More Evidence That Tons Of DMCA Takedowns Are Bad News... And That People Are Afraid To Counternotice

from the it's-a-real-problem dept

Earlier this week, we wrote about a major new study that revealed that a ton of DMCA takedown notices are clearly faulty, and how that shows just how messed up the DMCA's notice-and-takedown provisions are in giving tremendous incentives to send notices with absolutely no punishment for filing bogus takedowns. The legacy music industry and its supporters keep claiming that the fact that there are so few counternotices is evidence that there's almost no abuse. In fact, in the legacy music industry filing we wrote about earlier today, they even had the gall to claim that the real abuse is in the counternotices themselves.

As more and more comment filings to the Copyright Office about the DMCA process are being released, there's increasing evidence that the legacy entertainment industry's claims are, simply, full of shit. The latest is the excellent comment filed by Automattic (the folks who make Wordpress), whose Wordpress.com offering hosts over 80 million websites. The company notes that even while hosting so much content, the majority of the time the company spends dealing with DMCA notices is... dealing with the bogus ones:

We put a great deal of resources toward processing takedown notices because we take our responsibilities under the DMCA seriously. We aim to respond to all inbound takedown notices within 48 hours, exceeding the law’s requirements. But a significant portion of the resources we put towards our DMCA program are aimed at combating the shortcomings of the notice and takedown system. For example, we spend significant effort reviewing and trying to weed out overbroad and abusive DMCA takedown notices, so that our users’ speech isn’t needlessly censored. This is a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer our customers.

As with the study we highlighted earlier this week, Automattic notes that a huge number of notices it receives are invalid. First, it notes that approximately 29% of notices simply aren't valid notices in that they fail to meet the criteria laid out by the DMCA for what constitutes a valid notice. Then, another 10% of notices do meet the criteria to be an official notice, but are "clearly false or mistaken." And that's based on their own review of the notices. So, approximately 40% of all DMCA takedown notices the company receives are bogus. But, contrary to what the legacy industry folks and their shills are saying, Automattic notes that very few people file counternotices, out of a fear of being sued, and they're concerned about how this leads to censorship of perfectly legal speech.

Our statistics bear this out. As discussed below with respect to Subject No. 30, our statistics show that about 10% of the notices of claimed infringement we receive are otherwise valid but are clearly false or mistaken. But we receive many fewer counter notifications than that—only about one-half of one percent of the total number of notices we receive. We think this ratio shows that the low number of counter notifications is not the result of a correspondingly low number of false and mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred. The company notes that out of a batch of approximately 1,700 "valid" but bogus notices, only 113 counter notices were sent. Most people just don't bother out of fear of getting sued.

The company also highlights just how broken Section 512(f) is -- which is the section that is supposed to be used against bogus takedowns. But as we've written about in the past, it's basically a dead letter. There are almost no examples of 512(f) being used successfully against someone for sending a takedown... with the one exception being Automattic! As we wrote about, a few years ago, Automattic actually sued over egregiously bad DMCA notices and even won a case, but... it was by default, because the notice sender just ignored the lawsuit. In the other lawsuit, it could never actually find the plaintiff who sent the bogus censorious takedowns.

The company also provides a number of actual examples of bogus DMCA takedown notices to get beyond just the statistical aspect and to prove the problem is real:

• A medical transcription training service that used forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
• A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
• A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
• An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
• A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.

As the company notes, each of these were clearly bogus, but since 512(f) is basically useless, it would be a complete waste of time to sue over them.

It's good to see companies sharing this kind of information, and it tracks closely with what the study from earlier this week said, which was based on a different corpus of data. So, yeah, when the legacy guys claim there's no abuse, they're simply full of shit.

Filed Under: abuse, censorship, copyright, counternotices, dmca, dmca 512, notice and takedown, safe harbors, wordpress
Companies: automattic

RIAA: How Dare The Internet Use The DMCA That We Wrote To Build Useful Services!

from the calm-down,-sparky dept

As we've mentioned, today is the day that comments are due to the Copyright Office on the effectiveness (or not) of Section 512 of the DMCA, better known as the "notice and takedown" safe harbor provisions. We'll be posting the details of our own filing at some point (possibly not until Monday as we're still finalizing a few things), but some of the other filings are starting to filter out, including a fairly astounding 97-page document from a bunch of legacy music industry organizations (about half of which is the actual filing, with the rest being appendices), including the RIAA, ASCAP, AFM, NMPA, SoundExchange and more. It's basically every organization that represents the way the industry used to work -- and the document reads like an angry polemic against the internet. It would have been much shorter, if they just wrote "our business used to be much better when we had more control and less competition -- and we never bothered to adapt, so fuck Google and all those internet companies -- and let's change the DMCA to punish them and magically bring back the good old days."

