US Copyright Office Asks For Public Comments On DMCA's Notice And Takedown
from the well,-this-ought-to-be-interesting dept
On New Year's Eve, the US Copyright Office dropped a bit of a surprise, asking for public comment on the DMCA's Section 512 safe harbor provisions -- which are probably better known as the "notice and takedown" provisions:The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. 512. Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices. To aid in this effort, and to provide thorough assistance to Congress, the Office is seeking public input on a number of key questions.You can see the full Notice of Inquiry (also embedded below).
What comes out of this may certainly be interesting, but it's not difficult to predict that there will be two huge piles of responses that are more or less diametrically opposed: a group of content creators who are obsessed with the fact that they have to send takedown notices and that their works still keep popping up will complain about all of this, and say that the notice and takedown process is too onerous for content creators, and that we should move instead to a world where platforms have to pro-actively monitor things, such as with a "notice and staydown" procedure. On the flip side, you'll have plenty of people and internet platforms talking about how onerous things are from the other side: platforms are inundated with piles of requests, many of which are completely bogus, but which companies often feel compelled to take down to avoid liability. And end users face tons of censorship due to bogus and abusive takedowns.
The Copyright Office has historically come down on the side of copyright maximalists, so it wouldn't surprise me to see that the end result of this process is them suggesting more liability and responsibilities for internet platforms -- in part because they have absolutely no clue what a disaster that would be for content creators themselves. People who want to put more burdens on platforms think that this somehow helps content creators, but the opposite is true. It will mean fewer online platforms serving content creators, because the burdens will be too high. It will further entrench the large players and limit new upstarts, innovators and competitors.
If you decide to submit your own comments -- and I suggest you do -- I would hope that you focus on these "unintended" consequences of mucking with the system in the direction of further burdening these services that seem to be doing a pretty good job serving most content creators and internet users.
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Filed Under: copyright, copyright office, dmca, dmca 512, notice and takedown, safe harbors
Reader Comments
The First Word
“This piqued my interest, since statutory reform is my hobbyhorse.
I don't really care for notice and takedown; I'd rather grant broad immunity to service providers for the actions of their users, limit injunctive relief against service providers to something respectful of free speech and reasonably doable (none of this stuff with injunctions against providing any service to anyone who infringes, which is ludicrously overbroad), and let it be litigated normally so as to adhere to due process.
I acknowledge that there is a lot of piracy going on, but that's not an excuse for circumventing a proper trial with a system of effective censorship by ex parte accusation made to a non-judicial entity, no less. That there's a lot of piracy strikes me as an indicator of a fundamental problem with our copyright law, not a need for throwing out real due process so as to speed things along.
That said, if we were to nevertheless keep a notice and takedown system, I would suggest the following changes in no particular order, in addition to just rewriting section 512 for clarity, as it is a godawful disorganized mess:
* Get rid of subsection (i). The 'standard technical measures' provision is a joke; there are no such measures, whatever they are even meant to be. That's easy. I'd also eliminate the the repeat infringer termination policy rule, as it is essentially prior restraint. By all means, let users be liable for their infringements, but that's no excuse to throw them offline with regard to whatever other, non-infringing activity they do, or might in the future, engage in.
* Get rid of subsection (j) and references thereto for the same reason. (Note that this would effectively make the protection for transitory communications under subsection (a) absolute.)
* Get rid of those portions of subsection (b)-(c), and (g) regarding the removal of material on sites (since it might not be possible to put it back up, if removed), but expressly limit the removal of access to that material which is in fact stored on the system or network of the service provider.
* Get rid of subparagraph (c)(1)(A) and subsection (d)(1); ISPs should not be acting sua sponte on behalf of rightsholders. Copyright is enough of a subsidy for authors already; let them shoulder the costs of enforcement.
* Change "responds expeditiously" in subparagraph (c)(1)(C) and subsection (d)(3) to "responds reasonably expeditiously," for just because something is a world-ending emergency on the part of the copyright holder, that does not mean that everyone else should have to give it the same priority.
* Get rid of the ability of the Register of Copyrights to levy a fee on parties designating agents in subsection (c)(2); the only time that the Copyright Office should charge anyone a fee for anything is a token dollar for copyright registrations, just so that they're not free. Otherwise, the copyright system should be paid for out of the general fund. It's meant to promote the progress of science, and Congress has broad tax powers; no reason for any sort of user fees for the purpose of actually raising revenue.
* Get rid of paragraph (d)(3); service providers in the business of information location should not be obligated to engage in censorship on behalf of copyright holders. If there is infringing material out there, let the copyright holders have that taken down directly; the search engines' links will then become invalid on their own, and get removed as so much useless clutter. Paragraph (d)(3) is yet another provision that strikes too closely at free speech for my tastes.
