Fox News Uses DMCA To Take Down Videos Used In Commentary

from the notice-and-takedown-is-broken dept

The DMCA has plenty of problems, but one of the more ridiculous is the whole concept of the "notice and takedown" procedure that service providers need to follow. Basically, if a copyright holder feels that its copyright is being infringed, it sends a DMCA notice to the service provider. In order for that service provider to keep its safe harbors that protect it from being liable for the content, the content has to be quickly taken down. At that point, the user can file a counternotice, but there's an extended period of time during which the service provider can consider the counternotice and decide whether or not to put the content back up. The reason it's set up this way is because the content companies who were pushing for the law convinced Congress that copyright violations online could be so damaging that content needed to be taken down immediately to prevent any "harm." The only "concession" to the fact that this process was likely to be abused was that filing a false takedown notice can get you in trouble as well. However, the process is still regularly abused to stifle speech.

Take for example, the latest example, presented by the EFF, who notes that Fox News has used the DMCA takedown process to pull down three clips from Fox News that were being used by a group called Progress Illinois who was using the videos as part of commentary on current events -- a common and valid fair use of content. However, since YouTube had to quickly pull down the videos and is now taking time to review the counternotification, it makes it nearly impossible for Progress Illinois to use the videos in a timely manner.

This is yet another example of how copyright is used to stifle free speech. This isn't just about "protecting" content or creating incentive to create more content. There's no commercial loss to Fox News to allow these videos to be used in this way. Forcing the immediate takedown serves only one purpose: to stifle free speech. In fact, you could make a decent argument that the DMCA violates the First Amendment with this policy (you know, "Congress shall make no law... abridging the freedom of speech...."). Given the seriousness of how such a process can stifle free speech, it's difficult to come up with a compelling reason why the DMCA shouldn't at least allow a "notice and notice" procedure, whereby the user accused of infringement is at least given a chance to respond before the content is taken down.

Filed Under: copyright, dmca, first amendment, free speech, takedown
Companies: fox news

Record Labels Continue To Go After Music Startups

from the onwards-and-downwards dept

On Friday, we wrote about how the likelihood of eventual lawsuits created a chilling effect that shut down Mixwit, a useful online mixtape service provider. It seemed quite unlikely that Mixwit was violating copyrights, as it didn't host any music nor make the music that people played through available for download. However, that won't stop the record labels who seem to believe that any service that lets you play music must first receive the big record labels' blessing (and, in case you were wondering, that blessing costs a lot of money, and often equity).

Earlier this year they sued one such startup, called Project Playlist. Similar to Mixwit, Project Playlist doesn't host any music. It just sends a search query to a variety of search engines, finds results of publicly available music via those search engines and then aggregates the results into a playlist. It then allows you to create widgets with that playlist. All of this should be perfectly legal. Project Playlist simply has no way of knowing whether the music found via various search engines is legal or not. It's not doing any of the hosting. It's not allowing downloading for infringement purposes. It's difficult to see what possible complaint the record labels have with it, other than the simple fact that it's a good innovation that people like, and no one's paying the big record labels for it.

Of course, lawsuits take some time, and apparently (unlike some other startups) Project Playlist hasn't simply folded when the lawsuits showed up. The company, which has raised a significant amount of money and has brought on experienced internet execs seems to be fighting back. So what did the record labels do? Well, they went after third parties, such as MySpace and Facebook who host the widget from Project Playlist. This is even more untenable than the lawsuit against Project Playlist. MySpace and Facebook are even further away from any liability, because as open application platforms, they don't even know much of what their applications do, let alone that one may be going to search engines, finding publicly available songs, putting them into a playlist and letting people stream them.

But, why should anything like that stop the record labels? So, late last week, MySpace gave in and locked out Project Playlist widgets while Facebook seems willing to push back on behalf of users. MySpace's move really isn't that surprising, since MySpace launched its MySpace Music offering to terrible reviews and (from the buzz we've heard from insiders) much less use than projected. MySpace Music competes directly with Project Playlist, so the company must be thrilled about an excuse to shut down access to Project Playlist, even though the end result might just drive users away, and make app developers that much more cautious about betting on MySpace as a platform.

Apparently, record label folks are claiming that Facebook's refusal to block Project Playlist is "irresponsible," which is laughable coming from the recording industry -- perhaps the most irresponsible and short-sighted industry around. Facebook knows that it has the law on its side, and at best the recording industry can launch a wasteful, money-sucking lawsuit against it, which will only drive music fans further away from the recording industry. If the record labels want to talk "irresponsible" they should look at themselves in the mirror first.