Also, the filing seems to leave out the fairly important point that it was these groups that basically wrote the DMCA that they're now whining about. Actually, let's get even more specific. The comment here was co-written by lawyer Steve Metalitz -- who has a way of showing up whenever some legacy industry is pushing to make copyright laws much, much worse. Metalitz's own bio emphasizes the fact that, as a lobbyist, he was "instrumental in the drafting" of the DMCA: So it seems rather... rich, for the legacy music industry to hire Metalitz, who proudly states that he was "instrumental in the drafting" of the DMCA while lobbying on behalf of these same groups, to now write a jeremiad about how totally awful the DMCA is for these same groups. But that's what's happened. The document literally mentions Google or YouTube more than once per page. But it starts right in with the industry's concerns, which might be summarized as "why hasn't Google stopped the evil piracy!?!?"

The Music Community’s list of frustrations with the DMCA is long. A broken “notice-and-takedown” system. Toothless repeat infringer policies. Active services mischaracterized as passive intermediaries. Incentives for services to embrace willful blindness instead of preventing known and widespread infringement. The words “representative list” read out of the statute.

Basically, Metalitz uses the document as a chance to list off how he's sad that the courts have basically ruled against copyright holders trying to chip away at the safe harbors at pretty much every turn:

Courts have also given little meaning to key provisions for content owners in the DMCA bargain. Examples include “red flag” knowledge, repeat infringer policies and representative lists. The result: safe harbor status for services that choose to stick their heads in the sand rather than do their fair share, forcing content owners to divert valuable resources from away creating content to sending minimally effective take down notices, or for content owners with limited resources, to actually refrain from sending takedown notices at all. Content owners, especially those with limited resources, simply cannot take on the entire digital universe alone.

At its worst, the DMCA safe harbors have become a business plan for profiting off of stolen content; at best, the system is a de facto government subsidy enriching some digital services at the expense of creators. This almost 20 year-old, 20th Century law should be updated.

Astoundingly, this comment claims that the results in the YouTube and Veoh lawsuits prove how broken the DMCA is and how much it favors internet companies. Remember, Veoh was a YouTube competitor that won its lawsuit that had been filed by Universal Music... but went out of business due to the legal costs of defending itself under the DMCA. And Metalitz and the RIAA are bitching about the fact that Veoh won... as if that was the travesty in the case, rather than the fact that the recording industry was able to shut down a perfectly legal web service that many people found useful.

The comment goes on to whine that even as more music is available to the public these days, revenue is down for some of those who signed on to the comment (the comment is careful not to mention that ASCAP, BMI, SESAC and SoundExchange revenue keeps going up... but... those inconvenient details must be ignored). What the filing also ignores, of course, is that these very same players fought tooth and nail against any of the innovative services that helped make this revolution in music accessibility possible. They basically now want to tax all the innovative companies who experimented and found the models that work and make consumers better off, while they themselves did none of that and actively sought to block nearly every new innovation. Talk about entitlement.

The comment also ignores the basic fact that if so much more music is being consumed today, that seems to suggest that the law must be working in some manner, seeing as the purpose of copyright law is to incentivize the creation of new works so that the public can benefit. By their own words, that seems to be happening.

Despite music being more popular than ever today, U.S. music industry revenues have been virtually flat since 2010 and are down nearly 50% since the DMCA was enacted in 1998. This has led to what we call the “value grab”, creating market distortions that lead to bizarre statistics like vinyl records generating more revenue for the industry in 2015 than the billions of on-demand ad-supported music streams on YouTube and similar services.

Except, of course, that comparison between vinyl and YouTube is total bullshit. As we were just discussing a week ago, the industry is comparing apples and oranges, using the gross "retail value" on vinyl (ignoring discounts and all the money that goes to everyone in the distribution chain) and only counting the net "wholesale value" on free streams (and ignoring the upsell opportunities or other revenue that comes from ad-supported streams).

The summary so far: we wrote the DMCA, but now we're going to whine about it. The public is benefiting like never before from new music -- so we're going to ignore that the purpose of copyright law appears to be met. We're not making as much money as we used to (ignoring that some of us are making much more than we used to)... but we see big internet companies making lots of money, so we're going to ignore that it's probably because they innovated and built services the public wanted while we sued our own biggest fans.