* Revise subsection (e) such that any employee of a service provider is treated as being separate from the provider itself. As knowledge is no longer a factor under subsections (c)-(d), get rid of everything about that in (e). I fail to see why this should be limited to higher ed.
* I don't have a problem with the general idea of subpoenas in subsection (h). However, it needs more protection for privacy and for inappropriate requests. Subpoenas should only be issued under subsection (h) if a copyright infringement lawsuit has been filed with regard to the complained-of material, and the subpoena should only be issued if a judge reviews and approves of the request. The service provider should be required to provide timely notice of the subpoena request to the user, if possible, so that the user can timely object to it, and the service provider should not be permitted to respond to the subpoena until an attempt to quash it has either concluded in failure or has not been timely undertaken. And some teeth should be added to the sworn declaration requirement of subparagraph (h)(2)(C), such that there is a cause of action available by either the service provider, user, or both, probably with money damages, injunctive relief, and fees and costs, in cases where the information obtained by such a subpoena is used for purposes other than a copyright infringement suit.
* Subsection (c)(3) -- everyone's favorite -- should probably be modified by borrowing some good ideas from Rule 11. And what copyright holder could argue with such well-established safeguards? I'd rewrite this subsection as follows: (please forgive the poor formatting)
(3) Elements of notification.--
(A) A notification of claimed infringement under this section must:
(i) Be a written or electronic communication provided to the designated agent of a service provider;
(ii) Identify the complaining party, and provide information reasonably sufficient for the service provider to contact the complaining party, such as an address, telephone number, or electronic mail address;
(iii) Either:
(I) Identify the complaining party as the copyright holder suffering the alleged infringement; or
(II) Identify the copyright holder(s) suffering the alleged infringement and identify the complaining party as being authorized to act on behalf of the copyright holder(s) in this matter;
(iv) Identify the copyrighted work(s) claimed to have been infringed with specificity;
(v) Identify the material claimed to be infringing, access to which is to be disabled, with specificity such that the service provider can reasonably locate the material;
(vi) Include a certification that to the best of the complaining party's knowledge, information, and belief, formed after an inquiry reasonable after the circumstances:
(I) The information in the notification is accurate;
(II) The notification is not being presented for any improper purpose, such as to harass, limit speech, invade privacy, or gain unfair commercial advantage; and
(III) The claim of infringement is warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and
(vii) A physical or electronic signature of the complaining party.
(B) A notification which is in some respect defective with regard to the provisions of subparagraph (A) shall be of no effect.
(C) If a defective notification substantially complies with the requirements of clauses (A)(i)-(ii), the service provider shall not be eligible for the limit on liability under subsections (b)-(c) unless the service provider timely takes reasonable action to notify the complaining party of the defects in the notification, how the defects may be cured, and how the notification may be resubmitted.
* Subsection (g) should include a provision that requires the service provider to notify, if reasonably possible, the user responsible for the allegedly infringing material about the takedown notice, and that the user can file a counter notice, and what the effect of the counter notice is. The means to enforce this should not be the weak tea of liability for removing the material, but probably the usual panoply of remedies: actual, and statutory damages, costs and fees, injunctive relief, etc. After all, the provider is mostly going to be concerned about lawsuits coming from the copyright holder for infringement; complying yet failing to respect the user as an equal participant in this altogether absurd process is hardly going to get the copyright holder to sue.
* Paragraph (g)(2) should set the time limit for restoration of access to the material once the counter notice has been sent to however long the time was between the original notice and the actual takedown; whatever amount of time that is, it's only fair to be at least just as fast on behalf of the user.
* Paragraph (g)(3) concerning the contents of the counter notice should, mutatis mutandis, follow the new notice requirements of paragraph (c)(3).
* And lastly, I think, subsection (f) should be changed, such that if the complaining party or user knowingly falsely certified their notice or counter notice, they're liable to the other party and the ISP (whose time was wasted) for damages, etc. Also, if they negligently wrongly certified their notice or counter notice, they're liable, though less so.
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And when these very same content creators start seeing their works on the internet being removed and taken down due to false DMCA takedown notices then they will whine and moan and say that the platforms should be policing and pro-actively monitor for false DMCA notices which is impossible for any platform to do as only the content creator or copyright owner are the only ones who can know when their copyright is being infringed or not.
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After reading the story about Big Bang Theory possibly infringing on the Warm Kitty poem, I believe this way overstates the case. Copyright law is such a mish-mash mess, the only thing it's good for is enriching copyright lawyers via entrail stirring games. Creators and rights owners are often just as much in the dark as potential infringers.
I hope those Founding Fathers are still beating each other over the head wherever they are for allowing this Pandora's Box to be opened in the first place. How anyone can defend the existence of this monstrosity escapes me.
