Bogus DMCA Takedown Targeting Indian Copyright Blog Demonstrates The Problems Of Notice And Takedown

from the censorship-in-action dept

If you're unfamiliar with it, the SpicyIP blog is a wonderful blog covering issues related to copyright and patents in India. We've linked to it a bunch over the past decade. And now it's going through something of a rite of passage for sites on the internet: the absolutely bogus takedown notice. In this case, it was informed by Google that a certain page on the site was to be de-indexed following a DMCA notice claiming that SpicyIP was infringing on the copyrights of Saregama, a large Indian music label. The DMCA notice, helpfully found at the Lumen Database, shows that the organization had sent a list of 99 URLs that it claimed infringed on:

The sound recording or other musical works /song titled APNI TO JAISE TAISE sung by KISHORE KUMAR written by PRAKASH MEHRA and music composed by KALYANJI ANANDJI being made available for streaming and/or download without license/permission from Saregama India Ltd.

Out of those 99 URLs, SpicyIP's, was definitely one. Except that SpicyIP URL was clearly not at all infringing. It was, instead (as you might expect) an analysis of a copyright dispute over the Bollywood song in question. So, at least they identified the right "song" but nothing in a blog post discussing a legal copyright dispute magically makes that blog post infringing itself. SpicyIP rightly notes just how problematic this notice-and-takedown process can be in leading to outright censorship:

Even if SaReGaM ‘correctly’ identified 98 infringing links, is the takedown of a lawful post a legitimate casualty to the process? What if the post was a criticism of SaReGaMa’s or Google’s policies, or critical of the legal process?

The present instance is the result of the US Digital Millennium Copyright Act, (S. 512) which implements a ‘notice and takedown’ regime for intermediaries to remove copyrighted content. The provision rests intermediary safe harbour for publishing putatively infringing content upon the expeditious removal of notified links, and subject to examining any counter-notice, explained in more detail here.

The Copyright Act (S. 52) and Copyright Rules (R. 75) in India, incidentally, have a similar procedure, which creates a ‘notice and takedown’ regime for intermediaries which host ‘incidental or transient’ links to copyrighted content, which includes a counter-notice mechanism with the right to reinstate the content in the absence of a court order within 21 days. Unfortunately, it is unclear what intermediaries fall within the scope of this procedure, and in the absence of such clarity, the Delhi High Court has created a separate regime for certain intermediaries in Myspace v Super Cassettes. This judicially created regime is rather vague and does not include even the minimal procedural safeguards available under the Copyright Rules.

Regardless of the form of notice-and-takedown, it is apparent that placing an obligation to police copyright infringement on intermediaries create perverse economic incentives on private parties like Google or YouTube to over-comply and take down legal content. This is not solely attributable to the intermediaries’ practices themselves, but the policy and legal decisions which are created and are supposed to to strike a balance between access to knowledge and copyright protection in the digital age.

SpicyIP admits that "it's funny" that such a bogus takedown would target a copyright law blog, with people who can easily respond, but the same is not true for many other on the receiving end of such a takedown notice. As SpicyIP notes:

Yet, had it happened to a non-lawyer, or even someone who had ceased to take interest in their old blog, as it often does, it would result in the permanent removal of public information from an index which serves as the gateway to the internet, due to the ‘mistakes’ of private parties whose interests do not coincide with public access. What does this mean for the future of access to knowledge?

The blog further points out that this problem is likely to get worse, not better. We've already been talking about how Article 13 could soon require automated takedowns and content monitoring, India is exploring a very similar law to put more liability on the platforms to not allow any infringement at all. In such cases, the problem becomes much, much worse, and some content may never be allowed to be uploaded at all, even if it's perfectly legal.

Filed Under: copyright, dmca, notice and takedown, spicyip, takedown
Companies: saregam, spicyip

SoundCloud Troll Getting DMCA Takedowns Shows The Weakness Of Notice And Takedown Systems

from the dmca-terrorism dept

Much has been written at this point about the problems with various "notice and takedown" policies, including in the DMCA. Much of the problems arise from the DMCA's requirement that service providers "expeditiously" remove infringing material upon notice, which naturally leads to platforms erring on the side of removal versus taking a hard -- and manual -- look at the material in question to see if it's really infringing. This results in all kinds of takedowns of speech that is not infringing, typically as a result of human error, a dispute over the actual ownership of rights, a lack of recognizing fair use, or, perhaps most often, an automated system for sending DMCAs simply screwing up.

But another weakness in the notice and takedown policy is in how much power it places in the hands of trolls and bad actors to simply fuck with people. This can be seen in action in the case of one SoundCloud troll getting all kinds of music taken down by pretending to be a rights holder.

Multiple bass music artists have alleged that their tracks have been removed from SoundCloud for wrongful copyright claims. Working under an account by the name "Dr Egg," an unknown user reportedly made copyright violation claims against multiple artists, which these artists are claiming resulting in the removals. In the SoundCloud platform, uploads can be taken down for copyright violations if SoundCloud receives an email making a claim against the track. A copyright violation occurs when someone uses a sample or part of a song that was already copyrighted by another artist or company. Currently, it only takes one claim to have a track removed and it may be reinstated if the claim is proven false.

According to reply emails from SoundCloud to the artists in question, "Dr Egg" used email addresses that pointed to Moonboy (moonboycreator@outlook.com) and Too Vain(toovain@outlook.com) to make these strikes. The user appears to have falsified Moonboy's (Jaime Madsen) signature and used his name on the copyright infringement claims. Moonboy made a video on Twitter to speak out against the fraud.

That the policy can be weaponized for nihilistic mayhem in this way at all is a clear signal that changes need to be made. That this doesn't happen constantly is not a defense of the policy. Good internet policy is not that which can be easily subverted by impersonating another person, because that happens all the time on the internet. And, when coupled with platforms being incentivized only in the direction of quick takedown of art and speech, that causes a massive speech issue that would make the founding fathers go into a rage.

In this case, SoundCloud did manage to get the uploads in question restored.

A spokesperson on behalf of SoundCloud has responded to EDM.com with the following statement:

"Our takedown notification process is designed to respect copyright, and it is our policy to review all infringement claims per the guidelines outlined in our Help Center. Upon review, we have determined these copyright claims are not valid, and are happy to report we’ve reinstated all affected content."

Which is all well and good, but we still have a problem. And I'm pretty sure the impetus for that problem can be found in the very first line of SoundCloud's statement: "Our takedown notification process is designed to respect copyright...". You may notice that there is no mention of speech and art in the statement at all. This is, again, because all of the incentives in the DMCA's notice and takedown provisions push platforms to favor copyright over art -- which is anathema to the principles of free speech.