Compelling!

And, of course, the comment pushes for a "notice and staydown" regime:

Copyright owners should not be required to engage in the endless game of sending repeat takedown notices to protect their works, simply because another or the same infringement of the initially noticed work appears at a marginally different URL than the first time. The current standard of “URL by URL” takedown does not make sense in a world where there is an infinite supply of URLs. As described in the response to Question 15, technologies exist to identify content that is reposted on a digital service after it is removed, services of all sizes have implemented them, and they should be deployed as a standard industry practice.

Again, this ignores the basic fact that copyright is context dependent. And you can't put a total block on content, because you don't actually know if the content is actually infringing each time. Hell, remember in the Viacom case against YouTube (which the comment whines about), Viacom had to admit that the evil pirate uploaders to a bunch of the videos... were actually Viacom employees trying to market Viacom content. This is why we don't do full on content blocks, because just because the content is up, doesn't mean that it's infringing.

Even more ridiculous, while at one point noting that almost no one files counternotices, so that means that DMCA takedowns are almost all legit (despite a recent study debunking this point), it later whines that there are too many false counternotices:

In our experience, the counter-notification process results in too many false-positive counter-notices. For example, IFPI received counter-notices on 653 infringements, based on a sample of 98,753 infringements noticed to YouTube. After reviewing these counter-notices, it appeared that over 80% of the counter-notices had no good faith basis for claiming “mistake or misidentification,” the only valid statutory grounds for a counter-notification. Yet, based on this sample, the association representing the rights holders would be required to institute over 500 lawsuits in order to enforce their rights. This is an unmanageable burden. These statistics further demonstrate that the deck is unfairly stacked against rights holders.

Filing 500 lawsuits would be an "unmanageable burden?" Funny, the RIAA was able to go after at least 30,000 individuals. And, really, this paragraph acts as if filing a lawsuit is the only possible remedy in such a situation. It's not.

Also, trying to make sure that they're as evil and against the public and fans as much as possible, the comment actually decides to whine about the ruling in the dancing baby case, saying that it's some horrible burden to have to consider fair use before sending a takedown, even though they just need a subjective good faith belief, rather than an objective one:

We take this opportunity to highlight one case in particular, Lenz v. Universal Music Corp. In that case, contrary to Congressional intent and the weight of authority concerning who has the burden of claiming and proving fair use, the court held that a copyright holder must subjectively consider fair use before submitting a DMCA notice. This unique decision, and the fanfare that has followed it, is quite remarkable considering that other courts have expressly rejected that view, and that the Supreme Court has routinely held that the burden of proof for a fair use defense rests on the accused infringer.

They also whine that the newly amended version of that ruling took out the random dicta that an automated takedown system could meet the standard.

Believe it or not, that's just a sampling of all the ridiculousness in the comment. It's simply not a reality-based document. One hopes that the Copyright Office might actually recognize that, though that seems unlikely.

Filed Under: copyright, dmca, dmca 512, liability, notice and staydown, notice and takedown, safe harbors, steve metalitz
Companies: ascap, nmpa, riaa, soundexchange

DMCA's Notice And Takedown Procedure Is A Total Mess, And It's Mainly Because Of Bogus Automated Takedowns

from the needs-real-punishment dept

Both Congress and the Copyright Office continue to explore possible ways to reform copyright laws, and one area of interest to a lot of people is reforming the whole "notice and takedown" process in the DMCA. The legacy players have been pushing for a ridiculously stupid concept they're calling "notice and staydown" in which they argue that once there's a notice for a particular piece of content, a platform needs to proactively block any copies of that content from ever being uploaded again. This is dumb and dangerous for a variety of reasons, starting with the fact that it would place tremendous burdens on smaller players, while locking in the more dominant large platforms that can build or buy systems to handle this. But, even more importantly, copyright infringement is extremely context dependent. The same content may be infringing in one context, while protected fair use in another. But a notice and staydown process would completely wipe out the fair use possibilities, and potentially violate the First Amendment (remember, the Supreme Court itself has declared fair use to be the "safety valve" that allows copyright law to fit with the First Amendment).

On the flipside, plenty of folks on the platform side as well as the free speech and civil liberties communities are quite reasonably worried about the widespread abuse of the DMCA takedown process to censor content broadly not for any legitimate reason at all. We've written tons of stories of DMCA takedown abuse for the purpose of censorship, and there remains no real punishment for filing false DMCA notices. The part of the law that covers false notices has been effectively neutered by the courts so far.