Update: Interesting timing here. Apparently Sony BMG has worked out a deal with Project Playlist. While News.com designates this as "good news," I'm not so sure. Yes, it's probably good news from the standpoint of avoiding a lawsuit, but it's bad news from the standpoint that Project Playlist was pressured into signing a deal that legally it almost certainly does not need. It's now set a precedent that rather than stand up for its rights, if you threaten enough, the company will fork over money (and potentially equity). Once again, this just reinforces the record labels' incorrect position that no one should be allowed to innovate in the music space without paying a toll to the big record labels.

Filed Under: copyright, playlists, takedown, widget
Companies: facebook, myspace, project playlist, riaa

MPAA Effectively Shuts Down Largest Fan Edit Movie Site

from the can't-make-stuff-better dept

One of the great things about Matt Mason's The Pirate's Dilemma books is the never-ending examples of how allowing people to take content and remix it leads to greater overall creativity and almost always opens up new opportunities for the original -- even as the original creator sometimes freaks out about it. A great example of this is with movie fan edits -- attempts by fans of certain movies to make the movie even better by re-editing it, changing scenes around, cutting out certain scenes, adding in new special effects or even new scenes entirely. Such efforts are non-commercial, and tend to increase attention and interest in the original film. The first such popular fan edit came after the release of The Phantom Menace, back in 2001, when fans were upset about a variety of things (Jar Jar Binks' character being a big problem). What came out of it was The Phantom Edit. The resulting attention caused many more people to get into the business of editing films.

TorrentFreak reports that one of the biggest sites for sharing such fan edits has effectively been shut down by the MPAA, which sent a DMCA takedown to the site's hosting provider, forcing the site to pull all of its download links. Prior to this, there were no specific complaints, and Lucasfilm apparently was a big supporter of various fan edits. Considering the nature of fan edits, it's difficult to see how these are likely to diminish the commercial value of a movie. Some might claim that people will be drawn to the fan edits, rather than the authorized cuts of a movie, but that seems unlikely for most people. Realistically, the only folks who are going to invest their time in watching a fan edit would be someone who was already a fan of a specific movie, and was interested in how other fans had re-imagined and re-cut the film.

Lucasfilm has been able to build up tremendous goodwill among fans by allowing such fan edits, knowing that they tend to make fans of various films even more attached to the originals. It's disappointing, though not surprising, that the folks at the MPAA would rather shut off such creativity rather than encourage it.

Filed Under: copyright, dmca, fan edits, fanedits.org, movies, takedown
Companies: mpaa

Facebook Using DMCA Notices To Takedown Private Videos?

from the say-what-now? dept

You may remember last month that we had a story about Google taking down a video on Google Video for copyright infringement, even though the video itself (a brief Christmas home movie) was set to private, and only 3 or 4 people had seen it. We were curious as to why Google would be scanning videos set to private and taking them down. At least in that case, Google admitted that it was an automated scanner (though never explained why it was reviewing private videos).

However, some friends of mine are now facing a similar, but more worrisome, situation with Facebook. A friend got married back in July, and some other friends who were in attendance filmed various parts of the wedding ceremony and reception. As is pretty common these days, they later took the best clips from those videos, set them to music and posted them to Facebook -- but set the videos to only be shared directly with friends. My friend Hersh used two songs dubbed over the video, one by a relatively unknown artist, Xavier Naidoo, and one by Kanye West. My friend Michael had an entirely different video, and used two different songs. One by the Deftones, and one by Jason Mraz.

Even though both videos were posted in July, and both were set to be only viewable to friends, rather than made public, both Hersh and Michael received DMCA takedown notices from Facebook with the videos taken down. The takedowns (which both sent me) don't specify that Facebook received a takedown, though they do point them to a "counter-notification" page, which is what the DMCA would offer. So, from what's been presented, it's unclear if Facebook actually received a DMCA or just decided on its own to take down two private videos of the same event on the same day.

While, technically, (and this point is arguable) these videos may be infringing, there's a good case to be made that they were fair use. They most certainly were not commercial in nature, and most clearly did not diminish the commercial potential of the works in question. In fact, Hersh named 3 of our friends who specifically had asked him who Xavier Naidoo was, so they could go find more of his music. Now Hersh can no longer promote Naidoo's music. That seems to go against everything that copyright is supposed to be about.

Neither is going to file a counternotice, because of the gray area concerning whether or not this is fair use (something Hersh understands quite well as a law student), and Facebook's form makes you swear under penalty of perjury that the content is legal. The whole incident raises a bunch of questions about how Facebook goes about taking down private videos, and why such videos are considered copyright infringement in the first place. In the meantime, if you have videos with backing music in them, apparently you're not welcome at Facebook.

