How Existing Wiretapping Laws Could Save Apple From FBI's Broad Demands

Patreon Moves To Give Users A Chance To Respond To DMCA Notices Before Taking Down Content

from the good-move dept

Wed, Feb 24th 2016 3:49pm — Mike Masnick

We've seen all sorts of problems with the DMCA's notice and takedown system that is frequently abused. Many companies, either because they want to avoid any risk of liability or because they don't actually understand the details of the law, resort to a stance of automatically taking down anything upon receipt of a takedown notice, no matter how bogus. Some companies have gotten much better at reviewing the details of takedown notices before agreeing to just take down the content. However, some are going even further in trying to find that right balance. A little over a year ago, we wrote about Github moving to a system whereby the company will notify users of DMCA notices first, and give them a chance to modify the code before it's taken down.

Now it appears that the (really awesome) crowdfunding site Patreon is doing something similar, notifying users before taking down any content:

We do a lot of user research here at Patreon to improve our product, and even our non-product services. When asked about DMCA notices, one thing that many creators mentioned is that they just wanted to be warned and have the option to act on it themselves instead of having an automated system remove the content.

As a result, we are giving creators 48 hours to handle a DMCA notice on their own before we step in to take action ourselves. This does increase our legal risk, as the “expeditious” removal speed required by the DMCA is not very clear, but we feel very strongly about warning our creators and giving them a chance to act.

Sometimes a DMCA notice requires removal of specific content on a creator’s page. In that case we tell the creator that they have 48 hours to remove the content themselves before we will remove it for them.

As I noted when Github made its change, this move is great, even if it's a little surprising. We've long advocated for a system that is a "notice and notice" system, rather than a "notice and takedown." Under such a regime, things would act much more like the way Github and Patreon are now handling things -- giving the user notice to either make changes or counternotice the request before the content is actually taken down. As Patreon's lawyer notes, this does increase the liability to Patreon, because someone certainly could sue, and say that the 48 hours doesn't meet the DMCA's "expeditious" requirement for removals. However, if more companies move to a system like Patreon's and Github's, perhaps we could move the norm from today's notice and automatic takedown, to one that is effectively "notice and notice," which would lead to many fewer malicious takedowns.

Patreon is also doing its best to help users understand how to properly provide a counternotice (also something that Github did), but even going a step beyond that, pointing users to discounted legal support if they want a lawyer to review a counternotice:

We also forward them the DMCA notice we received and specific instructions on how to send a counter-notice. Sending a counter-notice carries a lot of legal risk for creators, so we have partnered with attorneys who represent creators to offer a guaranteed flat rate of $350 for a counter-notice review to take some of the uncertainty out of the process. If you aren’t using an attorney, then counter-notice instructions can be confusing, so we’ve made every effort to simplify them.

While you might assume that not many people will want to pay $350 -- if it's a Patreon user who's making a lot more money than that, it could obviously be well worth it.

One other feature of Patreon's new DMCA policy that's pretty interesting, and as far as I know, totally unique in the space, is to actively help users who the company feels it needs to takedown their entire page, but who it doesn't feel are engaged in "blatant piracy," to immediately set up a new page:

Unfortunately, in other cases a DMCA notice requires removal of a creator’s entire page. When the notice is for derivative works, and not blatant piracy, we are always happy to have the creator come back to Patreon with a new page. Many creators take their first steps by using others’ content as a starting point. They sometimes create content that isn’t protected by fair use, but still requires huge amounts of hard work and talent. In those cases, we encourage them to come back to make a new page and use those skills to create original works.

To help facilitate this we also send them a CSV file of all of their patrons and encourage them to create a new Patreon page immediately so they can start migrating patrons in the 48 hours before we take their page down.

I will say that this part, at the very least, has me a little confused. If the work is that unique, then there should be a pretty strong fair use argument in response -- and the DMCA wouldn't "require" the removal of the page. But it is a legally wishy-washy area, so I can see why Patreon might take this stance. Of course, as we saw with the recent Cox/BMG legal fight, the reason Cox lost its DMCA safe harbor protections was because it would automatically help to bring back on customers it had cut off. That's a slightly different situation, because it involved the "repeat infringer" policy, rather than a response to a single DMCA takedown request -- but again it shows that Patreon is at least shouldering some increased legal liability in the belief that its users deserve a better overall experience than the default manner in which the DMCA process encourages companies to act.

Kudos to Patreon for taking this step, though it really demonstrates (yet again) how out of step with reality the DMCA is today, in that such user-friendly policies actually put the company at greater legal risk.