Filed Under: copyright, dmca, notice and takedown
Companies: soundcloud

A Mix Of Good And Bad Ideas In NAFTA Replacement

from the not-great,-but-some-useful-concepts dept

Let's start with the simple concept that it's not at all clear why intellectual property and intermediary liability issues should even be in various free trade agreements, other than to acknowledge that the legacy copyright industry has spent decades demanding that they be included in those agreements. I've mentioned it many times in the past, but the book Information Feudalism should be required reading on this subject, showing how copyright interests effectively hijacked the international trade agreement process to force through domestic policies they wished to have. The internet community mostly ignored the trade agreement process for years, allowing the RIAAs and MPAAs of the world to run rampant and get more or less whatever they wanted in smokey backrooms, before running home to Congress demanding that we pass new laws to "live up to our international obligations."

When NAFTA was originally passed, this practice wasn't as common. Nowadays, it's more or less considered mandatory to include these issues in trade agreements. This is unfortunate for a large number of reasons, but it does mean that if these issues are going to show up in trade agreements, at least they ought to come out in a way that isn't harmful.

And that takes us to NAFTA, which our current president demanded be renegotiated for no clear reason other than he was sure it was bad and we were being ripped off. And, voila, we now have a new agreement called the USMCA agreement designed to replace NAFTA (though I agree that we really missed a huge opportunity in not calling it the CAMUS agreement (or at least *something* that is pronounceable). And, because the RIAA and MPAAs of the world forced these issues into trade agreements, this new USMCA has a bunch of issues that have literally zero to do with "trade" but could have pretty widespread impacts on innovation and the internet.

Michael Geist has the best overview I've seen of the agreement, highlighting both the good and bad aspects of the agreement. On the bad side of the ledger, it forces Canada to extend its copyright terms from "life plus 50" to "life plus 70." Thankfully, it appears the weird USTR confusion over the earlier idea that it was going to require life plus 75 years is now gone. But requiring life plus 70 is already problematic. It's especially bad for Canada in that it will involve a massive taking of the public domain, and locking it up for two extra decades for no good reason. But it's also bad for the US and Mexico in that it effectively blocks any chance of rolling back copyright terms to more reasonable levels (a proposal that even the US Copyright Office appeared to support in years' past).

Also bad: expanding the data protection term of biologics. This is something that the US has pushed for in other agreements over the years and it's really dangerous for basic science and innovation in the drug space. Big pharma companies want it because it allows them to extract monopoly rents, but it harms our ability to actually understand the efficacy of drugs and to make better drugs. We've also discussed how this can lead to real harm in silencing people pointing out health risks of certain drugs.

We also remain concerned about the vague "anti-counterfeiting" language that has been used in the past to justify some truly draconian policies that could create huge problems for innovation and privacy.

On the more neutral-to-possibly-bad side of the ledger, the agreement does allow Canada to retain its current "notice-and-notice" copyright policy, as opposed to a "notice-and-takedown" policy for copyright infringement that both the US and Mexico have. This is good, because Canada's notice-and-notice policy was the result of many years of difficult negotiations and an attempt to do something not as draconian and problematic on questions of free speech than the notice-and-takedown system that we see abused nearly every day here in the US and elsewhere. Unfortunately, what puts this in the "neutral-to-possibly-bad" category is that Canada is only allowed to keep notice-and-notice because it's effectively grandfathered in. The agreement more or less blocks the US or Mexico from moving to such a system.

This is ridiculous. Just as we're getting evidence of how much better a system notice-and-notice is compared to notice-and-takedown, suddenly the US and Mexico will be barred from moving to such a system, even if the evidence shows that it's better for everyone? That makes no sense at all.

On the neutral-to-possibly good side of the ledger, despite concerns that it was missing in earlier drafts and reports, the agreement does include a provision on what they refer to as "limitations and exceptions," but which we note are really user rights such as fair use. It's good that this is there. But... it's less good that it uses the traditional "three steps test" found in Berne Convention. That's concerning because at least some interpret the three step test to limit fair use (and some even argue -- incorrectly -- that US fair use is not permitted under the three step test). So, the "good" part is that the agreement includes something on user rights, but the bad part is that it defaults to the three step test which could be used to significantly limit just how fair use is applied.

Finally, on the "good" side of the ledger, the USMCA does provide language establishing strong intermediary liability protections:

no Party shall adopt or maintain measures that treat a supplier or user of an interactive computer service as an information content provider in determining liability for harms related to information stored, processed, transmitted, distributed, or made available by the service, except to the extent the supplier or user has, in whole or in part, created, or developed the information.

This is useful, especially as CDA 230 and DMCA 512 are under attack. Again, I'm disappointed that we should need to use "trade agreements" to argue this point, but since others are trying to undermine intermediary liability through trade agreements, there needs to be some pushback, and this does establish that in a clear manner. Hilariously, a former RIAA exec who was instrumental in getting copyright expansions placed into trade agreements around the globe is now whining about how awful it is that intermediary liability protections are found in this new agreement, citing concerns raised by plenty of people who support these protections, but who in the past protested efforts to expand copyright rules through those trade agreements. What a hypocritical position for him to take. Dude, you were the one who forced these issues into trade agreements: don't freak out and cry about it when you face some level of pushback in the form of policies you dislike. You made your bed.

In the end, again, it's disappointing that these issues should be in a trade agreement at all. None of this really has anything to do with "trade" in the traditional sense. But they are in this agreement, and thus we should hope that they get the various issues right. The inclusion of intermediary liability protections is clearly a good result if you must include these kinds of provisions, but the copyright and biologic expansions are still incredibly problematic. Unfortunately, it seems likely that the response from the USTR or anyone else will be "well, you win some, you lose some" rather than fixing the problems.

Filed Under: biologics, canada, cda 230, copyright, copyright term, intermediary liability, mexico, nafta, notice and notice, notice and takedown, section 230, trade agreements, usmca

Our Response To Titan Note Sending A Frivolous Takedown Notice Over Our Critical Coverage

from the censorious-thuggery dept

We've written two separate stories about the Titan Note -- a small recording/transcription device that was originally sold via a crowdfunding project at IndieGogo. It was an interesting device, that immediately generated a fair bit of press -- though that included some reasonable skepticism about whether or not the product could really do what it claimed it could do (especially since many other larger companies couldn't seem to produce similar voice recognition capabilities, despite putting tremendous resources towards it). I still backed the project hoping that maybe it was legit. The good press still beat out the few skeptical posts and the campaign initially raised over $1 million dollars. However, soon after the project closed, IndieGogo canceled the campaign (perhaps due to a group of online skeptics contacting them) and refunded everyone's money, saying that that Titan Note had violated its terms. We reported on this not because of the project being canceled, but because in discussing the cancellation, the Verge also noted that Titan Note had sent a bogus DMCA notice over its skeptical story -- and writing about censorious DMCA takedowns is pretty common around here.