As we noted earlier this year, the Copyright Office is asking for public comment on the whole notice and takedown situation, and those comments are due on April 1st. I'm sure we'll see a bunch of submissions be posted publicly around then, but one that has already come in is from ITIF, a DC-based think tank that pretends to be pro-innovation, but has always been incredibly anti-internet on a number of issues. It was the think tank that more or less came up with the ideas that became SOPA. Its somewhat laughable submission claims that abuse of the DMCA takedown process is rare, but does so in a totally misleading way:

While some notable false negatives generate headlines, the occurrence of this type of error is actually quite rare. A study that analyzed the number of section 512 notices sent by the U.S. film industry during six months in 2013, found that of the 25 million notices these companies sent, the relevant online intermediary only received eight counter notices. A more recent review of the notices sent to Twitter shows a similarly low numbers of counter notices. From July to December 2015, Twitter received 35,000 notices, but only 121 counter notices. And during the prior six months, Twitter received 18,000 notices and only 27 counter notices.

But, arguing that the only way to see abuse is by counting counternotices is ridiculous. And it suggests either a deliberate attempt to mislead by the authors of the ITIF submission, or a complete ignorance of the DMCA takedown and counternotice process in reality. In so many cases of false takedowns, people don't file counternotices. The process is made to appear complicated and dangerous. Many platforms make it clear (correctly) that filing a counternotice can lead to you being sued in federal court, where you may face statutory damages awards up to $150,000 per work infringed. But the folks at ITIF are apparently so out of touch that they don't even realize that this might scare off the vast, vast, vast majority of people who are the receiving end of bogus takedown notices. I personally know a bunch of people who have received such notices and have no interest in going the counternotice path. The vast majority of abusive takedown stories that we get sent at Techdirt involve people who don't want to file a counternotice (and often, they hope that press coverage will fix the situation instead). To focus solely on counternotices as a metric for abusive or mistaken takedowns is ludicrous and, once again, should cement ITIF as an organization that has no credibility on this issue.

Even worse, the ITIF submission encourages more automated takedown efforts, saying that such systems are wonderful, and brushing off any concerns about false takedowns:

The best way to minimize the cost of sending and responding to so many notices of infringement is to use automated techniques. In particular, online service providers can use automated filtering systems that check content as it is uploaded to stop a user from reposting infringing content

In short: automated notice-and-staydown. Incredibly, in support of this, they point to a paper from researchers Joe Karaganis and Jennifer Urban entitled The Rise of the Robo Notice, which actually takes issue with such automated takedowns. And, with a bit of perfect timing, Urban and Karaganis, along with Brianna Schofield, have just released a new paper on the effectiveness of notice and takedown under the DMCA, that basically demonstrates how totally ignorant the folks at ITIF are in arguing for such takedowns (and in claiming that it rarely goes wrong).

The research report is long and detailed, and covers a variety of different areas, but on the issue of automated takedowns, they dug deeply into the numbers, and the abusive and faulty nature of automated takedowns is not minimal, as ITIF suggests, but massive and hugely problematic:

One in twenty-five of the takedown requests (4.2%) were fundamentally flawed because they targeted content that clearly did not match the identified infringed work. This extrapolates to approximately 4.5 million requests suffering from this problem across the entire six-month dataset.

Nearly a third of takedown requests (28.4%) had characteristics that raised clear questions about their validity, based solely on the facial review and comparisons we were able to conduct. Some had multiple potential issues. While these requests cannot be described as categorically invalid without further investigation, they suggest that a very substantial number of requests in the six-month dataset—approximately 30.1 million—would benefit from human review.

This “questionable” set included requests that raised questions about compliance with the statutory requirements (15.4%), potential fair use defenses (7.3%), and subject matter inappropriate for DMCA takedown (2.3%), along with a small handful of other issues.

In other words, problems with automated takedown systems are not a tiny issue. It's an epidemic that impacts millions upon millions of pieces of content, many of which may be protected speech that gets shut down due to abuse of the law. Later in the report, they show in graphical form the types of errors they saw in going through the Lumen Database (formerly the Chilling Effects database): Notice that these are not small numbers we're talking about, but millions of faulty notices. So much for ITIF's claims that it's a barely noticeable issue. As the report notes: "the notice and takedown process, as practiced in our cohort of notices, imposes a high burden on those mistaken targets."