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As a copyright lawyer, let me just say that copyright law could stand to be a lot better at enriching copyright lawyers.
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You must be one of those mythical creatures known as an ethical lawyer.
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This piqued my interest, since statutory reform is my hobbyhorse.
I don't really care for notice and takedown; I'd rather grant broad immunity to service providers for the actions of their users, limit injunctive relief against service providers to something respectful of free speech and reasonably doable (none of this stuff with injunctions against providing any service to anyone who infringes, which is ludicrously overbroad), and let it be litigated normally so as to adhere to due process.
I acknowledge that there is a lot of piracy going on, but that's not an excuse for circumventing a proper trial with a system of effective censorship by ex parte accusation made to a non-judicial entity, no less. That there's a lot of piracy strikes me as an indicator of a fundamental problem with our copyright law, not a need for throwing out real due process so as to speed things along.
That said, if we were to nevertheless keep a notice and takedown system, I would suggest the following changes in no particular order, in addition to just rewriting section 512 for clarity, as it is a godawful disorganized mess:
* Get rid of subsection (i). The 'standard technical measures' provision is a joke; there are no such measures, whatever they are even meant to be. That's easy. I'd also eliminate the the repeat infringer termination policy rule, as it is essentially prior restraint. By all means, let users be liable for their infringements, but that's no excuse to throw them offline with regard to whatever other, non-infringing activity they do, or might in the future, engage in.
* Get rid of subsection (j) and references thereto for the same reason. (Note that this would effectively make the protection for transitory communications under subsection (a) absolute.)
* Get rid of those portions of subsection (b)-(c), and (g) regarding the removal of material on sites (since it might not be possible to put it back up, if removed), but expressly limit the removal of access to that material which is in fact stored on the system or network of the service provider.
* Get rid of subparagraph (c)(1)(A) and subsection (d)(1); ISPs should not be acting sua sponte on behalf of rightsholders. Copyright is enough of a subsidy for authors already; let them shoulder the costs of enforcement.
* Change "responds expeditiously" in subparagraph (c)(1)(C) and subsection (d)(3) to "responds reasonably expeditiously," for just because something is a world-ending emergency on the part of the copyright holder, that does not mean that everyone else should have to give it the same priority.
* Get rid of the ability of the Register of Copyrights to levy a fee on parties designating agents in subsection (c)(2); the only time that the Copyright Office should charge anyone a fee for anything is a token dollar for copyright registrations, just so that they're not free. Otherwise, the copyright system should be paid for out of the general fund. It's meant to promote the progress of science, and Congress has broad tax powers; no reason for any sort of user fees for the purpose of actually raising revenue.
* Get rid of paragraph (d)(3); service providers in the business of information location should not be obligated to engage in censorship on behalf of copyright holders. If there is infringing material out there, let the copyright holders have that taken down directly; the search engines' links will then become invalid on their own, and get removed as so much useless clutter. Paragraph (d)(3) is yet another provision that strikes too closely at free speech for my tastes.
* Revise subsection (e) such that any employee of a service provider is treated as being separate from the provider itself. As knowledge is no longer a factor under subsections (c)-(d), get rid of everything about that in (e). I fail to see why this should be limited to higher ed.
* I don't have a problem with the general idea of subpoenas in subsection (h). However, it needs more protection for privacy and for inappropriate requests. Subpoenas should only be issued under subsection (h) if a copyright infringement lawsuit has been filed with regard to the complained-of material, and the subpoena should only be issued if a judge reviews and approves of the request. The service provider should be required to provide timely notice of the subpoena request to the user, if possible, so that the user can timely object to it, and the service provider should not be permitted to respond to the subpoena until an attempt to quash it has either concluded in failure or has not been timely undertaken. And some teeth should be added to the sworn declaration requirement of subparagraph (h)(2)(C), such that there is a cause of action available by either the service provider, user, or both, probably with money damages, injunctive relief, and fees and costs, in cases where the information obtained by such a subpoena is used for purposes other than a copyright infringement suit.
* Subsection (c)(3) -- everyone's favorite -- should probably be modified by borrowing some good ideas from Rule 11. And what copyright holder could argue with such well-established safeguards? I'd rewrite this subsection as follows: (please forgive the poor formatting)
(3) Elements of notification.--
(A) A notification of claimed infringement under this section must:
(i) Be a written or electronic communication provided to the designated agent of a service provider;
(ii) Identify the complaining party, and provide information reasonably sufficient for the service provider to contact the complaining party, such as an address, telephone number, or electronic mail address;
(iii) Either:
(I) Identify the complaining party as the copyright holder suffering the alleged infringement; or
(II) Identify the copyright holder(s) suffering the alleged infringement and identify the complaining party as being authorized to act on behalf of the copyright holder(s) in this matter;
(iv) Identify the copyrighted work(s) claimed to have been infringed with specificity;
(v) Identify the material claimed to be infringing, access to which is to be disabled, with specificity such that the service provider can reasonably locate the material;
(vi) Include a certification that to the best of the complaining party's knowledge, information, and belief, formed after an inquiry reasonable after the circumstances:
(I) The information in the notification is accurate;
(II) The notification is not being presented for any improper purpose, such as to harass, limit speech, invade privacy, or gain unfair commercial advantage; and
(III) The claim of infringement is warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and
(vii) A physical or electronic signature of the complaining party.
