Declining To Sue Is Hardly An Acceptable Solution For DMCA Takedown Response

from the still-problematic dept

Fri, Jan 30th 2009 2:04pm — Mike Masnick

Earlier in January, the EFF and Public Citizen called attention to a local Fox affiliate using a DMCA takedown notice to remove a video that was used by an activist group, Progress Illinois, to comment on the broadcast. It was almost certainly fair use, but 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. Considering that it was being used for commentary on current events, the fact that Fox is able to keep the content down for 10 business days should be seen as a problem. Anyway, as (former Fox lawyer) Ben Sheffner notes, Fox appears not to have filed a lawsuit in those 10 days, and thus, YouTube has restored Progress Illinois' account. Of course, as Sheffner also points out, 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.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: decline to sue, dmca, takedowns
Companies: eff, fox, progress illinois, public citizen

15 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

Urza, 30 Jan 2009 @ 3:11pm

Progress Illinois should sue...
"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."

I think there should be a clarity that if a company issues a takedown notice doesn't sue, the person served with the notice should have every right to sue them. I just don't understand how these guys can go filing takedown notices on whatever they want and have absolutely no consequences for killing legal uses. Fox was clearly wrong here. Where's the lawsuit?
[ link to this | view in chronology ]
- xippie, 30 Jan 2009 @ 3:32pm
  
  Re: Progress Illinois should sue...
  the person served with the notice should have every right to sue them. Could not agree more!
  [ link to this | view in chronology ]
Anonymous Coward, 30 Jan 2009 @ 5:14pm

Strawman
In the future, such commentary could avoid the use of their precious content and instead put together a stick figure representation of the content - possibly even in a mocking fashion.

btw, what would happen to the average person if they were to issue such a take down notice based upon questionable content usage.
[ link to this | view in chronology ]
Anonymous Coward, 30 Jan 2009 @ 5:15pm

it seems kind of ironic to me...and this may sound really messed up...but that doesn't mean its not at least partially valid. For the better part of the past century small groups of people or even individuals have been able to promote their agendas by finding ways to bend the law to their will...many of these situations have lead to interesting outcomes: civil rights, workers rights, womans rights, freedom of speech...all have significantly benefited from people finding ways to circumvent the way the laws were actually written. How long did you really think it would take big business or others with power and wealth to realize they can exploit the same weaknesses in laws.
[ link to this | view in chronology ]
- Anonymous Coward, 30 Jan 2009 @ 5:43pm
  
  Re:
  AC #4,
  
  I think you missed the fact that the DMCA seems to be a one way street. You seem to assume that anyone could use it in this manner. I seriously doubt that you or I would get away with it ...
  [ link to this | view in chronology ]
Copyrights & Campaigns, 30 Jan 2009 @ 6:04pm

Errors re DMCA notice and takedown process
There are several problems with this post's description of the DMCA's notice-and-takedown process, as I explain here:

http://copyrightsandcampaigns.blogspot.com/2009/01/techdirt-errs-on-dmca-notice-and.html

To those in the comments suggesting that the recipient of an unfounded takedown notice should be able to sue: it's already possible. Section 512(f) provides a cause of action against anyone "who knowingly materially misrepresents under this section...that material or activity is infringing."
[ link to this | view in chronology ]
- Anonymous Coward, 30 Jan 2009 @ 6:15pm
  
  Re: Errors re DMCA notice and takedown process
  Copyrights & Campaigns,
  
  That is really good information, thanks so much. I know I'll sleep better tonight with the knowledge that I can waste my life savings in a David vs Goliath action.
  [ link to this | view in chronology ]
  - Copyrights & Campaigns, 30 Jan 2009 @ 6:22pm
    
    Re: Re: Errors re DMCA notice and takedown process
    There are those willing to take such 512(f) suits for free:
    
    http://www.eff.org/cases/lenz-v-universal
    [ link to this | view in chronology ]
    - Anonymous Coward, 2 Feb 2009 @ 2:55am
      
      Re: Re: Re: Errors re DMCA notice and takedown process
      There are those willing to take such 512(f) suits for free:
      http://www.eff.org/cases/lenz-v-universal
      
      Gee, I didn't know the EFF was obligated to represent me for free. I guess you learn something everyday. Thanks Copyrights & Campaigns!
      [ link to this | view in chronology ]
- Mike (profile), 30 Jan 2009 @ 11:48pm
  
  Re: Errors re DMCA notice and takedown process
  There are several problems with this post's description of the DMCA's notice-and-takedown process, as I explain here:
  
  Heh. Typical lawyer-speak. You know perfectly well that the difference between "YouTube needs to do x to retain its safe harbors and avoid liability" and "YouTube is required to do x" is basically meaningless.
  