Last week we wrote about Titan Note again, following what the company did after IndieGogo shut it down. Our post highlighted a number of other sketchy moves by the company, including blaming IndieGogo (and promising to sue the company for unspecified reasons). Then there was the second crowdfunding platform that also canceled a Titan Note campaign. And the fact that Titan Note kept deleting the fairly innocuous questions I asked on its Facebook page, which were just about trying to understand the real reasons for getting kicked off IndieGogo (and for sending the bogus DMCA notice). As part of this I also sent Erik Jansson, the guy behind Titan Note, an emailed list of questions.

Rather than respond... he sent a DMCA takedown notice to us in response.

In that last post, we included screenshots of Titan Notes' comments on Facebook. We showed the screenshots specifically because Titan Note had a history of deleting others' Facebook comments, and I feared that the company might delete its own embarrassing statements. Similarly, we posted a closely cropped image of Titan Note's own website to show the questionable claim it makes about how the product raised over $1.1 million with 12,000 backers via crowdfunding. That claim is highly misleading, given that the project was canceled and Titan Note never received that money. Its website certainly appears to imply otherwise.

The DMCA notice claims that all of these screenshots are infringing:

The website https://www.techdirt.com/blog/?company=titan+note is using our images without our permission. All of the images in the article are stolen from our Facebook page and our website. They are also using our trademarked name "Titan Note" without our permission. The have also stolen many quotes and paragraphs from our Facebook page and included that in the article. This is a clear violation of the law and we urge you to remove the link immediately.

Obviously, our use of these images and the Titan Note name is fair use. It's not even remotely in question. The images were not "stolen" -- we took screenshots to include with significant commentary for the purpose of news reporting. This is exactly what fair use is designed to cover. The only reason to send this kind of takedown notice is to try to intimidate or silence critical reporting of Titan Note. Indeed, with a third critical article written by someone else also receiving a DMCA takedown over screenshots, it seems that Titan Note is repeatedly trying to abuse the DMCA to censor criticism.

If you are still backing Titan Note (now doing pre-sales on its own site), I would suggest considering whether or not you trust a company that feels the need to send bogus takedown notices to anyone even moderately critical of its products or actions.

In the meantime, we've retained lawyer Ken "Popehat" White to handle this matter, and he has responded to Jansson's takedown notice as follows:

Dear Mr. Jansson,

This firm is litigation counsel to Floor64, Inc., which owns and operates the site Techdirt.com (“Techdirt”). I write in response to your email of May 26, 2017 to Mike Masnick of Floor64.

I will ignore the procedural deficiencies in your purported DMCA notice and address the lack of substance. Your assertion that Techdirt has violated Titan Technologies, LLC’s (“Titan”) intellectual property rights is astoundingly frivolous and represents a transparent attempt to suppress negative news coverage through vexatious legal threats. It will fail. Techdirt’s coverage of Titan’s conduct is clearly protected by applicable law.

Even assuming for the sake of argument that Titan has a protected intellectual property interest in its public Facebook comments, Techdirt’s coverage is classic fair use protected by Title 17, United States Code, section 107. Techdirt has reported and displayed those comments for the purposes of criticism, comment, and news reporting. Your claimed trademark violation is equally meritless. Techdirt has used Titan’s name not to compete with Titan, but to identity Titan in order to report on its conduct. That’s self-evidently nominative fair use. New Kids on the Block v. News Am. Pub., Inc., 971 F.2d 302, 307 (9th Cir. 1992).

Your bogus claims, threatened to deter news coverage, are exactly the sort that lead to courts awarding attorney fees to defendants. Should you file an action, you should expect me to seek attorney fees, win them, and pursue you personally for them wherever you may retreat. Floor64 also reserves its right to seek damages for abuse of the DMCA under, for instance, Title 17, United States Code, section 512(f).

Please direct any further communications, including further bumptious legal threats, to me.

Very truly yours,

Ken White

Filed Under: abuse, censorship, copyfraud, copyright, dmca, erik jansson, ken white, notice and takedown, titan note, trademark
Companies: indiegogo, titan note

Google Report: 99.95 Percent Of DMCA Takedown Notices Are Bot-Generated Bullshit Buckshot

from the overplaying-their-hand dept

Google, being the search giant that it is, has been banging the drum for some time about the silly way the DMCA has been abused by those that wield it like a cudgel. Here at Techdirt, we too have described the many ways that the well-intentioned DMCA and the way its implemented by service providers has deviated from its intended purpose. Still, the vast majority of our stories discuss deliberate attempts by human beings to silence critics and competition using the takedown process. Google, on the other hand, has been far more focused on statistics for DMCA takedown notices that show wanton disregard for what it was supposed to be used for entirely. That makes sense of course, as the abuse of the takedown process is a burden on the search company. In that first link, for instance, Google noted that more than half the takedown notices it was receiving in 2009 were mere attempts by one business targeting a competitor, while over a third of the notices contained nothing in the way of a valid copyright dispute.

But if those numbers were striking in 2009, Google's latest comment to the Copyright Office (see our own comment here) on what's happening in the DMCA 512 notice-and-takedown world shows some stats for takedown notices received through its Trusted Copyright Removal Program... and makes the whole ordeal look completely silly.

A significant portion of the recent increases in DMCA submission volumes for Google Search stem from notices that appear to be duplicative, unnecessary, or mistaken. As we explained at the San Francisco Roundtable, a substantial number of takedown requests submitted to Google are for URLs that have never been in our search index, and therefore could never have appeared in our search results. For example, in January 2017, the most prolific submitter submitted notices that Google honored for 16,457,433 URLs. But on further inspection, 16,450,129 (99.97%) of those URLs were not in our search index in the first place. Nor is this problem limited to one submitter: in total, 99.95% of all URLs processed from our Trusted Copyright Removal Program in January 2017 were not in our index.

Now, because Google is Google, the company doesn't generally have a great deal of sympathy hoisted upon it by the public, never mind by copyright protectionists. But, come on, this is simply nuts. When the number of claims coming through the system that don't even pertain to listed results by Google can be logically rounded up to 100%, that's putting a burden on a company for no valid reason whatsoever. Even if you hate Google, or distrust it, it should be plain as day that it's unfair for it to have to wade through all this muck just to appease the entertainment industries.