(B) A notification which is in some respect defective with regard to the provisions of subparagraph (A) shall be of no effect.
(C) If a defective notification substantially complies with the requirements of clauses (A)(i)-(ii), the service provider shall not be eligible for the limit on liability under subsections (b)-(c) unless the service provider timely takes reasonable action to notify the complaining party of the defects in the notification, how the defects may be cured, and how the notification may be resubmitted.
* Subsection (g) should include a provision that requires the service provider to notify, if reasonably possible, the user responsible for the allegedly infringing material about the takedown notice, and that the user can file a counter notice, and what the effect of the counter notice is. The means to enforce this should not be the weak tea of liability for removing the material, but probably the usual panoply of remedies: actual, and statutory damages, costs and fees, injunctive relief, etc. After all, the provider is mostly going to be concerned about lawsuits coming from the copyright holder for infringement; complying yet failing to respect the user as an equal participant in this altogether absurd process is hardly going to get the copyright holder to sue.
* Paragraph (g)(2) should set the time limit for restoration of access to the material once the counter notice has been sent to however long the time was between the original notice and the actual takedown; whatever amount of time that is, it's only fair to be at least just as fast on behalf of the user.
* Paragraph (g)(3) concerning the contents of the counter notice should, mutatis mutandis, follow the new notice requirements of paragraph (c)(3).
* And lastly, I think, subsection (f) should be changed, such that if the complaining party or user knowingly falsely certified their notice or counter notice, they're liable to the other party and the ISP (whose time was wasted) for damages, etc. Also, if they negligently wrongly certified their notice or counter notice, they're liable, though less so.
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Thanks for taking the time to share your opinion and suggestions on the matter.
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All that says is the process has been made so expensive by complexity that only the very deep pocketed few can afford to play. As one person mentioned, that "Warm Kitty" poem should have been public domain, yet a compilation which included it resurrected its copyright, stealing it back from the public to potentially enrich its rightsholders close to a century after it'd been written. "Big Bang Theory"'s creators thought they'd done what needed to be done, yet they now need to defend themselves anyway. Insane.
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Of course. Because it's not really content creators that are creating the first pile. It's the big middlemen that are threatened by obsolescence by the Internet; putting burdens on platforms and restricting competition is great for them. They get the content creators that are working for them, whose only understanding of the issue is what the middlemen tell them, to speak up for them in order to give the impression that they're fighting for content creators when what they really want is to keep their options as restricted as possible.
And it would be great if content creators that are already taking advantage of alternative platforms, or otherwise actually do understand how these issues actually affect them, would speak up. Preferably ones that don't rely too much on fair use (which is a depressingly large percentage of Internet creators that aren't part of the legacy system), since the legacy players could easily portray them as moochers that should be killed off.
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DMCA takedowns are frequently used to takedown mashups and Fair Use videos. It results in less creative output being released for public consumption as a result.
Your examples are anecdotal at best and outright falsehoods at worst.
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Your specific scenario does not hurt the artist. That very same technology that you are describing that YouTube has deployed? It will hurt many artists in exactly the same way that the DMCA already does, but even more.
Just search this site for examples of creators who have been locked out of their own content because of bogus DMCA claims. Here is one story to start you off.
Notwithstanding, what happens if the artist subsequently allows someone to post a portion of her film to YouTube? Or if someone posts a portion of her film in a manner covered by fair use? Should YouTube take the content down in this case? Do they need enough copyright judges* on staff to review the hours of footage published each second to ensure that each video is non-infringing?
*- at first I wrote lawyers here... but copyright lawyers are qualified only to argue whether a use is infringing of not. It takes a judge to determine the case.
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Well, there are two problems here.
1) YouTube doesn't know it's her indie film. Apparently about 300 hours of video is uploaded to YouTube every minute now. It's not possible for them to hire enough human beings to positively identify everything that's uploaded before it becomes available for people to watch.
