Friday, January 30, 2009

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.


  1. Ben wrote:
    "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."

    Fine Ben, then put your pocket where your mouth is, and send the guy on flickr from whom YOU took the photo of the courtroom in harvard for your blogpost about Mr. Oppenheim's deposition.
    While this guy does not demanded a license fee for the usage, non the less: You as a rich Copy"right" guy should have that money, should you not?
    Or is it convenient if one himself can nicely profit from the intentions of "copylefters" by exployting their leftist attitude of not wanting money but only a fair attribution as license "payment". "Own fault of those copy"leftists" that they grant me, Ben Sheffner, the right to use their copyrighted stuff without demanding me to pay, Har Har Har!"
    That's called hypocrite, isn't it?

  2. I never claimed that the use of the Ames Courtroom photo was a fair use. I actually chose that photo because the person who posted it applied a nifty Creative Commons "Attribution-Noncommercial 2.0 Generic" "license" that indicates permission for noncommercial uses like inclusion on my blog (with attribution, which I did).

    So no, that's not called "hypocrite."

  3. Just a note to commenters (especially "Alter_Fritz," a couple of whose comments I have declined to publish): I moderate comments. If you say something on-topic and substantive, I'll publish it, even if you disagree with what I've written. If you just engage in name-calling, and nasty, personal attacks, I won't, so don't waste your time.

  4. This is a great article, Ben, and I agree with many of the points you mention, but isn't the core issue here-- whether the DMCA "requires" YouTube to take down content that's been flagged as infringed or whether YouTube "chooses" to pre-emptively take down the content to preserve its safe harbor status--a distinction without a practical difference?

    Of course the DMCA doesn't mandate that YouTube MUST take down the videos, but when you're a company that's THAT big, and your failure to comply with the DMCA takedown notice will ALMOST ASSUREDLY result in you being sued for contributory copyright infringement (regardless of whether any infringement actually took place), what do you think YouTube is going to do? The DMCA was built for ISPs to shoot first and ask questions later, and the almost guaranteed threat of being named in a lawsuit.

    I mean, if I'm the plaintiff's lawyer, and if I thought UGC was infringing and I wanted a takedown, and the ISP REFUSED to follow the DMCA and waived its safe harbor protection in any way, this case has seriously shifted from a minor annoyance from an individual who probably has no money to a HUGE case against a defendant with GIGANTICALY DEEP pockets! My copyright infringement claim survives a motion to dismiss, and the ISP will have to spend at a bare minimum $20,000 to litigate the fair use issue--basically on behalf of their content owner--to at least get to a motion for summary judgment (especially in federal court). That means that I can almost guarantee my client SOME monetary recovery--even nuisance value, if the ISP takes one step outside its safe harbor regarding any piece of media that's close to arguably infringing. To me, that's the legal straw man equivalent of the DMCA requiring the ISP to take down the material. I appreciate your letter written on behalf of the McCain campaign, but of course even at the time you had to realize that, with the DMCA as it is, YouTube has really only one course of action once a takedown notice has been provided, yes?

    Oh, and I added a comment over on the 43(B)log about this, too.

    Kyle Kaiser

  5. Kyle --

    You write: "and [YouTube's] failure to comply with the DMCA takedown notice will ALMOST ASSUREDLY result in [YouTube] being sued for contributory copyright infringement..."

    I actually don't think that's true. Let's say that a copyright owner sends a takedown notice on a video that's clearly, or even arguably, fair use. YouTube looks at the video, decides it really is a fair use, and declines to take it down.

    The copyright holder then has do decide whether to sue YouTube to force them to actually take it down. I think that in the vast, vast majority of cases, the copyright owner will *not* sue. Except in the rarest of cases, it's just not worth it to make a federal case over a single YouTube video, especially when YouTube, with its own virtually unlimited resources, will be on the other side. (Can you think of any examples of a copyright owner suing over a single video?) Also, the copyright owner would take a bad PR hit for suing over an arguably fair use. I'm not saying it could *never* happen, but such lawsuits would be exceedingly rare.

    I understand your point that the DMCA gives YouTube a strong incentive to take down videos automatically upon receipt of a notice. But I also think that the risk to YouTube of exercising discretion to decline to take down videos in the rare case it determines the video to be a non-infringing fair use is low, and certainly low enough for a company with its resources to bear.

  6. When talking about a site like YouTube it wouldn't be a sensible scenario to talk about a single video, or even a few.

    YouTube will only start to automatically claim fair use on behalf of their clients, and hence not take the content down as soon as they receive the notice, if they implement it as one of the standard responses for a certain well defined and identifiable set of videos. It will never be an ad hoc response to a few exceptional cases.

    Before YouTube would consider to implement such a policy "fair use" would need to be better legally defined in a user created content setting with a solid set of cases behind it. Neither which is likely to happen in the near future. That is the only way they could set up a sound, automated rules framework to work from. Once you are dealing with an enterprise of YouTube's size who have to deal with the potential legal liabilities and pitfalls they do you have to be consistent, rules based, conservative which leaves little to no room for ad hoc exceptions (except for a few where PR comes in...).

    As an aside, assessment of this entire issue hinges quite a bit on how broad you think current fair use rights are and whether fair use videos being taken down are a rare exception or an everyday occurrence. Well, and more generally how many takedown notices are justified in any case. Ben and Kyle obviously standing at opposite ends of the spectrum on the matter.


Comments here are moderated. I appreciate substantive comments, whether or not they agree with what I've written. Stay on topic, and be civil. Comments that contain name-calling, personal attacks, or the like will be rejected. If you want to rant about how evil the RIAA and MPAA are, and how entertainment companies' employees and attorneys are bad people, there are plenty of other places for you to go.