The report then condemns the use of automated systems, completely contradicting ITIF's recommendations (which, amusingly, were based on a misrepresentation of the same authors' work):

The rise of mass notice sending via automated systems raises immediate questions of accuracy and due process. Human scrutiny of underlying claims necessarily decreases when by-hand infringement detection, noticing, and review are replaced by automated systems. Understanding how this may affect the accuracy of takedowns was a major question in our research.

We found reason to be concerned when human review is replaced with a high degree of automation. The automated notices we examined in Study 2 were, in the main, sent by sophisticated rightsholders (or their agents) with a strong knowledge of copyright law, yet nearly a third of the notices raised questions about their validity, and one in twenty-five apparently targeted the wrong material entirely.

They also note that the lack of any consequences for those who send bogus notices means that there is no check on such notices and they're only likely to increase over time.

Furthermore, the authors note that the due process concerns raised by this system are very serious. In fact, they point out that (contrary to ITIF's silly interpretation) the lack of counternotices is a sign that the system is broken:

As a procedural matter, material that is targeted by a takedown request is often removed before the target is given the opportunity to respond; this was confirmed in interviews with OSPs and rightsholders. Yet all available evidence suggests that counter notices are simply not used. It is indicative of the problem that the most memorable uses of counter notices for our rightsholder respondents were a few bad-faith, bogus counter notices from overseas pirates. Given the high numbers of apparently unchallenged takedown mistakes that showed up in our quantitative studies, we would expect to see higher numbers of appropriate, good-faith counter notices if the process were working as intended.

Unfortunately, under current practice, there seems to be little chance of this changing. Study 1 OSPs described hesitating to encourage targeted users to send counter notices, even when it seemed appropriate, for fear of creating liability risk for targets and themselves. Unbalanced liability standards—fear of suit by copyright holders but not users—creates incentives for OSPs to take down material. Moreover, some of the main targets of large-scale requests—search services—have no service relationship with targets or any duty to inform them that links are being removed, making it highly unlikely that the target would know to send a counter notice. Further, as we discuss in recommendations, section 512 currently leaves unclear whether search engines are protected for putback like hosting entities, exacerbating the challenge. Overall, the counter-notice process’s procedural features make it difficult for OSPs to use it as intended.

The report also includes some fairly minor modifcations to the law -- including a stronger "under penalty of perjury" requirement (right now it really only applies to misrepresenting if you hold the rights to the copyright in question, rather than the rest of the notice), allowing service providers to put content back up immediately after receipt of a counternotice, and (most importantly) giving some teeth to the part of the law, 512(f), that covers bogus notices. They also suggest serious statutory damages reform, so that people issuing counternotices aren't scared off by that stupid $150,000 statutory damages number that always gets thrown around.

There's a lot more in the report, and it's well worth reading. Hopefully the Copyright Office (and Congress!) pay attention as they consider what to do about the notice and takedown process.

Filed Under: 512f, automated takedowns, brianna schofield, censorship, copyright, dmca, dmca 512, jennifer urban, joe karaganis, notice and takedown
Companies: itif

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

from the good-move dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

US Copyright Office Asks For Public Comments On DMCA's Notice And Takedown

from the well,-this-ought-to-be-interesting dept

On New Year's Eve, the US Copyright Office dropped a bit of a surprise, asking for public comment on the DMCA's Section 512 safe harbor provisions -- which are probably better known as the "notice and takedown" provisions:

The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. 512. Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices. To aid in this effort, and to provide thorough assistance to Congress, the Office is seeking public input on a number of key questions.

You can see the full Notice of Inquiry (also embedded below).

What comes out of this may certainly be interesting, but it's not difficult to predict that there will be two huge piles of responses that are more or less diametrically opposed: a group of content creators who are obsessed with the fact that they have to send takedown notices and that their works still keep popping up will complain about all of this, and say that the notice and takedown process is too onerous for content creators, and that we should move instead to a world where platforms have to pro-actively monitor things, such as with a "notice and staydown" procedure. On the flip side, you'll have plenty of people and internet platforms talking about how onerous things are from the other side: platforms are inundated with piles of requests, many of which are completely bogus, but which companies often feel compelled to take down to avoid liability. And end users face tons of censorship due to bogus and abusive takedowns.

The Copyright Office has historically come down on the side of copyright maximalists, so it wouldn't surprise me to see that the end result of this process is them suggesting more liability and responsibilities for internet platforms -- in part because they have absolutely no clue what a disaster that would be for content creators themselves. People who want to put more burdens on platforms think that this somehow helps content creators, but the opposite is true. It will mean fewer online platforms serving content creators, because the burdens will be too high. It will further entrench the large players and limit new upstarts, innovators and competitors.