Filed Under: automated takedown, dmca, good faith beliefs, privacy, takedown, videos
Companies: facebook

Computers Don't Have Good Faith Beliefs

from the fun-with-takedowns dept

My soon-to-be colleague David Robinson has a great post about the recent dancing toddler copyright story, in which he tries to puzzle out the DMCA's implications for automated takedown programs. The DMCA provides copyright holders with a remedy for online materials they believe to be infringing: they may send a notice to a relevant ISP demanding that the materials be removed. ISPs have a strong incentive to comply with such requests, because doing so gives them immunity from liability for the copyright-infringing activities of their customers. Hollywood has used this process aggressively, sending thousands of takedown notices to companies like YouTube. To prevent abuse of the takedown power, the DMCA also provides that anyone who "knowingly materially misrepresents" the copyright status of a work is liable to the target for damages and attorney's fees.

One interesting question is whether the DMCA allows fully automated takedown requests, or whether the law requires that a human being review each takedown notice before it is sent. The law requires copyright holders to state that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." The key phrase here is "good faith belief." In order to state that one has a good-faith belief, one presumably has to form a good-faith belief in the first place. And obviously, an automated script is incapable of forming a good-faith belief about anything, so any takedown sent by an automated script would be a lie.

David suggests that copyright holders could form "good faith beliefs" in a statistical sense—that if their script were accurate enough, they could form a "good faith belief" that the vast majority of materials identified by the script was infringing, even if they hadn't identified each one individually. But I don't think this line of reasoning works. As EFF's Fred Von Lohmann notes in the comments, the liability provision isn't an aggregate inquiry. It asks, for each takedown, whether the copyright holder had misrepresented the copyright status of the work in question. If a copyright holder sends an erroneous takedown notice, it is of no comfort to the recipient—and of no relevance to the law—that the copyright holder also sent a number of valid takedown notices the same day. For each mistaken takedown notice, the question the courts must ask is whether the misrepresentation was "knowing" and "material."

One plausible interpretation of this language would be that since no human being reviewed the takedown notice, the mistake couldn't have been "knowing," and therefore the sender of an automated takedown could never be liable. This, however, would make a mockery of the purpose of the statute, which was to deter reckless or malicious use of the takedown power. If failing to examine material at all before issuing a takedown were sufficient to confer immunity, that would totally undermine the purpose of the statute. For this reason, I think the test put forward by EFF in the dancing toddler case—whether a copyright holder exercising reasonable care should have known the material was not infringing—makes more sense. And on this reading, companies would likely be free to issue automated takedowns, but they would be liable for any takedowns that were clearly erroneous. As Fred points out, this gets the incentives right, because it gives Hollywood a strong incentive to use automated takedown scripts judiciously.

Filed Under: automated takedown, dmca, good faith beliefs, takedown

AMC Upset That Fans Are Making Mad Men More Fun; Sends DMCA Notices To Twitter

from the damn-those-fans dept

It's really amazing how many times we see companies using the DMCA to shut down and stamp out fan efforts to help promote some content. Take, for example, the latest situation pointed out by MG Siegler over at VentureBeat. Apparently, cable TV network AMC has been sending DMCA takedown notices to Twitter because some fans of its popular show Mad Men have created Twitter accounts for the main characters in the show. The fans are staying in character and adding to other fans' appreciation of the show. In some ways, this is similar to the situation we described recently where a fake representative of Exxon showed up on Twitter, even though she did a good job representing the company. Yes, the show wants to be able to control its own promotions -- and perhaps it's planning to create Twitter accounts itself, but it seems that there would be better ways to deal with this than shutting down fan-created accounts that people were enjoying. Update: Looks like someone came to their senses thanks to the widespread outrage, and has agreed to put the feeds back.

Filed Under: dmca, fans, mad men, takedown, twitter
Companies: amc, twitter

But What If A Takedown Notice Isn't Actually A DMCA Takedown?

from the legal-gymnastics dept

We already covered the judge's ruling about how copyright holders need to consider fair use before sending a DMCA takedown notice, but there's another part of Universal's position in this case that has been widely ignored (even by the judge in the case), but which Ethan Ackerman wisely calls attention to: Universal claims that the takedown letter doesn't violate the DMCA because it wasn't actually a DMCA takedown. Instead, they said it was just a friendly "request."