YouTube tries to use automated tools to do this, which is actually bad, and we'll get back to why that is. But the tools aren't that great, and suffer from a significant amount of false identifications. Sometimes a video is misidentified as being something that isn't supposed to go up, when in fact it's perfectly innocent; sometimes a video is misidentified as something that is innocent, and which can go up, even though it's actually not supposed to. This not only happens because the tools are imperfect, but also because people uploading material to YouTube are actively trying to get around them all the time, and so far, are winning that fight. It is an amazingly hard problem.
2) As the old Franklin Mint ads said, basically, the past is not a good guide for the future.
On Monday, the indie filmmaker sends a communique to YouTube informing them that no one is authorized to post her indie film. On Tuesday, she authorizes someone to post her indie film; copyright law allows this to happen through as little as an implied license, with nothing written down, nothing filed with any authority. On Wednesday, the authorized party posts the indie film to YouTube.
YouTube doesn't know about what happened on Tuesday. Should YouTube prohibit the perfectly legal posting of the film on Wednesday because of what it was told on Monday, which is no longer accurate? Or should it allow the posting, and then timely respond to the copyright holder if necessary? The latter is the better option.
The one person in the best position of anyone in the world to tell YouTube whether or not an upload is authorized is the copyright holder. YouTube has no way on Earth of knowing whether an upload is legal or not; the copyright holder has a much better chance of knowing, and of having a reason to keep YouTube in the loop. The duty should fall on them.
3) Getting back to why automated tools are bad, they favor the big interests (network TV, the major studios) over smaller ones, and they drive the online video industry towards monopolies, since small video sites (which might be better partners for the indie filmmaker) can't afford to match YouTube's efforts in this regard.
This may seem unfair to authors, but it's not; they've been given a great privilege in the form of a copyright. The copyright holders are the best situated to know how much they want their works protected, and are the only parties that enjoy any benefit from that protection. It's more appropriate than any other option for them to shoulder the burden. If the copyright is really valuable, it may suffer more attempts at infringement, but also provide more revenue that can be used to police it. That's better than the other option, which is a work so obscure that no one even gives enough of a crap about it to pirate it, much less buy copies.
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The idea behind the article is that shifting the burden of policing copyright to the online services rather than the copyright holders will make starting a new service so onerous that few people will even try. You could only do it if you dealt directly with the major copyright holders (which is just a handful of companies in the world). Companies will go from "post anything and make the copyright holder take it down" to "we only post things that copyright holders approve of." There will be fewer options for artists to release their work, and the few options that are available could easily dominate the market.
This might mean that for an artist to release something, they'll be forced to hand their copyright over to one of these entrenched companies for the privilege since they control the limited distribution options, just like before the internet came along. Your indie filmmaker would only be able to get their film released by selling it to a major distributor. This is exactly what middle-man companies want - to be the only players in the game - and that sounds pretty anti-artist to me.
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An example is Megaupload. Megaupload offered artists an alternative way to fund their works. But the artist hating IP extremists don't like that. Their hatred for megaupload shows how much they hate artists.
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Re: Artists/Content Creators vs. Publishers/Platform Owners
But then there are all the OTHER players:
"Total number of Websites - Internet Live Stats
www.internetlivestats.com/total-number-of-websites/
After reaching 1 billion websites in September of 2014, a milestone confirmed by NetCraft in its October 2014 Web Server Survey and that Internet Live Stats was the first to announce... the number of websites in the world has subsequently declined, ..."
"How Many Websites Are There? - The Atlantic
www.theatlantic.com/technology/archive/.../how-many-websites.../40815...
The Atlantic
Sep 30, 2015 - “This is due to the monthly fluctuations in the count of inactive websites,” according to the site. “We do expect, however, to exceed 1 billion websites again sometime from late 2015 to mid 2016.” The weird thing is, most of these sites exist without being seen."
I create my own original copyrighted content, as well as buy or license copyrighted material to use in my creations, utilize lots of creative commons content, andown multiple platforms/websites on which I post content, most of which have in excess of 5,000 posts on each, totaling hundreds of thousands of posts, articles, videos, and images. In addition, ALL those posts/videos have been reposted/embedded on at least 10-100 other Web 2.0 sites. ALL my posts have video content (many with the written YouTube descriptions embedded along with the video).
Suffice it to say I understand this HUGE legal problem from both a creator's and platform owner's perspective. Also, both my sisters are professional artists who make ALL their income from their creative works.
But the bottom line is that this current law provides more protection to real "criminals" than anyone else; does nothing to add to the bottom line of artists/creators; is extremely costly to artists/creators trying to protect their works; and is extremely costly to platform owners who are constantly burdened or simply must ignore nuisance complaints from creators who are ignorant about the law and constantly harass platform owners who lawfully publish their works under the terms of service and licensing the creator lawfully extended to the publishing platform.