And, it's important to note that this isn't all of the notices received, but just those coming through the Trusted Copyright Removal system -- meaning that these are organizations that supposedly are supposed to have at least some credibility not to be submitting totally bogus notices. But, apparently, they don't actually give a damn.

The problem, as you may have already guessed, is that most of these claims are being generated through automated systems designed to shotgun-blast DMCA notices with reckless abandon.

These numbers of simply staggering with only a tiny number of millions of requests reflecting actual pages in the search index. Rather, 99.95% of the processed URLs from Google’s trusted submitter program are machine-generated URLs that do not involve actual pages in the search index. Given that data, Google notes that claims that the large number of requests correlates to infringing content on the Internet is incorrect:

Nor is the large number of takedown requests to Google a good proxy even for the volume of infringing material available on the Internet. Many of these submissions appear to be generated by merely scrambling the words in a search query and appending that to a URL, so that each query makes a different URL that nonetheless leads to the same page of results.

The claim by the entertainment industry that one can see what a problem piracy is by looking at the sheer volume of DMCA notices sent to search engines shall hereby be declared dead, having been buried by the industry's fellow takedown-notice-filers. That claim never made much sense, but these stats sever any link between takedown notice numbers and actual piracy completely. And there needs to be a remedy for this, whether its punishment upon the abusers or rules for how notices can be filed. Because these numbers are ridiculous.

Filed Under: censorship, copyright, copyright office, dmca, dmca 512, false takedowns, free speech, notice and takedown, takedowns
Companies: google

Notice & Staydown In Action: HBO Didn't Even Need To Send Takedown Over Autistic Teen's Artwork

from the bursting-your-bubble dept

Things just got a little more weird in the case of the 13 year old British girl who had some art she created taken down from Redbubble's site because the artwork included the phrase "winter is coming." The girl's father responded to the takedown, questioning why HBO, owners of the trademark rights to the phrase in conjunction with the Game of Thrones franchise, would do this to an autistic teenager that wasn't even selling the art, only sharing it. As noted in our original post, the letter Redbubble sent the girl is a mess, lacking any firm reference to trademark or copyright and replacing it only with "IP/Publicity Rights." In addition, the whole letter is written like a forwarded DMCA notice, including offering the ability to counternotice through Redbubble's DMCA counternotice email address... but this would be a trademark issue, to which the DMCA doesn't apply. Lots of people, including the girl's father, assumed this takedown had been carried out at the request of HBO.

It looks like that wasn't the case. What the girl's father missed -- along with many of those reporting on the issue, including myself -- is that Redbubble's letter states that they did this because of HBO's history of issuing DMCA notices, not because it had actually done so in this case.

"We have removed the following content from Redbubble in response to past complaints from Home Box Office, Inc., the claimed owner or licensee of related intellectual property and in accordance with Redbubble's IP/Publicity Rights Policy," it said.

So this wasn't "notice and takedown", it was "notice and staydown", where Redbubble policed HBO intellectual property on its site based on previous complaints. That's not required by law, of course, but it certainly is what many in Hollywood want to see as the standard. And this is a perfect case for why it's a terrible, terrible idea. Legitimate, non-infringing uses get caught up in the blanket takedowns issued by service providers that don't really have a clue as to what they're doing.

And in light of what actually happened, Redbubble's letter, and the way it appears to be disguised as a DMCA notice, is at best horrifically sloppy and at worst an attempt to shift the blame for its voluntary and proactive takedown of a teenage girl's artwork. For it's part, HBO doesn't seem to be happy about this.

"We love when fans are creative in their support of our programmes," the network said in a statement (via Entertainment Weekly). "These works live online in many incarnations, and in the past we have celebrated them by drawing attention to them.

"Many for-profit websites that sell products, such as Redbubble, take steps to avoid infringements as part of their standard operating procedure. To suggest a particular individual was targeted, or that HBO threatened legal action against her, is simply untrue."

Now, HBO's history of how it treats fans of Game of Thrones isn't universally positive, and it's worth noting again that the stated reason Redbubble did all of this is because of the network's heavy-handed history when it comes to matters just like this...but I have to think HBO is also pissed off at the way Redbubble's communication with the girl's father allowed him -- and the media -- to conclude this was all HBO's fault for issuing a DMCA takedown.

Regardless, good to know that Redbubble wants to be in the business of proactively policing its site in such a way that it results in the non-infringing artwork of a teenager gets taken down. The site is a notice and staydown site, on the record.

Filed Under: censorship, dmca, notice and staydown, notice and takedown, threats, trademark, winter is coming
Companies: hbo, redbubble

Top Internet Companies Agree To Vague Notice & Takedown Rules For 'Hate Speech' In The EU

from the who-defines-what-hate-speech-is dept

It's easy to say that "hate speech" is bad and that we, as a society, shouldn't tolerate it. But, reality is a lot more complicated than that, which is why we're concerned about various attempts to ban or stifle "hate speech." In the US, contrary to what many believe to be true, "hate" speech is still protected speech under the First Amendment. In Europe, that's often not the case, and hate speech bans are more common. But, as we've noted, while it seems like a no brainer to be against hate speech, the vagueness in what counts as "hate speech" allows that term to be expanded over and over again, such that laws against hate speech are now regularly used for government censorship over the public saying things the government doesn't like.

So consider me quite concerned about the news out of the EU that the EU Commission has convinced all the big internet platform companies -- Google, Facebook, Twitter and Microsoft -- to agree to remove "hate speech" within 24 hours.

Upon receipt of a valid removal notification, the IT Companies to review such requests against their rules and community guidelines and where necessary national laws transposing the Framework Decision 2008/913/JHA, with dedicated teams reviewing requests.

The IT Companies to review the majority of valid notifications for removal of illegal hate speech in less than 24 hours and remove or disable access to such content, if necessary.

In addition to the above, the IT Companies to educate and raise awareness with their users about the types of content not permitted under their rules and community guidelines. The use of the notification system could be used as a tool to do this.

In other words, it sounds a lot like these companies have agreed to a DMCA-like notice-and-takedown regime for handling "hate speech." Let's be clear here: this will be abused and it will be abused widely. That's what happens when you give individuals the ability to remove content from platforms. Obviously, these companies are private companies and can set whatever policies they want on keeping up or removing content, but when they come to an agreement with the EU Commission about what they'll remove and how quickly, reasonable concerns should be raised about how this will work in practice, what definitions will be used to determine "hate speech," what kinds of appeals processes there will be and more. And none of that is particularly clear.