If you decide to submit your own comments -- and I suggest you do -- I would hope that you focus on these "unintended" consequences of mucking with the system in the direction of further burdening these services that seem to be doing a pretty good job serving most content creators and internet users.

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

How The EU's Proposed New 'Privacy' Rules Will Be A Tool For Massive Censorship

from the takedown-takedown-takedown dept

We recently wrote about some concerns about the new Data Protection Directive that is being set up in Europe. The law is driven by people with good intentions: looking to better protect the privacy of European citizens. Privacy protection is an important concept -- but the current plans appear to be so focused on privacy protection that it gives very little regard for the unintended consequences of the way it's been set up. As we wrote in our last post, Daphne Keller at Stanford's Center for Internet and Society is writing a series of blog posts raising concerns about how the new rules clash with basic concepts of free speech. She's now written one about the immensely troubling setup of the "notice and takedown" rules included in the General Data Protection Regulation (GDPR). For years, we've been concerned by problematic notice and takedown procedures -- we've seen the DMCA frequently abused to stifle speech, rather than for genuine copyright challenges. But, for some reason, people often immediately leap to "notice and takedown solutions" for any kind of content they don't like, they and the drafters of the GDPR are no different.

Except, it's worse. Because whoever drafted the notice-and-takedown portion of the GDPR actually made the process worse than the notice and takedown rules found elsewhere. Here's the GDPR process, as explained by Keller:

1. An individual submits a removal request, and perhaps communicates further with the intermediary to clarify what she is asking for.
2. In most cases, prior to assessing the request’s legal validity, the intermediary temporarily suspends or “restricts” the content so it is no longer publicly available.
3. The intermediary reviews the legal claim made by the requester to decide if it is valid. For difficult questions, the intermediary may be allowed to consult with the user who posted the content.
4. For valid claims, the intermediary proceeds to fully erase the content. (Or probably, in the case of search engines, de-link it following guidelines of the Costeja “Right to Be Forgotten” ruling.) For invalid claims, the intermediary is supposed to bring the content out of “restriction” and reinstate it to public view -- though it’s not clear what happens if it doesn’t bother to do so.
5. The intermediary informs the requester of the outcome, and communicates the removal request to any “downstream” recipients who got the same data from the controller.
6. If the intermediary has additional contact details or identifying information about the user who posted the now-removed content, it may have to disclose them to the individual who asked for the removal, subject to possible but unclearly drafted exceptions. (Council draft, Art. 14a)
7. In most cases, the accused publisher receives no notice that her content has been removed, and no opportunity to object. The GDPR text does not spell out this prohibition, but does nothing to change the legal basis for the Article 29 Working Party’s conclusions on this point.

If you don't see how that process is likely to lead to widespread abuse and the censorship of perfectly legal speech, you haven't been paying much attention on the internet over the last decade plus. To be fair, you can understand why the drafters think this process makes sense. They're thinking solely about truly problematic and embarrassing information. If, say, your personal medical records have been posted online, it makes sense to look for a way to have that info removed as quickly as possible. But, given how frequently people use these processes in the copyright context to takedown just content they "don't like" (and how often people admit they do so because it's the only way to get such content down), you know it's going to get massively abused for issues that have nothing to do with privacy protection.

Once again, it seems like regulators focus solely on solving for the "worst case" scenario, with little thought towards how that will be applied in much more common cases, and what that means for free speech and society.

And that's not all that's dangerous about the current rules. They also deal a huge blow to anonymous speech and privacy:

A second glaring problem with the GDPR process is its requirement that companies disclose the identity of the person who posted the content, without any specified legal process or protection. This is completely out of line with existing intermediary liability laws. Some have provisions for disclosing user identity, but not without a prescribed legal process, and not as a tool available to anyone who merely alleges that an online speaker has violated the law. It’s also out of line with the general pro-privacy goals of the GDPR, and its specific articles governing disclosure of anyone’s personal information -- including that of people who put content on the Internet.

Yes, that's right. In an effort to protect privacy, the drafters are so focused on a single scenario, that they don't consider how the process will be abused to weaken the privacy rights of others. Want to know who said something anonymously that you don't like? File a privacy complaint and the service provider is just supposed to cough up their name. Again, given how often we've seen bogus defamation claims made solely for the purpose of trying to identify those who speak anonymously, this is a major concern.