The law currently PUNISHES both sides, with little gained for creators/artists who are ignorant about the law or who cannot afford legal representation... which is most of them... and many losses for platform owners who can't afford legal representation either.
So who consistently benefits from the law? Only attorneys.
Sometimes it does NOT pay to create a law that CANNOT be fairly enforced on the masses and is ONLY enforced by attorneys by those who can afford to hire one.
So when you have a conundrum like that wreaking havoc on your business, it's your choice to stress over it or not.
I long ago made that one of my ZERO priority issues. Not worth the time and trouble as a copyright holder.
As a content producer and platform owner, I police my own works.
And I don't expect other platform owners to be responsible for thieves republishing my original works on their platforms.
Just because the world has opened up publishing platforms to all of us on a HUMONGOUS scale does NOT mean I should expect every platform publisher in the world to cowtow to my wishes and demands.
That's a surefire costly early-death-stress-syndrome I'm not willing to suffer.
Just my observations, experience, viewpoint, and choices...
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Authority?
Isn't that something Congress would have to implement by statute?
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The numbers add up
https://www.google.com/transparencyreport/removals/copyright/
67 million requests to remove, and of those not removed, most of them (you can go look at the individual cases) are because of multiple reports. The average us 1000 URLs per domain, which gives you a very good idea that the vast majority of DMCA complaints are about a very small subset of the internet.
So when you talk about "unintended" consequences, just remember that they are relatively exceptional cases in a sea of valid claims. Perhaps the real issue here isn't the "unintended" consequences but instead the fact that so many notices are required at all. Business models that are predicated on the notice system would fail rapidly if they could no longer hide behind this safe harbor system, and most of this problem would disappear pretty quickly.
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Re: The numbers add up
The DMCA and, more broadly, the current state of Copyright law grossly favors middlemen and lawyers to the detriment of almost every content creator and consumer out there. While I acknowledge societal value in Copyright, its current form is parasitic and a net loss to both culture and the economy.
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How do those numbers compare with the number of contested take downs? You know, where the so called pirate says the accusation is false.
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Business models like remixing, parody and news?
What about all the cases where two parties create something building off the same public domain (or otherwise legitimate/licensed) source, and one party kicks the other party's content off the internet because they think it's infringing?
What you're suggesting may be possible if every creative work was spun from whole cloth, and never incorporated any element from any other creative work ever. In the world we live in? You're spitting into the wind.
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Re: The numbers add up
This is just speculation on your part and you haven't provided me with anything to support this claim. Why should I believe you other than just because you said so? The legal system should certainly not encourage actions against the accused just because you personally and arbitrarily think that most accusations are valid.
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ahahahahahahahahahahahaha
You've had 15 years to show your business model theories "help" creators.
Surprise! They don't.
Move on with your life and encourage the rest of your SillyCon Valley buddies to try and actually make something worthwhile other than invasive advertising schemes.
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Or maybe this: https://youtu.be/gBM6QkG0xeY?t=12s
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-Stop treating your customers like crap, an unhappy customer is one that is likely to go elsewhere.
-DRM doesn't do squat to impede piracy, the only people it affects are paying customers, so stop infecting everything with it.
-Speaking of piracy, stop spending ludicrous amounts of money trying to 'fight' it, instead spend that money on convincing pirates to buy. Most of them will gladly switch, if you offer your product in a reasonable manner(price, availability, minimal hassle).
-Focus on the scarce. Sell non-scarce stuff all you want, but the real money makers and value are the scarce, whether that be customer service, limited edition versions, or custom stuff from the creator(Trent Reznor made $750,000 in two days selling limited edition version of an album that was available for $5).
-Related to the above, give people a reason to want to pay you. Anyone can offer a product and/or service, and unless you manage to be the only one in a given field, there's always going to be other options for would-be customers, so you need something to make you stand out. Get involved, such that people don't feel like they're buying from a faceless company/band/author, but instead buying from a real person, and people will be more invested and likely to buy.
Those are just a few of the ideas on how to increase success that have been discussed on TD over the years, and if you haven't seen them before, you're either new to the site, or haven't been looking.
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Netflix was already hugely successful before it started making original stuff.. Otherwise they wouldn't have been able to make original stuff.
Here is some info about Netflix
https://en.wikipedia.org/wiki/Netflix
Their original content helps them stand out from startup competition, but it's hardly their core business.
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Speaking of Netflix however, may I draw you attention to the following, since you apparently missed it, and it relates to just why Netflix is successful:
-Speaking of piracy, stop spending ludicrous amounts of money trying to 'fight' it, instead spend that money on convincing pirates to buy. Most of them will gladly switch, if you offer your product in a reasonable manner(price, availability, minimal hassle).
