really so naive as to believe that it would "resolve[]" "[t]he battle over online copyright infringement." We'll still be "resolv[ing]" for quite a few more years, probably decades.

When an online company removes allegedly infringing material that was posted by a user, that company is statutorily required to notify the user of what happened and why.

I'm not sure where Seidenberg gets the "why" requirement. I don't find it in the DMCA. Rather, the DMCA simply requires that, for a service provider to maintain its safe harbor, it must "take[] reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material." 17 USC § 512(g)(2)(A).

Once this counternotification is received, the online company must put the disputed material back online within 14 business days, unless the company receives notice from the copyright owner that it has filed an infringement suit against the person who posted the material.

Wrong. What the DMCA actually says is that if YouTube wants to maintain its safe harbor from liability in a copyright suit by the copyright owner, it must keep the video off the site for at least 10 business days following receipt of the counternotice. (And it can't replace the video without losing the safe harbor if the copyright owner files a copyright suit over the video within those 10 days.) But, contrary to what Seidenberg says, YouTube has no obligation to put a video back. (Read Section 512(g) itself if you want a good headache.) As I've explained before, "YouTube has no obligation to host or broadcast anyone's video, and its terms of use make clear that it 'reserves the right to remove Content and User Submissions without prior notice.'"

Copyright owners have tried mightily to work with­in the existing law. They have sent out hundreds of thousands of section 512 takedown notices.

I can't cite precise numbers, but, taking my experience at Fox and extrapolating out among the many other major copyright owners, I think "hundreds of thousands" is way, way, way on the low side.

That’s far too many notices, according to some attorneys, who assert that copyright owners often do not bother to check whether an online item is truly infringing.

Ridiculous. My rough guess is that the ratio of legitimate to erroneous DMCA notices is somewhere around 1,000,000:1. The "baby dancing to Prince" takedowns get all the attention; the millions of rock-solid infringement claims get virtually none. Given the huge numbers of takedowns, are there mistakes? Of course. But again, they are a minuscule percentage of the whole. And "copyright owners often []not bother[ing] to check whether an online item is truly infringing"? I'm sure that has happened. But in my experience, major copyright owners have at least one set of eyes -- and often more -- review each video before sending a DMCA notice. The notion that they're sending huge numbers of notices without proper checks is, as far as I'm aware, just plain false.

Automated programs search for titles of copyrighted works and fragments of copyrighted songs or videos. If anything is found, the work is hit with a takedown notice—frequently without any real examination of the allegedly infringing item.

I don't believe this is true. I think Seidenberg may be confusing takedown notices submitted by content owners with automated blocks generated by YouTube's content identification system. As I've said, I believe major content owners -- even if they do use automated tools to help locate content -- have at least one human review the video before they send a takedown notice. As for videos blocked by YouTube's content ID system, my understanding is that those are not considered as having been subject to DMCA notices.

If an attorney for Uni­versal had examined the video, says Gratz, counsel would have recognized that the snippet of a Prince song in the video was almost certainly not infringement, but fair use.

This seems to accept Gratz's surmise that no UMG attorney reviewed the video before the notice was sent. But I don't believe UMG has stated one way or the other whether this actually happened. I don't know whether a UMG attorney reviewed the video before a takedown notice was sent, and I don't believe Seidenberg or Gratz know either.

The automated nature of many takedown notices also may explain why the International Olympic Committee ordered YouTube last August to take down a video titled Beijing Olympics Opening Ceremony.

Again, I'm not aware of any major content owner sending actual DMCA notices in a purely "automated" fashion, without any human review. Seidenberg does not definitively identify any company alleged to be doing so.

These are not isolated examples of copyright owners being overly vigilant. “There’s no question that takedown notices get overused,” says Jessica Litman, who teaches copyright law at the University of Mich­igan Law School.

Where's the evidence that the "isolated examples" Seidenberg cites -- the dancing baby and the Tibet video -- are anything but "isolated examples"? I'm confident that a rigorous study of DMCA takedown notices would confirm that all but a tiny percentage of the videos subject to notices are unambiguously infringing. That was certainly my experience when I was actively involved in the process for a major copyright owner (and I still believe that even after the McCain campaign, on which I worked, was subject to several takedown notices I believe were unfounded).

Nevertheless, the ruling may pose serious problems for copyright owners, forcing many to spend significant time and money on legal analyses of large numbers of potentially infringing online items.