There are ways to create a better process for the removal of truly illegal information, but the GDPR simply wipes most of those away in the interest of expediency in trying to prevent a worst case scenario. And the end result may be an even worse situation, in which free speech and privacy rights are broadly wiped away from many by handing a powerful censorship tool, with privacy-destroying elements, to anyone who wants to go after someone else's speech. I've long been in favor of using "notice and notice" type systems that allow whoever posted content to protest before content is taken down, but even if they're going with a notice and takedown system, there are much better ways to implement ones that at least include some semblance of due process. In addition, there should be strong penalties for those who abuse these notice and takedown procedures.

As Keller writes:

Notice and takedown laws also exist to protect people who are harmed by online content. But protecting those people does not require laws to prioritize removal with little concern for the rights of online speakers and publishers. A good notice and takedown process can help people with legitimate grievances while incorporating procedural checks to avoid disproportionate impact on expression and information rights. Valuable information that would be gone under existing laws but for these checks -- importantly including transparency about what content has been removed -- spans religious, political, and scientific content, along with consumer reviews. Crafting the law to better protect this kind of content from improper removal is both important and possible.

It would be nice to see the drafters of the GDPR at least recognize the harm they may be about to cause.

Filed Under: anonymous speech, data protection, eu, free speech, gdpr, notice and takedown, privacy, safe harbors

Authors Guild Cements Reputation As Luddites: Hates The Internet And Especially Amazon

from the fighting-against-the-future dept

The Authors Guild has something of a reputation for being anti-innovation, anti-technology, anti-future and anti-consumer. It's also anti-small author. And it appears to be flexing its lobbying muscle this week to make all of this clear. It starts off with a move to ask for a dangerous idea in copyright reform, asking the House Judiciary Committee to implement a "notice and staydown" provision in any revamped copyright law. Just last year we warned people that "notice and staydown" was the way in which the legacy copyright industry extremists were looking to rebrand SOPA, and it has quickly become the preferred language of those looking to expand copyright and to attack innovation online.

The Authors Guild letter is ridiculous beyond belief. It starts off with the usual whining about poor, poor authors unable to make a living any more.

We are writing to ask you to make certain much-needed changes to the Copyright Act to help curtail Internet book piracy. Writers' income is in steep decline. There are many reasons for this, but a decrease in copyright protection and the aggregate effect of Internet piracy play an important role: the entire publishing industry loses $80 to $100 million to piracy annually, according to a 2012 estimate by the Association of American Publishers. Meanwhile, a recent Authors Guild survey shows that approximately 67% of our authors earn less than the poverty level from their writing, with median writing-related income at $8,000, down 24% since 2009, when e-book sales started to take off.

Books provide an essential contribution to our society. Most authors don't expect to get rich from what they do: they write to inform, educate, and entertain, and in doing so add to our common store of knowledge and culture. But to keep writing, they must be able to support themselves and their families. This has become increasingly difficult in the digital age.

Notice how, like the music and movie industry's before them, the Authors Guild immediately attacks online file sharing as if it must be the cause, ignoring all possible alternatives. In the book space this is particularly ridiculous, because the lowered barriers to entry from the internet means that many authors can now be published when that wasn't a possibility before. The number of ebook authors has exploded. Perhaps -- just perhaps -- rather than blaming "piracy" for the difficulty the elite club of the Authors Guild has, they might recognize the law of supply and demand, and recognize that the greater competition means that the monetary spend on the written word has been spread more widely. That's allowed lots of brand new authors to make a living from their writing, despite being passed over by the traditional publishers.

And, yes, many do not make a living, but that has always been the case. I know many people who have written books, and even those who have tried to "make a career" of it. And most don't. It's just not that easy to make a living as a book writer, and it's not because of piracy. As authors like Paulo Coehlo have found, file sharing can help authors build a larger audience and to make more money in the long run, if they learn how to embrace their fans, rather than actively push them away, like the Authors Guild often does.

Online book piracy, once the province of shady offshore websites, has migrated to mainstream American distribution platforms. Our "Notice and Takedown" system is completely inadequate to combat this problem. What we need instead is a "Notice and Stay-Down" regime: once a webhost knows a work is being infringed, it should not receive continued "safe harbor" immunity from claims of infringement unless it takes reasonable measures to remove all copies of the same work.

As we explained last year, this is one of those ideas that copyright holders love, because they don't understand copyright law in the slightest, or how any such system would inevitably work. The main problem is that copyright is context specific. Identical copies could be infringing or not infringing, depending on context. For example, remember when Viacom sued YouTube over video clips that Viacom itself had uploaded? A "notice-and-staydown" provision takes away the context and with it plenty of non-infringing works as well.