This may seem like a silly assertion or, at best, a minor side point, but it could become quite important. The DMCA has some very specific conditions that those sending takedowns need to meet -- but there's nothing really stopping anyone from sending a request that isn't specifically a DMCA takedown notice. For copyright holders, this would remove some of the power of the takedown notice, as it wouldn't require the service provider to react, like a DMCA notice does. However, if rulings like this one stand, adding some amount of liability to copyright holders sending DMCA takedown notices, some may actually find it safer to send non-DMCA takedowns on the assumption (probably correct) that most service providers will treat them exactly the same as a DMCA takedown. In other words, would copyright holders "opt-out" of the DMCA terms in order to avoid that liability? It will be worth watching.

Of course, in this case, the court just assumed that even if it didn't hit all the criteria, it was for all intents and purposes a DMCA takedown letter. But that won't always be the situation in future cases -- especially if copyright holders become even more explicit that the letters aren't DMCA takedowns, but some other type of takedown request. And, of course, this could expand as well -- where a total non-copyright holder could send such "requests" for takedowns, and they conceivably might not be violating the DMCA's provision against false takedowns, because they won't even fall under the DMCA. One way or the other, you can bet lawyers are going to be busy.

Filed Under: dmca, takedown
Companies: universal music

IFPI Forces Music Offline, Even Though Copyright Holder Wanted It Shared

from the all-about-the-musicians,-huh? dept

When challenged on what they're doing, organizations like the RIAA and the IFPI will often claim that they're just trying to help musicians. That's obviously untrue, as they represent the record labels -- who have a long history of an antagonistic relationship with the musicians they work with. We're seeing more and more cases where this conflict is being made quite clear as the RIAA and IFPI attacks fan actions that the musicians in question would prefer be left alone. Reader Xavier sends in this example of a music blogger who received a cease and desist from the IFPI that not only contained numerous mistakes, but was disputed by the musician himself.

When the blogger received the cease-and-desist (which named the wrong song, but pointed to a specific URL on his blog), he sent the band a note via their MySpace page, to which the lead singer of the group responded:

"You definitely have my blessing as one of the 4 holders of the copyrights to that specific recording. I actually think this is bogus. Anyways thanks for posting that on your site. It was lovely to see it out there doing the rounds. We didnt take it to radio so your helping with the pollenation of the nation."

Of course, the blogger was (rightfully) worried that the IFPI might have his hosting company take down the site and/or charge him with a lawsuit, so he took down the song anyway. Nice to see the IFPI looking out for the best interests of the musicians, huh?

Filed Under: ifpi, music, music bloggers, takedown, travis
Companies: ifpi

Viacom Demands YouTube Take Down Viral Video Made By Viacom

from the read-that-again dept

We know that Viacom really dislikes YouTube, but it seems to have taken that hatred a bit beyond reasonable (assuming you don't already consider its $1 billion lawsuit unreasonable). For the MTV Movie Awards (MTV being a Viacom property), Ben Stiller, Jack Black and Robert Downey Jr. made a "spoof" viral video to try to get attention for their upcoming comedy movie, Tropic Thunder. The clip was well done, and clearly recognized all the key ingredients to make a viral video a winner. So what happens with a viral video? Well, it gets sent around and, most likely, gets placed on YouTube.

So, what does Viacom do? Well, thanks to reader Cannen for pointing out the news that Viacom sent a takedown notice to YouTube. MIT's YouTomb project is tracking the takedown. It makes you wonder if Viacom is so blinded by its hatred of YouTube that it missed the point of a viral video being that it be allowed to be... you know... viral.

Filed Under: takedown, tropic thunder, viral video
Companies: google, viacom, youtube

Once Again, The DMCA Doesn't Let You Takedown Any Content You Don't Like

from the eff-on-the-case dept

Sometimes people have a difficult time understanding that something they dislike isn't necessarily illegal -- and because of it, they can sometimes take legal action even though they have no right to do so. This is quite common with the DMCA, where we've seen numerous examples of people abusing the DMCA in this manner. Luckily, the EFF has been fighting back against many of these bogus DMCA takedowns, and the latest is the case where an anti-animal cruelty group posted a bunch of videos showing treatment of animals at a rodeo.

No matter what you think of the group's position, the rodeo still had no right to send a DMCA takedown notice, since it didn't own the copyright on the videos -- but that didn't stop the rodeo from filing the DMCA takedowns anyway. Again, it seems like a case where the rodeo didn't like the videos, and thus assumed they simply must be illegal, even if their complaint had nothing at all to do with copyright. Speaking of which, it's not clear under what rules Henry Nicholas, the recently indicted founder of Broadcom, was able to get YouTube to remove a video of himself ingesting white powder. However, in a filing with the company, his lawyer insisted the person in the video was Nicholas, and asked that the video be removed.

Filed Under: dmca, henry nicholas, rodeo, takedown