And, of course, very few people will raise these issues upfront because no one wants to be seen as being in favor of hate speech. And that's the real problem. It's easy to create rules for censorship by saying it's just about "hate speech," since almost no one will stand up and complain about that. But that opens up the door to all sorts of abuse -- whether in how "hate speech" is defined, as well as in how the companies will actually handle the implementation. Two major human rights groups -- EDRi and Access Now have already withdrawn from the EU Commission forum discussing all of this in protest of how these rules were put together:

Today, on 31 May, European Digital Rights (EDRi) and Access Now delivered a joint statement on the EU Commission’s “EU Internet Forum”, announcing our decision not to take part in future discussions and confirming that we do not have confidence in the ill considered “code of conduct” that was agreed.

Their main concern was that the whole thing was set up directly between the EU Commission and the internet companies behind closed doors -- and when you're talking about issues that impact human rights and freedom of expression, that needs to be done openly and transparently.

In short, the “code of conduct” downgrades the law to a second-class status, behind the “leading role” of private companies that are being asked to arbitrarily implement their terms of service. This process, established outside an accountable democratic framework, exploits unclear liability rules for companies. It also creates serious risks for freedom of expression as legal but controversial content may well be deleted as a result of this voluntary and unaccountable take down mechanism.

I recognize why many people may cheer on this move, thinking that it's a way to stop "bad stuff" from happening online, but beware the actual consequences of setting up an opaque process with a vague standard for pressuring platforms to censor content based on notices from angry people. If you don't think this will be abused in dangerous ways, you haven't been paying attention to the last two decades on the internet.

Filed Under: censorship, eu, eu commission, hate speech, internet, notice and takedown, platforms
Companies: facebook, google, microsoft, twitter, youtube

A Dozen Bad Ideas That Were Raised At The Copyright Office's DMCA Roundtables

from the not-looking-good dept

The Copyright Office has been holding a series of "roundtable discussions" on copyright reform that it's going to use to produce a paper supporting certain changes to copyright law. We already know that some sort of copyright reform bill is expected in the near future, and what comes out of this whole process is going to be fairly important. Unfortunately, the roundtables are not encouraging. There was one held in NY a few weeks ago, which Rebecca Tushnet blogged about in great detail, and I attended the ones last week in San Francisco and I've gathered up my tweeted commentary, if you feel like reading through it.

Unlike the House Judiciary Committee roundtable that was held in Silicon Valley last year, where the Representatives surprised many of us by actually asking good questions and listening to the answers, the Copyright Office's roundtables were bizarre and troubling. First, the whole setup of the two two-day events was problematic. The Copyright Office wanted to make sure that everyone who applied to speak was allowed to participate in some manner, so for each set of roundtables, they set up 7 roundtables of 20 people each on pre-defined topics, where each roundtable was only 90 minutes.

This was problematic in many ways, because the very fact that the Copyright Office already assigned the topics of each "panel" suggested the preconceived notions that the Office came into the hearings with. Second, 20 people in 90 minutes meant a kind of soundbite culture, rather than an actual discussion. Basically, 4 people from the Copyright Office sat up front and would declare the topic and ask a single (usually general) question to kick off the panel. Then anyone who wanted to respond would turn their name placards on the side. Each person speaking was told they had 2 minutes, and a Copyright Office person would hold up cards counting down the time until finally holding up a giant STOP sign when time ran out. If the Copyright Office people felt like it, they might pepper you with follow up questions, or just move on to the next upturned placard. Only a few times during two full days of everyone locked in a courtroom was there any real discussion or attempt at moving the ball forward on issues. Instead, there were a lot of 2 minute speeches, often totally contradictory, and sometimes with people saying blatantly false things.

The hearings were not livestreamed, though there was a court reporter who apparently is creating a transcript that will be distributed at some point (hopefully soon). While anyone could sign up to participate, the public was definitely a big missing factor. The Copyright Office itself repeatedly seemed to act as if copyright law is about two industries at war with each other -- "content" v. "tech" -- and unfortunately seemed to think that all content creators who mattered were against the tech industry. While the public could, in theory, have attended, there was very little seating available for non-participants, and we were all quite literally locked into a courtroom in San Francisco (getting out was always fun as we had to wait for the doors to unlock).

If I had to summarize the most general theme throughout the hearings, it was this: many individuals and businesses that relied on a certain way of doing business in past decades have not been able to adapt to the changing internet world, and they're very upset about this. They see that companies like Google (especially) are now making lots of money, and assume that somehow that money belongs to them. This ridiculous chart was waved around by one of the participants. It's basically the old way of doing business lashing out at the new way. Attempts to point out that there are many more new content creators today, and many more ways to make money, were dismissed, ignored or ridiculed. Attempts to point out that the "obvious" solutions weren't at all obvious and might cause more harm than good were similarly ignored. There were many attempts to "blame Google" and to use copyright law to "force Google" to do... something. Many of the things that people were asking for, Google actually already does, but people wanted more.

With that as background, here are twelve really troubling ideas that were raised during the hearing, many (though not all) by representatives from the Copyright Office itself:

1. Notice & Staydown: If there was one overarching theme to the hearings it was the idea that many kept pushing for a "notice and staydown" regime to replace the current "notice and takedown" regime in the DMCA today. There would be weird alternating comments from people where a recording industry person would say something like "look, we need notice & staydown!" and then someone who actually understood the technology or the law would explain the problems of a notice & staydown regime, only to have the next person ignore all of that and say "what we truly need is notice and staydown." Concerns raised about abusive takedowns were mostly ignored. The Copyright Office kept arguing that people can just counternotice abusive takedowns, and didn't seem to care that evidence suggests many people are too afraid to counternotice. They also totally ignored the fact that if you move to a notice and staydown regime, there won't be notices to counter in many cases.
   
   Related to this, there seemed to be little willingness to recognize that copyright is context specific, and that the same content in one realm may be infringing, while in another may be non-infringing. Which brings us to:
   
   
2. Notice & Staydown For Full-Length Content: This appears to be the "compromise" solution that the Copyright Office kept pushing during the discussions, repeatedly bringing this up as an option. Their argument is that "okay, some people are worried about notice and staydown interfering with fair use, but 'full-length content' isn't fair use, so perhaps we just say that if it's 'full-length' movies, books and music, then any platform needs to have a notice & staydown setup."
   
   Of course, there are numerous problems with this as well. First off, such filtering platforms are both expensive and often not very good (see: ContentID, which cost $60 million to build, and still sucks). A requirement for such a filtering system would basically stop all new entrants into the market and lock the big players (YouTube, Facebook) in as the dominant platforms. It also doesn't make sense for all kinds of content. A lawyer from Wikimedia pointed out that a technology filter mandate would be insane for Wikipedia, since its human editors already seemed to be better and more efficient at removing infringing stuff.
   