Netflix offers a decent selection, it's widely available, it costs a reasonable amount, and it's easy to use. If the company has trouble at times that's largely because the companies that it's competing with do everything they can to hamstring it, by demanding high licensing fees when they're not pulling their titles entirely.
As for 'out of business'? They had a rough period in '12-'13, but if their stock price is anything to go by it's been pretty much nothing but up and up for the past decade, hardly what you'd expect from a failing company.
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No automation
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Re: No automation
A false DMCA takedown is perjury! If the courts would enforce that, this mess would disappear immediately. They don't bother, hence this mess. The solution's already there, just ignored.
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Re: Re: No automation
As it stands though there's penalties for only one side, the recipient, who faces legal liability if they don't take down things on mere accusation alone. The sender faces no penalties at all, no matter how obviously bogus their claims are.
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Re: Re: No automation
No it's not. The perjury clause is only if you claim to be someone you are not. For instance if I claim to be Disney and I'm not then that's perjury. If I claim to have copy protections over a work that I don't and in fact Disney has control over said work that's not perjury.
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Re: Re: Re: No automation
I could be mistaken, but my understanding is the submitter is attesting that the details claimed are true to the best of their knowledge, on penalty of perjury.
No, and as Rightshaven found, it's an invalid claim in the first place over which they had no right to complain. Only the rightsholder has the right to sue for infringement, not some tool that the rightsholder hired to do it for them.
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Re: Re: Re: Re: No automation
"This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, copyright holder Bob need only claim a good-faith belief that neither he nor the law has authorized the use. Bob is not subject to penalties for perjury. In contrast, to get access to content re-enabled, Alice must claim a good faith belief under penalty of perjury that the material was mistakenly taken down."
https://en.wikipedia.org/wiki/Online_Copyright_Infringement_Liability_Limitation_Act
The law is one sided and unbalanced in favor of privilege holders. Do you want to know why? Because it was written by middlemen for the benefit of middlemen and not for the benefit of artists (ie: those that get their works falsely taken down) and not for the benefit of the public.
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"As we've noted many times in the past, there is almost no real punishment for filing false takedowns. The "penalty of perjury" language appears to only apply to the question of whether or not the person filing the takedown actually represents the party they claim to represent -- and not whether the file is infringing at all, or even whether or not the file's copyright is held by the party being represented. "
https://www.techdirt.com/articles/20131118/02152325272/warner-bros-admits-to-issuing-bogus-takedown s-gloats-to-court-how-theres-nothing-anyone-can-do-about-that.shtml
Yet I still see commenters getting it wrong over and over and over.
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Re: Re: Re: Re: Re: Re: No automation
Well geez, I'm sorry. Have I mentioned I'm not a copyright lawyer? I promise never again. In consolation, I offer this:
From this layman's point of view, this very much describes the situation for Joe Sixpack today. We just want to keep on doing what we've always done, enjoying our culture and sharing it with our fellow travelers, but all this *legal shit* has been intruding on that dragging otherwise innocent nobodies into horrible ordeals with brand new laws that claim we're thieves and hijackers all of a sudden. What? If that's true, why aren't I rich?
I'm not even a pirate/infringer (I boycott!). I'm amazed I understand this stuff as much as I do. I'm amazed I even want to understand it. Blecch! Yuck! Icky poo, yuck! I hate it that deep pocketed special interests have made it necessary for us to learn this shit just to protect ourselves. A quarter of a million dollar fine for copying a DVD?!? Are you nuts?
Welcome to my nightmare.
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If that was you apologizing to me, don't bother; not necessary. If this stuff was too stressing for me, the solution would be easy; ignore the problem. :-)
I'm just trying to help add to the understanding of this mess, which we all need to attain, in order to move onward to solving the problem we share. I do wish it didn't look quite so much like imperial Romans stirring the entrails of sacrificial animals (which it does).
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I'm not a security expert, but...
I'm not a cryptologist, but...
I'm not an evolutionary biologist, but...
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A Theorem
(e.g., NSA/spying, FCC/regulations, Wall Street/trading).
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Re: A Theorem
FTFY
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What other departments will you abolish as president?
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So please stop pretending most artists actually own the content they created!
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I know nothing about what artists do with their creations other than what I experience in the world around me. I know nothing about what corporations do with their ill gotten gains other than what I experience in the world around me.
I do know that I do not like being falsely accused of copyright infringement, or any other false accusations. The present method which artists/copyright holders use is flawed and results in many false positives, but they do not seem to care about the collateral damage they encourage because - they need to get paid.
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Give themselves enough rope and copyright holders will not only hang themselves, but string along everyone else they can find before jumping off the ledge without the rope secured to anything else.
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The problem is the bolded part. If they were just shooting their own feet, then I'd be content to sit back and enjoy the show. It's the fact that they also insist on affecting as many other people as possible that causes problems.