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Filed Under: censorship, copyright, counternotification, dmca, fair use, notice and notice, notice and takedown
Companies: patreon

28 Comments

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Anonymous Coward, 24 Feb 2016 @ 4:24pm

Do as we say, not as we do. Right, Mike?

https://www.techdirt.com/dmca.php
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Anonymous Coward, 24 Feb 2016 @ 4:25pm

"Sending a counter-notice carries a lot of legal risk for creators, so we have partnered with attorneys who represent creators to offer a guaranteed flat rate of $350 for a counter-notice review to take some of the uncertainty out of the process."

Hmm. Sending a counter-notice does incur some legal risk - you are submitting under penalty of perjury, after all. I suppose a lawyer could help you make sure that what you say is accurate, and will warn you away from trying to claim your upload of all 7 Star Wars movies is fair use because you included one comment. But remember - when you file a counter-notice you're also giving the other party your name, address, and phone number, and are agreeing to the jurisdiction of a federal court. And that $350 won't begin to cover a lawsuit. (Although even if you didn't file a counter-notice, they could just subpoena your information anyway if they wanted to sue you badly enough.)

"However, if more companies move to a system like Patreon's and Github's, perhaps we could move the norm from today's notice and automatic takedown, to one that is effectively "notice and notice," which would lead to many fewer malicious takedowns."

After a counter notice, the provider is immune from liability only if it "replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice". So I think that to avoid liability they'd still have to take it down even after getting a valid counter-notice, until those 10 business days were up. Unless we change the law, of course.

And even if 48 hours to take something down is *normally* fine, I'm not so sure the courts would still find it to be fine if the provider had taken the time to identify and notify the other party but had not taken the time to remove the content.
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Anonymous Coward, 24 Feb 2016 @ 4:26pm

Kudos Patreon!

Now if only it'd rescind their recent-ish ban on a few categories of legal but culturally deviant creative works, I'd say Patreon would be the gold standard of free speech crowdfunding platforms.
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Anonymous Coward, 24 Feb 2016 @ 4:27pm

#WTFU
This is something Youtube really needs to do because holy shit are things blowing up right now.
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Anonymous Coward, 24 Feb 2016 @ 4:29pm

Re:
Did you have a point or...?
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Anonymous Coward, 24 Feb 2016 @ 4:30pm

Re: #WTFU
Yeah. The MAFIAA takeover of YouTube has bled so much value out of the platform. I wonder how many more people YouTube has to piss off before a competitor could potentially take a notable portion of their viewerbase away.
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Mike Masnick (profile), 24 Feb 2016 @ 4:36pm

Re:
Huh?
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Whatever (profile), 24 Feb 2016 @ 5:32pm

Here's what I don't get: The DMCA basically allows for this, the provisions regarding speed of removal in the DMCA law are vague. Since you are talking about user supplied content, it would seem reasonable to have a very short delay by which the person can be reached and an assessment made, with either a counter notice or the removal of the content.

The $350 pricetag is actually pretty good if the lawyer actually does lawyer work on the thing and doesn't just sort of rubber stamp it. If you are claiming fair use (as opposed to having paid a license fee for the content or have other legal arrangements) then a lawyer's help would be a good thing to have. No matter what is said here and other anti-copyright sites, claiming fair use isn't a straight forward slam dunk.

Hopefully they can get most things resolved in their short window and not have to deal with the lawyers!
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DrCarl (profile), 24 Feb 2016 @ 8:03pm

Wow
Patreon is treating the creators (and their audience) almost like the customers. I wonder how that happened.
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Anonymous Coward, 24 Feb 2016 @ 9:35pm

Re: Re: #WTFU
It's not even the MPAA/RIAA takedowns that are really bad on (not)you(r)tube (although there are bad ones, like claiming ownership of original audio of birds tweeting), it's the game developers going after bad reviews via DMCA that's really bad.
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Anonymous Coward, 25 Feb 2016 @ 12:52am

Re:
I'm pretty sure it's a lot more about star wars fan-art and sculptures than it is about uploading the 7 movies, but whatever.

As a side note I've been amused for quite some time at the legal state of "derived" works (basically fanart).

The derived work is indeed infringing, but that does NOT mean the owner of the original work has copyright over the infringing derivative work.
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PaulT (profile), 25 Feb 2016 @ 2:03am

Re:
"it would seem reasonable to have a very short delay by which the person can be reached and an assessment made, with either a counter notice or the removal of the content."

Yes, it is. Which is why the story is largely about companies actually doing this rather than going for instant takedown. It's sad that this is news, and that there could still be legal liability for those trying to adhere to the DMCA in this way, but that's what you get with such a crappy law.