   Most importantly, plenty of full-length content may be non-infringing. I mean, we just had the Google Books ruling not too long ago, which found that scanning, indexing and storing full-length books was fair use. Or there's the Bloomberg/Swatch case where full-length recordings of investor conference calls were used in a way that was fair use. Or what about people backing up their own movies? After all, one of the most famous copyright lawsuits ever, the Betamax case over the legality of home video recordings, found that recording full-length video... was fair use. Creating a bright line rule saying that full-length content isn't fair use would go against settled law and harm many forms of innovation.
   
   And that brings us to:
   
   
3. One-size-fits-all tech mandates and carve-out attempts: Because of the points above, the Copyright Office and some others kept trying to see if there were ways to write the rules so that they would only target certain players (i.e., "Google"). This makes little sense for a variety of reasons. First, as Google itself noted, when you're talking about something like YouTube, it already offers a notice-and-staydown tool in the form of ContentID, but many people choose not to use the staydown portion, because Google also offers an option to "monetize" those works. Whether or not we agree with how ContentID works, it's clear that it already provides a lot more than what the law currently says YouTube needs to do, and people still aren't satisfied.
   
   But it's nearly impossible to create mandates for technology in a way that doesn't (1) harm many other companies in the space and (2) create weird and dangerous incentives. The most common suggestion was some sort of special safe harbor for "small" companies, so that the next startup wasn't burdened with having to build or buy a filter... until they reached a certain size. But that doesn't work either. Both Wikimedia and the Internet Archive noted that in terms of traffic, they're both pretty big... but they're also both non-profits with limited funding and where a mandated tech filter would be both prohibitively expensive and total overkill. So, then the Copyright Office suggested maybe a carve-out for "non-profits." But, as someone from eBay pointed out, that still creates problems for a site like eBay. eBay notes that it doesn't have a huge issue of copyright infringement, but there is always some that happens -- usually in the form of people using photographs for an auction without having a license. But, as eBay notes, the "harm" here is pretty minimal, and the idea that eBay should need to purchase an expensive tech filter to weed that out is clearly overkill.
   
   
4. Only some kinds of content matter: Perhaps the most frustrating thing was how clearly the Copyright Office and many of the participants who had experience in the legacy content creation world seemed to totally dismiss the idea of new content creators, new kinds of content and new content business models. When lawyer Cathy Gellis mentioned that she was an amateur singer who was able to make some money today, whereas in the past she'd be totally out of luck, the Copyright Office's immediate response was to basically say, "but that doesn't count" for content creators who need to invest in their content creation. Similarly, one musician did the "get off my lawn" style of complaint, saying that all the music today sounds the same, and blamed piracy and Google for that happening (which is incredible, since there is so much more music, including so many different kinds of music, more widely available than ever before). Over and over again people suggested that their own content mattered much more than anyone else's.
   
   Too often, panelists absolutely dismissed amateur content or even professional content from new kinds of content creators. People dismissed YouTube as just being about "cat videos." And, again, the Copyright Office seemed to support this idea. In fact, somewhat astoundingly, at one point, someone from the Copyright Office tossed out the suggestion that political content could get extra rights, compared to other kinds of content, suggesting that maybe political related videos could get a carve-out such that it would get put back up online faster if it gets a bogus takedown, whereas a "dancing baby" doesn't matter enough. That would clearly violate the First Amendment in determining that some kinds of speech get extra rights compared to other kinds of speech. Update: In the original post, I wrote that Copyright Office General Counsel Jacqueline Charlesworth made the comparison between political speech and "dancing baby" speech. It turns out that it was another Copyright Office employee, Karyn Temple Claggett. I apologize for the error.
   
   
5. Service providers shouldn't be allowed to reject takedown notices: This one was pretty incredible (especially combined with the next one). The Copyright Office's General Counsel seemed taken aback by the idea that service providers might choose, of their own volition, to reject DMCA takedown notices. She came back to this point multiple times on day one, suggesting that she was somehow uncomfortable with the idea that a service provider might choose to "adjudicate" whether or not a takedown notice was valid. This was surprising, because the law is pretty clear. The DMCA does not say what a service provider must do. It just describes steps that are necessary to keep the safe harbors. That doesn't mean that if you don't follow the safe harbor requirements you're violating the law, it just means that if you're sued, you don't get an automatic pass on liability. But Charlesworth seemed really disturbed by that idea. And that's problematic, because if you talk to various platforms that receive lots of takedowns, they need to be able to reject some to avoid completely bogus takedowns.
   
   
6. Service providers should lose their safe harbors based on a single decision to reject safe harbors over a single takedown: This one could potentially be lumped together with the one above, but it's so crazy that it deserves its own bullet point. Basically, Charlesworth suggested that if a service provider decides to forego the safe harbors for a single item (e.g., refusing to take down content based on an obviously frivolous takedown notice), it might mean that they've removed safe harbors for the entire site. This came up during a direct discussion with a lawyer from Google, in which she interrupted him to ask why a service provider would refuse to take down content, and it was explained that if the takedown was obviously bogus, a site shouldn't take it down. Charlesworth then questioned the lawyer about whether or not the safe harbors only applied to each individual instance, or to the site as a whole, leaving many people in the audience stunned that this was even a question -- including the Google lawyer, who basically said that "obviously" the safe harbor question applied to each individual takedown.
   
   Put these two things together and the suggestion is that service providers should never be allowed to question a takedown, no matter how bogus, and if they do, they automatically lose the DMCA's safe harbors entirely. Talk about a recipe for mass censorship.
   
   
7. Punishment for false counternotices: Another bizarre idea that came up during these discussions was adding punishment for false counternotices. This is crazy. The system is already totally imbalanced in favor of the person sending the takedown. They get to remove content in most cases based on a single email, and there's no real punishment for false takedowns at all. But after one person complained about false counternotices (a problem that I find it difficult to believe actually exists at any type of scale that warrants further corrective action), suddenly the Copyright Office suggested that maybe there could be additional punishment for bogus counternotices (but without suggesting there should be any punishment for false notices). This makes no sense. There's already punishment for false counternotices, which is that the copyright holder gets to sue the person for up to $150k per infringed work.
   
   And, indeed, as various studies have pointed out, the fear of such a lawsuit already greatly chills the willingness of many people to file counternotices at all. The idea of chilling the counternotice process even further, especially without fixing the problem of abusive takedowns, is crazy.
   
