Two Copywrongs Don't Make A Right, But We Still Need A Way To Combat False Takedown Notices
from the because-they-wrote-the-laws dept
We've noted plenty of examples of completely bogus takedowns due to copyright claims -- including some pretty serious ones. Over at TorrentFreak, they're asking if such bogus takedowns should be punished in some manner, and they suggest a three strikes system, in which after the third strike, parties are not allowed to file any more takedowns for a month. I'm not sure such a system would really be that productive, but it does seem that something should be done. I know that whenever we talk about bogus takedowns, people point to the "penalty of perjury" language found in DMCA takedown notices. But that's usually a misreading of what the perjury notices actually say. The "penalty of perjury" part only needs to apply to the claim that the party writing the letter is authorized to act on behalf of the rightsholder. That's it. It does not need to apply to the claim that the content is actually infringing, even though most people interpret the notice to read that way. Separately, when the takedowns happen via automated systems like YouTube's ContentID, or via government action, like ICE's domain seizures, the perjury claims have no bearing at all, since they happen outside of the DMCA entirely.So what can or should be done in those situations? At one point, some Brazilian officials had suggested effectively putting the public domain and fair use on par with copyright -- and thus equalizing the punishments for violating either. There is some poetic justice in such a setup. Given the insanity of today's statutory damages rates (which can lead to up to $150,000 for infringement of a single item), would it be reasonable to then say if you take down something incorrectly, you are opening yourselves up to similar damages?
Defenders of copyright would argue that's way too harsh, though they'd do so without any hint of realization that those penalties are way too harsh for today's infringement as well. Besides, they wouldn't have to worry if they only issue proper takedowns.
Of course, the problem with that is that you're effectively creating a "two wrongs" situation, rather than fixing the bad situation. You could argue that if you set it up so that the two sides had to be in lockstep, then that might actually encourage copyright holders to be more willing to come to the table to reduce statutory damages to more reasonable levels, though this also explains why they'd fight as hard as they could against any such proposal.
In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed.
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Filed Under: bogus takedowns, dmca, free speech, perjury, punishment, statutory damages, takedowns
Reader Comments
The First Word
“If a company cannot use its copyrights/patents responsibly, it does not deserve to own them. Meanwhile, flagrant instances of copyright infringement (IE, copying an author's book word for word and publishing it as your own) would still be punishable.
Because of the risk of losing their copyright/patents entirely, companies would do a LOT of research into potential infringers and ONLY submit a claim if they think they could realistically win.
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Mirrored Damages
I'm not sure how they could even rationally argue against it, without devolving into some variation of "But we're the big companies-- don't you realize that copyright law is only supposed to *benefit* us, not harm us!"
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Re: Mirrored Damages
Soon we will also have a 6 Strikes System against us the Consumers.
Two Fingers in the Air against Big Content.
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Re: Mirrored Damages
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Bogusity
3 provably false DMCA notices and the party responsible for sending said bogus DMCA notices loses the privilege of sending such notices for 1 year.
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absoutely
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> lefts will...
I never got that joke. Doesn't making three lefts just put you back in your original starting place?
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For this to work, however, you must go to the next intersection before making a left had turn. Otherwise you will be off by one block from where your original right hand turn would have been.
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No, not if each turn is 90 degrees.
If you start out facing North and make a left turn, you will be facing West. Make a second turn and you will be facing South, a third left turn and you will end up facing East, which is the way you would have been facing after a single right turn.
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Too simple?
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Re: Too simple?
I'm in favour of getting rid of all the problems with copyright in a single stroke. Just amend Title 17, section 107, to the following:
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Re: Too simple?
A partner will be able to use Adsense to monetize specific videos. Question: Is all his videos commercial use?
Now, depending on how people answer the above questions, youtube can use the rules to their advantage:
If both are illegal it will have to keep on track with what they are doing now.
If non-partners are non-commercial use, they will never let that channel get partnered, but they also have 0 incentive to remove it. Therefore you are getting youtube as a "judge" of what is copyrighted content.
If partnered non-commercialized videos are ok, you end up with youtube letting whoever has most views get partnered. The gateway will be Adsense and they will have to be "judge" over what videos can be monetized.
If none of those uses are commercial, it will be almost impossible to find a commercial use online...
None of the above situations are really where anyone want things to go. The only solutions to the problems about copyright online is through very drastic laws in either direction or new programs able to monitor, restrict, censor and monetize. Of those choices I think most would wait for evolution of programs and technology, while a few would scream for absolute laws.
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Of course, we could just repeal the DMCA...
Not like any of this stuff will happen any time soon, if at all, of course.
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Start with Giving the DMCA Misuse Section Teeth
Problem is that courts have interpreted that to require a showing of something like "subjective intent" which is nearly impossible to prove (especially if the actor is a machine), so victimized plaintiffs rarely (if ever) win on a claim for DMCA abuse.
All we need is for Congress to give it some teeth: "objective" intent, for starters. Easy. Right? Sure, Congress is just chomping at the bit to charge through the phalanx of **AA lobbyists to change a statute in a way that may help the huddled masses.
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Re: Start with Giving the DMCA Misuse Section Teeth
The "subjective" standard notwithstanding, it does bear mentioning at least one case in the Federal District Court for the Northern District of California where the party whose published content was taken down was able to prevail and secure damages against the party alleging rights in support of its takedown notice. That case is Online Policy Group v. Diebold.
Should the standard be changed? I am not intimately familiar with the issue, so I express no opinion on this issue. My comments is solely to note that it is possible for one subject to a knowingly false takedown notice to prevail.