“What the court is asking doesn’t sound like much, but ... determining whether something is a fair use can take a goodly amount of time,” Goldstein says. “When you pick a doctrine as protean and indeterminate as fair use, asking people to make snap judgments often isn’t feasible.”

This implies that copyright owners are not currently engaging in legal analysis, including fair use analysis, before issuing DMCA notices. But that is just plain false. I personally have reviewed thousands of videos before deciding whether to send takedown notices (or not), and there are plenty of others employed by content owners who have done the same. With all respect to Professor Goldstein (whose work in this area I much admire), lawyers employed by copyright owners make "snap judgments" on fair use issues countless times every day. I can't claim that we get it "right" 100% of the time, but we do our best, which I think is very good, and certainly what the law requires.

However, sending takedown notices to some UGC sites is often akin to playing a frustrating game of Whac-­a-Mole.

Hooray! I'm a fan of anyone who spells "Whac-a-Mole" correctly.

Judge Howard R. Lloyd held that although Veoh had the ability to control its own system, it did not have the ability to control the infringing activity. He concluded that the DMCA protects online companies like Veoh that work in good faith to limit copyright infringements committed by their users.

Small point, but it's Magistrate Judge Howard R. Lloyd. No disrespect to Magistrate Judge Lloyd, but the fact that the Io v. Veoh opinion was written by a magistrate judge, rather than by an Article III judge, does somewhat reduce its precedential weight.

According to Viacom’s complaint, YouTube has filtering technology that can identify and possibly remove copyrighted material, but this technology is used to protect only works that are licensed to appear on YouTube—such as music videos of Sony BMG artists, clips from HBO shows and segments from MGM movies. Unlicensed works don’t benefit from this technology, and their copyright owners thus face a flood of infringing posts.

I don't believe Seidenberg's characterization of YouTube's filtering technology (i.e., that it applies only to "works that are licensed to appear on YouTube") is correct. As YouTube says, "Copyright holders can choose what they want done with their videos: whether to block, promote, or even—if a copyright holder chooses to partner with us—create revenue from them, with minimal friction." Which implies that the system is available both to YouTube "partners" (i.e., those who license their content), and non-partners. More info here.

If the courts eventually determine that the DMCA’s safe harbor protects most service pro­viders against liability for their users’ posts of infringing works, online companies and their users would benefit. Copyright owners, however, would find themselves in a difficult position. They would be forced to continue their Whac-a-Mole efforts to curb online infringements, and could bring infringement suits only against those people who upload or download the infringing works.

Actually, I don't think the situation would be nearly so dire "if the courts eventually determine that the DMCA’s safe harbor protects most service pro­viders against liability for their users’ posts of infringing works." Automated content ID systems will continue to improve, and many content owners will choose to share revenue with YouTube -- which YouTube claims 90% of its content ID system users are already doing.

In addition, the law clarifies when civil forfeiture can be used against those allegedly involved in copyright infringement. It empowers U.S. attorneys to get ex parte orders from courts to seize “any property used, or intended to be used, in any manner or part to commit or facilitate” criminal copyright infringement.

This poses new risks for YouTube, ISPs and other online intermediaries. “Prosecutors could use this provision to seize servers of Internet companies, or threaten to seize them, in order to get these companies to cooperate,” says Jonathan Band, a Washington, D.C., attorney who represents NetCoalition, an advocacy group for major Internet companies, including Google, Yahoo and CNet.

I think this is really, really farfetched. While it's possible to imagine abuses of the PRO-IP Act's seizure provisions, I can't conceive of prosecutors rushing in to seize the servers of any remotely legitimate company, even one engaged in a serious civil copyright infringement suit. I could be proven wrong, but I strongly suspect that the seizure provisions will be employed only in cases like a bootleg DVD replicator, or a criminal warez group. "Google, Yahoo and CNet" probably have little to fear.

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Again, my quarrels with Seidenberg's article are not based on any belief that he is biased, or failed to make a good faith effort to get his facts right. But a reader of his piece who hasn't lived and breathed these issues is likely to come away with the impression that rapacious copyright owners are issuing vast numbers of meritless DMCA notices, completely indifferent to fair use or common sense. From my personal experience -- both at a major content owner and as the recipient of flawed takedown notices myself -- I don't believe that is a fair assesment of the facts.