   
8. Artists struggling to make money have piracy/Google to blame: Over and over again speakers and the Copyright Office kept pointing out this or that content creator who is struggling to make money as proof of "the problem." But that's a massive logical leap. I'm sure that some content creators are losing some earning opportunities because of infringement, but making money as a content creator has always been incredibly difficult. Most musicians don't make very much money. Most movies don't make much money. And it was that way before the internet was even around, and it's still true today. It seems ridiculous to assume that single examples of artists struggling must be a result of piracy. The author TJ Stiles, who is on the board of the Authors Guild, literally claimed that because of infringement he was less creative and wrote less, saying piracy meant he couldn't pay healthcare or his mortgage.
   
   Yet, I can just as easily point to new authors or other content creators who are now making a living entirely because of these new platforms that so many people at last week's hearings were angry about. These days, there are new business models using Kickstarter, Patreon, IndieGogo, YouTube, Vine, Instagram, Snapchat, Amazon and many, many more. And many of the artists making money from those platforms wouldn't even have been able to create content in the old world. So those seem to wipe out the claims that it's "piracy" undermining the ability to make money. It seems to suggest that it frequently is a number of other factors from (1) a lack of an audience, (2) an audience that is no longer interested, (3) an inability to go where the audience wants to go these days or (4) an unwillingness to adapt to new business models. One filmmaker even claimed that he didn't think the law should allow "new media" business models to upend "old media" business models. That's an interesting viewpoint, given that under that thinking, film shouldn't have been allowed, since it undermined the market for theater.
   
   
9. Public comments are a "denial of service" attack: As mentioned earlier, it was somewhat distressing how frequently the public was ignored in all of this. The Copyright Office was clearly not entirely happy with the fact that Fight for the Future and the YouTube creators (yes, actual content creators!) urged the public to file comments with the Copyright Office on the problems with bogus takedowns. But perhaps the most ridiculous comment came from (known Techdirt hater) Jonathan Taplin, who suggested that because the Copyright Office's servers couldn't handle the ~87,000 inbound comments, it might be considered a "denial of service attack." Really? Helping the public to comment is a denial of service attack?
   
   On one of the panels that I was on, I raised the issue of the public being left out of all of this, and the focus on tech v. content -- neither of which might have the public's best interests in mind. The Copyright Office asked about how to better engage the public, and I suggested that encouraging more public comments, rather than dismissing them or labeling them "zombies" or a denial of service attack, might be a good start.
   
   
10. Gov't-supported "Voluntary measures" as a panacea: Repeatedly this was one area where the Copyright Office kept claiming "we have some agreement!" where both tech and the legacy content players kept insisting that "voluntary measures" between these parties could solve many of the issues. Representatives from Microsoft and Google excitedly talked up all the great "voluntary measures" that were going on in working with the content industries to come up with solutions that went beyond what the law required. Others talked up various efforts to stop ad networks or payment processors from working with "pirate sites."
    
    But, again, this seems dangerous to me. Voluntary measures between two giant industries leave the public and the public interest out of the discussion. Attacking "pirate" sites sounds great until you ask, "how is that list made?" Considering that the Internet Archive, personal blogs and even 50 Cent's personal website have been called pirate sites in previous attempts to build such lists, it's not quite as obvious as some would have you believe.
    
    On top of that, lots of brilliant innovations look like piracy when they're first created, but later turn out to be revolutionary. As I noted in my 2-minute soundbite opportunity, radio, the photocopier, cable TV, the VCR, the DVR, the mp3 player and online video were all decried as nothing but piracy tools when they first came out. And yet all of them turned into significant business opportunities for content creators. Cutting those off in the early days through the collusion of "voluntary measures" could stifle all sorts of powerful innovations that actually would help content creators make more money and reach a wider audience.
    
    
11. The Lumen Database as a rogue site: One filmmaker was particularly concerned about the fact that Lumen Database (formerly known as ChillingEffects.org) archived DMCA takedown notices that were forwarded to the site. The claim was that people seeking infringing versions of content would search through Lumen to find the URLs listed for takedown. Someone else pointed out that there's no evidence that this is happening at any sense of scale, but someone from the Copyright Office substituted anecdotes for data, and claimed, "well, it's come up a lot." The suggestion was that perhaps Lumen should be required to redact the details of takedowns, and that only certified researchers should be allowed to access the full corpus.
    
    This is troubling on any number of levels. One of the things that was clear throughout the discussion is that we need more data and more research into what's working and what's not working. And you don't do that by locking up important data and then suggesting that only a special class of people should be allowed in. Though, I guess it fits with the idea that only some kinds of content creators matter. Apparently only some kinds of researchers might matter as well.
    
    
12. Technology is magic: Over and over again, folks who actually understood the technology pointed out why technology is no magic bullet. You can't automate understanding what is and what is not infringing. But someone from a lobbying group for the legacy copyright players pulled out the "you're all so smart, nerd harder" card by saying that if Silicon Valley can build a self-driving car, surely it can build a technology that can determine what is and what is not fair use. This has echoes of the debate over backdooring encryption, which is another of these "nerd harder" situations, in which non-technologists assume that technology is magic and doing x and doing y are somehow equivalent. All I can say in response to that is obligatory xkcd:
    

All in all, the two days of hearings was somewhat frustrating. I had hoped that it might be a way to actually have some productive discussions that actually focused on what was best for "promoting the progress." Instead, it seemed to involve the Copyright Office coming in with preconceived notions, mainly focused on how copyright law can be changed to better prop up legacy business models, at the expense of the public and innovation -- including all of the new creators who rely on that innovation.

Filed Under: 512, copyright, copyright office, dmca, dmca 512, fair use, notice and staydown, notice and takedown, safe harbors

Want To Tell The Copyright Office To Stop Abusive DMCA Takedowns? Here's How

from the join-in dept

So, today's been DMCA 512 takedown day here at Techdirt. Today's the day that comments are due at the Copyright Office concerning the effectiveness (or not) of the DMCA's notice and takedown provisions. And, of course, no one's entirely happy with the DMCA, but they're unhappy in very different ways. We wrote about the legacy music industry whining that Google has built a successful service while they failed to adapt themselves. We wrote about Automattic reinforcing how DMCA takedowns are regularly abused to try to censor content (and how people are afraid to counternotice), and we wrote about our own filing, highlighting how the abuse of the DMCA process raises questions about how the current setup is Constitutional.

And, there are tons of other filings and comments flowing in, often from industry groups, written by lawyers. But it's important that the Copyright Office hear from the public as well. So our good friends over at Fight for the Future have set up a wonderful website at TakedownAbuse.org that provides more information and helps you send your own comments to the Copyright Office about how DMCA abuse impacts you.