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Re: Re: Start with Giving the DMCA Misuse Section Teeth
Lenz is ongoing. The court is sitting on cross-motions for summary judgment at the moment. Decision should come soon. Universal, IMO, carried its burden in demonstrating not only subjective, but objective, good faith in issuing the takedown.
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I say lets get damages for false take downs and then get some fair-use troll companies started and just build up an entire economy of gaming the algorithms. TDEO (take down engine optimization)
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A fee to file system would build a monstrosity. Companies would have a new revenue stream and look to grow that by encouraging more takedown requests. Bad idea.
Moving away from a notice and takedown system to a notice and notice system would help also.
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That said, the law should CLEARLY define what's public domain, fair use and derivative works. In my opinion a derivative work doesn't fit in the fair use clause. Fair use is when you use a work on a charity event, when an average joe (not our obnoxious troll) uses the song to make a slide show of the kids pictures or as a background to his video walkthrough etc (I mean, fair use should pretty much encompass all non-commercial use including but not limited to sharing with friends/family).
An example of derivative work would be a fan fiction. Stories based on the original work should have some protection and the extent of this protection would need to be discussed.
It should introduce a public consultation system that would explicitly show who is the copyright owner (NOT holder, the rights should belong to the original creator, not a damn label or studio but the crew involved). This would need more discussion to see how it would work.
Summarizing, we need to re-write copyright to clearly define the terms and players. And it should not be static nor stacked in favor of a determined industry. Sorry if I was prolix in this comment.
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If a company cannot use its copyrights/patents responsibly, it does not deserve to own them. Meanwhile, flagrant instances of copyright infringement (IE, copying an author's book word for word and publishing it as your own) would still be punishable.
Because of the risk of losing their copyright/patents entirely, companies would do a LOT of research into potential infringers and ONLY submit a claim if they think they could realistically win.
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It is therefore up to the person wronged to apply justice.
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Naturally I'm not advocating this, just thinking out loud, as it were...
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Also, the biggest problem with abuse is becoming ContentID systems which have nothing to do with the DMCA (or any other law), so changing the DMCA would do nothing to mitigate the abuse there.
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The system it has to protect both parties. It cannot work only one way because that would just be a dictatorship and I'd like to think we're not that bad just yet. Although it seems like it sometimes :/
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Where to start? Hmmm.
"Separately, when the takedowns happen via automated systems like YouTube's ContentID, or via government action, like ICE's domain seizures, the perjury claims have no bearing at all, since they happen outside of the DMCA entirely. "
So none of these have to do with false takedown notices, so why mention them at all, except to create a little confusion and mix things together to try to make it look worse?
" Over at TorrentFreak"
Great source, you know they aren't going to be biased or anything. They use the great statistical calculation of false reports and they come up to "a healthy percentage" but no numbers. You would ream the **AAs out for a report with something like that in it, why not do the same to TF? Oh wait, you agree with TF, so you let it slide.
"In the end, I really don't know what the proper response is -- but it does seem clear that the ability to falsely censor content online, thanks to the DMCA and bogus notices and automated systems, is a real problem that needs to be fixed."
Again, you are mixing a bunch of stuff together here. Because of actions by ICE, then rights holders should be punished for... what exactly?
You also know, understand, but fail to allow for the idea of "good faith". DMCA has backed rights holders into a corner, where they are require to each individually police the internet for misuses of their content. Many companies send out thousands of DMCA notices per day, in an attempt to stem the flood of pirated material eating away at their businesses and rights. They submit these notices generally in good faith, without intent to censor anyone.
There are literally millions of DMCA notices sent per month, and you highlight less than a handful that cause some form of what you perceive as censorship - and the system needs to change?
Wow, talk about not seeking any balance.
Tell you what: Let's round up the first, what, 1 million people pirating stuff, have them pay $150,000 for each item they are pirating, and then, maybe then, we can look at the your few cases you think are false claims. Until there is a little balance in, things, your whining is just so out of place.
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And DMCA notices do not determine infringement, they are accusations. Only courts can make that determination. To base the number of infringements on DMCA notices filed is utter bs.
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Rightsholder
Yes, but what if this "rightsholder" isn't actually the "rightsholder", but someone falsely claiming a copyright? It means that the party writing the letter is NOT authorized to act on behalf of the rightsholder, but just on behalf of someone trying to defraud somebody.
The way I read this, if you're acting on behalf of a fraudster, you're still liable. You could sue the fraudster, tough, if he told you he was the rightsholder..
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False takedowns
Second penalties should be the same as for copyright violation and the statutory penalties should apply but for live streams should be per person cut off from the stream.
Persistent violators (more than 5 a year) should be sentenced to death. The corporation should be forced to take chapter 11 bankruptcy with pensioners, and debtors given priority and executives and members of the board forfeiting all rights.
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False DMCA complaints
I downloaded a copy of a movie in November for the purpose of writing a critique of the special effect, fair use as far as I am concerned, for journalistic purposes. There is basically no way to do a good critique of special effects without a copy of the movie so you can watch the same scene repeatedly to analyze what is happening as far as effects are concerned.
Since then Disney has sent three DMCA notices to Charter. One for the original download and two more that are fraudulent stating I also downloaded the same movie in December and now in January. This is malicious defamation
trying to defame me with my ISP and nothing more. It is also criminal abuse of the DMCA and vindictive persecution in an attempt to falsely make me look like a serial copyright violator.
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