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Google does not host the entire internet, yet is often buried in notices for content they have no control over. Google must spend time & money processing claims that are often clearly laughable and wrong. If Google doesn't handle these notices, they face liability & wasted costs fighting in court over improper notices. If Google shows that 999 of a 1000 line takedown are bogus, the sender faces no liability. In the absence of imposing any burden on senders, the floodgates are opened. There is no downside to sending flawed notices, and others targeted with these massive bad faith claims do not have the resources to check them for accuracy. This gives content holders unlimited veto power over anything they just do not like by merely claiming they had a good feeling they had the right to do so.
The largest stakeholder, who is often ignored, is the public. The public is at the mercy of notices that often can't even meet the merits of a Nigerian scam email, and those who are supposed to balance the system clearly have their thumbs on the scales to keep copyright holders (and their often lowest bidder shitty agents) from suffering any downside while the public can find their own creations removed with the only recourse being a long protracted legal fight few can afford (and have little hope of their costs being paid by the parties who illegitimately had the content removed).
Notice & Takedown is yet another piece of the very broken copyright system, written for another age for an alternate reality that does not actually reflect the real world.
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Rather than the claim being assumed to be genuine as soon as it's received, resulting in the content in question, the content is allowed to remain up so long as the one who posted it contests the claim. At that point, the original sender has the choice of either dropping the matter, or going legal, and at no point is the intermediary liable for anything, it's entirely between the two parties, the one that sent the claim, and the one that posted the content.
Without having to worry about liability for hosting, I imagine a great many claims that are made currently would not result in something being taken down, as instead of the completely one-sided 'incentives' there are currently, where they are plenty of incentives to take something down, but none at all to leave it up, there would be no incentive either way for the party providing hosting.
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Imagine a rights holder having to consider an up to $150K (& costs) punishment for copyfraud or ignoring fair use. Imagine if they also had to pay a fee for every faulty notice they send to a host, Google could stop selling advertising based on the current number of bogus takedowns they get for content not even on a server they own.
Copyright holders have rights, but the public is supposed to have rights as well under the law. If only they were willing to finally balance the rights under the law.
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My takedown notice
I make zero money from That Image (nor from Small Site at all). Even though Smsll Site did make 3 sales using My Image last December alone.
I did not even bother reading Who Requested That Takedown.
I am not interested in An Argument.
I am not interested in a Legal Battle.
I don't know if My Image has its copyright held by me.
I did not read the EULA. I never do.
Goliath always wins. David is an artist.
David lives far far away from the US of A.
Help me. Submit to that public enquiry.
oxox
@b
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Section 512 extensions IRL (Car Analogy)
Section 512 should be dropped in favor of audits and specific guidelines on private hosting companies to make sure they're not conspiring with the infringers, terrorists, pedophiles, etc.
And then grant them full immunity from contributory cases. No notice & takedown provisions, let the courts handle that.
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How about a stautory penalty for bogus DMCA notices?
If you are not the copyright owner or registered agent. If you have no reason to believe you actually own the rights to the material you are falsely claiming to own.
How about a HUGE punitive fine if it is brazenly obvious that you don't own it. Such as the material is a recording of nature sounds made by the person who uploaded that recording.
How about a punitive fine if it is clear that you are filing a DMCA takedown for a non copyright purpose. Such as to silence speech. Either the speech contains a fair use clip, or you don't even claim to have a copyright on the material at all, you just want it taken down with super powers.
How about a punitive fine, AND DAMAGES if you use the DMCA to broadly overreach in your takedown. There was an infringing clip on YouTube, so all of YouTube should be taken down. Now apply that to any other blog, or news site, or even commercial site that is not as well known.
Then there are the more gray areas such as fair use. If something is obviously fair use, then there should be a statutory fine, and possibly damages. Criticism is the most obvious fair use. And Parody. And news reporting. If these are the obvious uses of the material, then there should be a statutory fine and possibly damages for the takedown.
Maybe there should be a six strikes for DMCA abuse?
These might a be a good starting point for some DMCA reform.
With the great super powers of the DMCA comes some great responsibility.
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think this is were it's headed.
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More liability for those not responsible for the problem!
Less liability for those who abuse the system!
More power to condemn!
Less requirement to justify why we condemn!
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Taking down someone's work under the DMCA, (which is a law,) by definition constitutes a legal remedy against an accused perpetrator. In any other context, punishing someone for breaking the law without a trial, on accusation only, is considered a legal abomination. Why does common sense go straight out the window when copyright is involved? It violates the concepts of Due Process and the Presumption of Innocence, both of which American jurisprudence is supposed to hold sacred and inviolable.
Under no circumstances should an allegedly copyright-infringing work be taken down without an actual guilty verdict.
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