Also, the folks at Channel Awesome put together a great video that both details the problem and suggests some key points worth raising in any comment you send in (though, I take issue with his claim that this "flew under the radar," since the comment period was announced months ago... but...). Either way please consider sending in a comment -- and doing so in as thoughtful and polite a manner as possible. I know that there are often temptations to say something angrily in such comments, but that will just open up a reason to ignore your submission.

Filed Under: copyright, dmca, dmca 512, dmca abuse, notice and takedown, takedowns

Our Comment On DMCA Takedowns: Let's Return To First Principles (And The First Amendment)

from the what's-working-and-what's-not dept

As mentioned earlier, today's the day to file comments with the Copyright Office over the DMCA's notice and takedown provisions. We've already discussed the recent set of studies showing that there are way too many bogus takedown notices that are clogging the system, creating real problems for small service providers and censoring free speech. We also wrote about the patently ridiculous filing by the legacy players in the music industry, who whined about how the public is enjoying more content than ever before (which, you know, is the stated purpose of copyright law), but they're upset that their business models are now obsolete. Finally, we wrote about the fantastic filing from Automattic, which gives many more real world examples of how the takedown process is abused (which the legacy industry pretends isn't true, because people don't file counternotices).

And now, here's our own comment, prepared by our excellent attorney (and sometimes guest poster), Cathy Gellis. In this filing, we decided to focus on taking a step back and going to first principles about the intent of copyright law itself, as well as the official and stated intent of the DMCA -- and to look at where things seem to be working and where they are not. As the filing notes, Congress made it clear with both the DMCA 512 safe harbors and the CDA Section 230 immunity provisions that it intends to support a vibrant internet where the public is free to share its views. And we see no reason why Congress should back away from that.

But, of course, there are problems, and the big one is widespread censorship enabled by the notice-and-takedown provision:

Despite all the good that Section 230 and the DMCA have done to foster a robust online marketplace of ideas, the DMCA's potential to deliver that good has been tempered by the particular structure of the statute. Whereas Section 230 provides a firm immunity to service providers for potential liability in user-supplied content, the DMCA conditions its protection. And that condition is censorship. The irony is that while the DMCA makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech they exist to facilitate due to the notice and takedown system.

In a world without the DMCA, if someone wanted to enjoin content they would need to demonstrate to a court that it indeed owned a valid copyright and that the use of content in question infringed this copyright before a court would compel its removal. Thanks to the DMCA, however, they are spared both their procedural burdens and also their pleading burdens. In order to cause content to be disappeared from the Internet all anyone needs to do is send a takedown notice that merely points to content and claims it as theirs.

[....]

Ordinarily the First Amendment and due process would not permit this sort of censorship, the censorship of an Internet user's speech predicated on mere allegation. Mandatory injunctions are disfavored generally, and particularly so when they target speech and may represent impermissible prior restraint on speech that has not yet been determined to be wrongful. To the extent that the DMCA causes these critical speech protections to be circumvented it is consequently only questionably constitutional. For the DMCA to be statutorily valid it must retain, in its drafting and interpretation, ample protection to see that these important constitutional speech protections are not ignored.

We also highlight examples of innovative platforms and services driven out of business due to bogus DMCA claims, and how that appears to go against the purpose of copyright as well:

Veoh was a video hosting service akin to YouTube that was found to be eligible for the DMCA safe harbor. Unfortunately this finding was reached after years of litigation had already driven the company into bankruptcy and forced it to layoff its staff. Meanwhile SeeqPod was a search engine that helped people (including potential consumers) find multimedia content out on the Internet, but it, too, was also driven into bankruptcy by litigation, taking with it an important tool to help people discover creative works.

History is littered with examples like the ones above of innovative new businesses being driven out of existence, their innovation and investment chilled, by litigation completely untethered from the principles underpinning copyright law. Copyright law exists solely to "promote the progress of science and the useful arts." Yet all too frequently it has had the exact opposite effect.

The DMCA has the potential to be a crucial equalizer, but it can only do so when the economic value of what these service providers deliver is considered by policymakers with at least as much weight as that given to the incumbent interests who complain that their previous business models may have become unworkable in light of digital technology. Service providers are economic engines employing innumerable people, directly and indirectly, and driving innovation forward while they deliver a world of information to each and every Internet user. We know economic harm is done to them and to anyone, creators and consumers, who would have benefited from their services when they are not protected.

And along those lines, our comment also points out that the legacy players have a fairly long history of crying wolf over problems that aren't really problems:

But what needs careful scrutiny and testing are economic arguments predicated on the assumption that every digital copy of every copyrighted work transmitted online without the explicit permission of a copyright holder represents a financial loss. This is a presumption that needs careful scrutiny, with reviewable data and auditable methodology. It is quite a leap to assume that every instance (or even most instances) of people consuming "pirated" copyrighted works is an instance they would otherwise have paid the creator. For example, it tends to presume that people have unlimited amounts of money to spend on unlimited numbers of copyrighted works, and it also ignores the fact that some works may only be consumable at a price point of $0, which is something that institutions like libraries and over-the-air radio have long enabled, to the betterment of creators and the public beneficiaries of creative works alike. Furthermore, even in instances when people would be willing to pay for access to a work, copyright owners may not be offering it at any price, nor are they necessarily equitably sharing the revenues derived from creative works with the actual creators whose efforts require the remuneration.

The DMCA does not adjust to reflect situations like these, nor does it incentivize copyright holders to correct their own self-induced market failures. On the contrary; it allows them to deprive the public of access to their works and to threaten the service providers enabling their access with extinction if they do not assist in disabling this access. None of these outcomes are consistent with the goals and purpose of copyright in general, and care must be taken not to allow the DMCA be a law that ensures them.

There's a lot more in the filing, including us questioning how merely linking to materials could or should be considered infringing, worries about how the DMCA can be abused to identify previously anonymous speakers and concerns about "repeat infringer" policy requirements that based on accusations rather than actual proof of infringement. You can read the whole thing at the link above or embedded below. And I'll just post the conclusion here as well:

Ultimately it is not possible to have a valid copyright law that in any part is inconsistent with the Progress Clause or First Amendment. To the extent that the DMCA protects intermediaries and with them the speech they foster it is consistent with both of these constitutional precepts and limitations. To the extent, however, that that DMCA suborns due process or otherwise compromises the First Amendment rights of either Internet users or service providers themselves to use and develop forums for information exchange on the Internet it is not. The statutory infirmities that have been leading to the latter outcome should therefore be corrected to make the DMCA’s protections on intermediaries and the speech they foster as durable as this important policy interest requires.

Filed Under: abuse, censorship, copyright, dmca, dmca 512, first amendment, free speech, notice and takedown