Techdirt errs on DMCA notice-and-takedown process

I could -- and sometimes do! -- spend all day doing nothing but correcting news organizations' errors about the DMCA's notice-and-takedown procedures. Many of the mistakes stem from the false belief that the DMCA requires service providers like YouTube to act in a certain way. It doesn't. Rather, the statute merely provides a "safe harbor" (i.e., a defense) to a claim of copyright infringement. Service providers are under no obligation to seek that safe harbor by following the DMCA's notice-and-takedown procedures -- and there's a good argument that they should not when they face no real threat of copyright liability in the first place.

Case in point is today's Techdirt post on the dispute between Progress Illinois and Fox O&O WFLD-TV about WFLD footage that the liberal news web site posted to its YouTube account and embedded in several stories. Techdirt writes:

thanks to the way the DMCA works, even with a counternotice, YouTube is required to keep the video down for at least 10 business days.

Wrong. As I explained above, the DMCA does not "require[] [YouTube] to keep the video down for at least 10 business days," or even to take it down at all when it receives a notice from the copyright owner. The DMCA simply says that if YouTube (or any service provider) wants a safe harbor from a claim of copyright infringement, it must follow certain steps (including keeping the video down for at least 10 business days). But YouTube is perfectly entitled, upon receiving the notice, to say, "We believe the video at issue is a fair use. Thus, we decline to take it down." If YouTube is indeed correct that the video is noninfringing, then it has no need for the defense the DMCA's safe harbor provides. The only way to actually force YouTube to take a video down would be to have a court so order.

Techdirt also says:

Fox gets to take this video down at a time when it's most useful for commentary purposes...

Wrong. Fox doesn't "get[]" to take anything down. It sends a notice to YouTube, and it's up to YouTube to decide how to proceed: take the video down, leave it up, negotiate a solution with the relevant parties, or something else. But Fox can't unilaterally take down a video from YouTube.

A few other things bear mention. Techdirt writes:

Earlier in January, the EFF and Public Citizen called attention to a local Fox affiliate using a DMCA takedown notice to remove a video...

But it was not just "a" video; it was actually three (links to the stories in which they were embedded here and here). Of course, Progress Illinois' account never would have been disabled had a takedown notice been sent on just one video; YouTube has a "three strikes" policy.

Next, Techdirt writes:

It was almost certainly fair use...

But I am far from sure it's such an open-and-shut case. Progress Illinois and its defenders appear to be focusing solely on the use of the clips as embedded on the site (here and here), surrounded by news and commentary -- a context suggestive of fair use. However, that is not the only context in which the videos posted by Progress Illinois appear. The videos also appear entirely without commentary on the regular YouTube "watch pages": here, here, and here. It's much harder to argue convincingly that those clips sitting on the watch pages, unadorned by any commentary, criticism, or other socially beneficial features, qualify as fair uses. Also, Progress Illinois' uses at least raise the question: is it using this footage truly to comment on it? Or, rather, is it just cheaper for Progress Illinois to take footage shot by WFLD's camera crews and reporters than to hire its own? Fair use is not simply a license for those who don't have a lot of resources to free ride on the work of those who do.

Next, Techdirt argues that there's something wrong with the fact that Fox issued the takedown notices but then didn't immediately sue:

Fox could still sue Progress Illinois at a later date, despite its failure to do so during the counternotice response window. Again, the whole scenario is problematic. Fox gets to take this video down at a time when it's most useful for commentary purposes, and then retains the right to sue at a later date without ever having to make a case for why the takedown was legitimate. It seems like there should be clarity that, if a company that issues a takedown does not sue following a counternotice, it should be seen as approval that the video is not infringing.

But there are plenty of good reasons Fox could decline to sue other than "approval that the video is not infringing." For example, it could come to the conclusion that Progress Illinois' uses, while infringing, were relatively minor, and not worth (literally) making a federal case over (which, I suspect, is was what happened here). Copyright owners are under no obligation to sue every alleged infringer, nor should they be. Nor, given the volume of infringement on the web, could they ever.

Lastly, Techdirt's suggestion that a copyright owner should lose the right to sue for infringement after the 10-day counternotice window closes would constitute a fairly radical change in copyright law, effectively reducing the statute of limitations from its current three years to "10 days after submission of a counternotice." There are plenty of legitimate reasons that it takes much longer than 10 days to file an actual infringement suit: locating and retaining counsel, factual and legal research, determining the proper forum, drafting the complaint, obtaining the necessary client approvals, etc. Such a dramatic shortening of the statute would deprive copyright owners of their legitimate right to sue infringers.