"No matter what is said here and other anti-copyright site"

No matter how often you repeat the lie, this site isn't anti-copyright. They simply recognise that the current system is broken. I don't believe I've ever seen a writer here advocate for the removal of copyright, only that the current system be fixed.
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Anonymous Coward, 25 Feb 2016 @ 4:39am

Re: Re: Re: #WTFU
It's that and entire groups that have sprung up around falsely claiming content for the ad revenue and then issuing takedown when challenged.
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Anonymous Coward, 25 Feb 2016 @ 5:03am

Re:
Did Mike take down your post without informing you first?
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Anonymous Coward, 25 Feb 2016 @ 5:56am

Re:
So users have to pay no lesas than $350 to have their content remain if someone else falsely decides he doesn't like the content and wishes it to be removed. And the user/artist doesn't get the same legal protections as the person issuing a takedown.

Since this is user generated content, as you say, this is not acceptable.
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Anonymous Coward, 25 Feb 2016 @ 6:03am

Re: Re:
And what if a user uploads a lot if non-infringing content and receives many bogus takedowns. Just look at all the bogus requests Techdirt receives. $350 + $350 + $350 ... adds up fast, especially for the poor poor user and artist that the pro-IP shills here purport to protect. The law does a very poor job at protecting artists and aims to protect distributors and those that want content removed falsely.
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Anonymous Coward, 25 Feb 2016 @ 6:24am

Re:
The $350 pricetag is actually pretty good if the lawyer actually does lawyer work on the thing and doesn't just sort of rubber stamp it. If you are claiming fair use (as opposed to having paid a license fee for the content or have other legal arrangements) then a lawyer's help would be a good thing to have.

It would help it people issuing the takedowns consulted a lawyer about fair use before the issued a takedown, but then that would harm their profits. Forcing the costs onto the individual damages fair use, as it costs the issuer nothing, but costs discourage the challenging of notices.
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Anonymous Coward, 25 Feb 2016 @ 7:10am

i wonder how quick and how much the entertainment industries will be paying Congress members to stop this 'blatantly unfair' practice? i mean, the industries have had 20 years of abusing the system and the law and it sure as hell wont want to stop now, not for any reason!!
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Ninja (profile), 25 Feb 2016 @ 9:10am

Re: Wow
I wonder how that happened.

They haven't been introduced to the mafia. I mean, the MAFIAA.
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Anonymous Coward, 25 Feb 2016 @ 10:08am

Re: Re:
errr ... no less than *
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Anonymous Coward, 25 Feb 2016 @ 10:13am

Re:
and why should it be reasonable for user generated content to require a very short delay as opposed to other types of content? Why should user generated content be considered legally less important and be subject to less legal protections than other types of content. By other types of content you mean content by big incumbent distributors no doubt. Those that you are really defending, not the artists.

This is more evidence of who you really represent. Not the users/artists, not the little guy, but the big guy, the big distributors. The artist should receive little legal protection, the big distributors are the ones that should receive all the protection.
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Anonymous Coward, 25 Feb 2016 @ 10:18am

Re: Re:
It's amazing how Whatever just devalues user generated content as if the content and the artists just aren't important and are deserving of less legal protection. Shows his true colors, who he really represents. He doesn't care at all for the artists or the art or the public only for the distributors. That's who he's here to represent.
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Moonkey, 25 Feb 2016 @ 1:26pm

Re: Re:
Did you take down your own sense before posting first? Or was it that you never had any to begin with?

You trolls are atrocious. I've seen more effort used before, did you guys run out of ideas?
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Ed, 25 Feb 2016 @ 2:37pm

The courts are deciding the meaning of "expeditious"
"this does increase the liability to Patreon, because someone certainly could sue, and say that the 48 hours doesn't meet the DMCA's "expeditious" requirement for removals"

It seems to me that the courts are in the process of deciding the meaning of "expeditious". Based on average reasonable FOIA response times, six months of so should be seen as blindingly fast.
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Anonymous Coward, 25 Feb 2016 @ 8:21pm

Re:
As compared to what you believe, in that no fair use exists?

Have a DMCA vote. It's the DMCA, surely you wouldn't complain.
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That One Guy (profile), 25 Feb 2016 @ 9:29pm

Re: The courts are deciding the meaning of "expeditious"
Only when it comes to the government answering legal requests, when it comes to copyright anything beyond five minutes is generally seen as too slow because the entire country is funded by imaginary property(and only imaginary property), and anything that even potentially maybe has the chance to possible threaten that is a crime of the highest order.
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Bergman (profile), 27 Feb 2016 @ 4:21pm

Re:
So, you're saying that because Techdirt obeys they law, they don't obey the law? Huh?
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Bergman (profile), 27 Feb 2016 @ 4:24pm

Re: Re:
Normally not, unless the fanfiction author puts in a 'disclaimer' that specifically transfers ownership of the fanfic copyright to the owner of the work it is derived from.

There are tons of disclaimers out there that do exactly that, after all.
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