  But it gives you a chance to let you think you appear oh-so-smart.
  
  You're like the kid in grade school who corrected a teacher misplacing a comma. It makes you feel good, but it totally misses the point.
  [ link to this | view in chronology ]
- PaulT (profile), 31 Jan 2009 @ 12:45am
  
  Re: Errors re DMCA notice and takedown process
  "To those in the comments suggesting that the recipient of an unfounded takedown notice should be able to sue: it's already possible."
  
  If they can afford to pay leeches like you to get such action through court against a major corporation's defence team... Take a wild guess as to why this doesn't happen very often.
  
  Besides, you are totally missing the point. You state the following in your blog:
  
  "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."
  
  Here's the problem: YouTube are NEVER going to side with a random individual against a major corporation. While it's legally possible for YouTube to ignore the takedown notice and fight the battle, that would sour relations with the content providers they're trying to get licences from and cause many issues later down the line. YouTube aren't willing to risk this over a random guy's news commentary, so the protections may as well not exist for the user.
  
  This, in turn, creates the same chilling effect as if the protections were not there. It means that any major copyright holder can make a false claim against a YouTube user, and remove any comment on current events for long enough for said commentary to be irrelevant. That's disgusting in a society that supposedly encourages free speech, and it creates a situation that favours the corporation over the individual. Rather than discussing semantics, maybe you should address these implications. Just because a law is written a certain way, that does not mean its right, or that the spirit of said law is upheld.
  [ link to this | view in chronology ]
  - Copyrights & Campaigns, 31 Jan 2009 @ 8:29am
    
    Re: Re: Errors re DMCA notice and takedown process
    Well, I think it's important to start with an accurate description of what the statute actually says before we get into arguing about possible changes to it (which I've done plenty of times). One of the problems with this post is that it misstates what the DMCA actually says. That's not a good jumping-off point for a discussion of possible reform.
    
    When you're discussing a complex statute like the DMCA, the words are crucial; it's not just a matter of "semantics."
    [ link to this | view in chronology ]
    - Anonymous Coward, 31 Jan 2009 @ 1:20pm
      
      Re: Re: Re: Errors re DMCA notice and takedown process
      So, Mister apparently a lawyer ....
      What would you suggest as a solution to this problem ?
      
      Expected response -> "What problem ?"
      
      Response to expected response -> "read the above comments"
      
      blah blah, ok this is going nowhere ....
      [ link to this | view in chronology ]
    - Mike (profile), 1 Feb 2009 @ 5:50pm
      
      Re: Re: Re: Errors re DMCA notice and takedown process
      Well, I think it's important to start with an accurate description of what the statute actually says before we get into arguing about possible changes to it (which I've done plenty of times). One of the problems with this post is that it misstates what the DMCA actually says. That's not a good jumping-off point for a discussion of possible reform.
      
      When you're discussing a complex statute like the DMCA, the words are crucial; it's not just a matter of "semantics."
      
      I'd argue it is, in this case, very much a matter of semantics. If the law has made it such that to avoid liability all companies treat the actions necessary to get safe harbors as required, then, for all intents and purposes, it is *absolutely* required.
      
      Arguing otherwise is a cheap lawyer trick.
      [ link to this | view in chronology ]
  - Anonymous Coward, 31 Jan 2009 @ 10:46pm
    
    Re: Re: Errors re DMCA notice and takedown process
    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."
    Yep, and they're perfectly entitled to loose a lot of money defending themselves in court afterwards as well, even if they win. The only ones who benefit from such a system are the lawyers, who make a lot of money no matter how it turns out.
    
    Question: What's the difference between the DMCA and an ambulance?
    Answer: You don't have to chase the DMCA down.
    [ link to this | view in chronology ]