The Authors Guild also argues that it's somehow easy for companies to automate all this:

ISPs, on the other hand, do have the ability to monitor piracy. Technology that can identify and filter pirated material is now commonplace. It only makes sense, then, that ISPs should bear the burden of limiting piracy on their sites, especially when they are profiting from the piracy and have the technology to conduct automated searches and takedowns. Placing the burden of identifying pirated content on the individual author, who has no ability to have any real impact on piracy, as the current regime does, makes no sense at all. It is technology that has enabled the pirate marketplace to flourish, and it is technology alone that has the capacity to keep it in check.

This is just wrong on so many levels. First, if the Authors Guild is so worried about big companies, a policy like this makes them more entrenched. Even if we were to accept the Authors' Guild's faulty claim that these tools actually work (they don't), the argument that tech companies now have easy access to these tools is also not true. Big companies have access to these tools. But the next generation of startups do not. Thus, this policy would leave Amazon and Google in charge and block out any new company. Is that really what the Authors Guild wants?

Second, these systems don't work. We point out false takedowns on YouTube via ContentID all the time (and frankly we don't write about most of the ones that we see). Advocating a filter that will inevitably lead to greater censorship is a ridiculous position for the Authors Guild to be taking. And, by then putting legal liability on tech companies if they don't do this makes even worse, as it will only create more incentives for the tech companies to over censor to avoid any possible liability.

There's a reason why the burden does not belong on the intermediaries and it's pretty straightforward: the intermediaries don't know if it's infringing. That's something that only the copyright holders can legitimately determine. That's why the system requires notice from the copyright holders.

The purpose of copyright is to encourage the creation of new works--including and especially literary works, which contribute so greatly to our nation's store of knowledge and culture. To continue to work effectively, US copyright law must provide meaningful protection against the widespread online piracy of books and journals, so that authors can afford to write them.

Actually, the purpose of copyright is to "promote the progress" of learning and education, and it's supposed to do that in two parts: one by creating incentives for new works, but also to then benefit the public by increasing distribution of those works. And, we're already living in a golden age with more books being written and published today than ever before. To argue that ebook piracy has somehow taken away the incentive to write... well, the evidence just suggests that's wrong. And, again, most authors never make much money at all. To complain that authors don't make enough is a different issue altogether and has little to do with copyright.

Of course, the Authors Guild didn't stop there. Also this week it went on the offense against Amazon, asking the Justice Department to investigate Amazon for antitrust violations -- even though the DOJ already looked into Amazon's practices and found them to be fine (instead finding Apple had violated antitrust law in colluding with publishers to raise ebook prices). But, don't mind the details, the Authors Guild is sure Amazon is to blame. According to the Authors Guild, the fact that consumers benefit from lower book prices shouldn't let Amazon off the hook.

Without commenting on the outcome of the Apple case, or the facts that led the majority to its conclusion, we'd like to point out the long-term dangers of interpreting antitrust law solely to favor low book prices over a thriving competitive and robust literary marketplace.

Yes, how dare you focus on the actual benefits to consumers, DOJ!

A related letter from "Authors United," again seems to attack Amazon for daring to offer good prices to consumers, as if that's some sort of horrible antitrust violation.

Personally, I think it would be great if there were more competition in the ebook space, though we have seen it start to expand, with Apple, Google and others entering the market. But, the reason those companies (despite their own market power) have had trouble making a real dent in the market is because people really like Amazon. Amazon does a pretty good job making it easy and convenient to buy ebooks, to read reviews, to find similar works, and -- of course -- to read the ebooks as well. It would be great if there was more competition -- and that it would lead to lower prices, better features and less DRM. I'd be all for it. But that's not what the Authors Guild is arguing for. They don't want an open marketplace. They don't want competition. They want higher prices and less competition from the riff raff authors who aren't signed to big publishers and aren't members of the Authors Guild.

It's not hard to see the consistent logic behind all of this. The Authors Guild doesn't like the internet at all. It used to have a good thing in the old days, pre-internet. It could keep out the riff raff, anoint authors as the chosen ones, and make money off of those few giant authors. These days it's much harder and there is a real marketplace. The Authors Guild can't compete, so it runs to the government to "fix" things. It attacks internet companies like Google and Amazon not because they're doing anything unfair, but because they're actually bringing real market economics to the market for books. And the Authors Guild can't allow that to to continue.

Filed Under: antitrust, authors, books, copyright, dmca, intermediary liability, notice and staydown, notice and takedown, writing
Companies: amazon, authors guild, google

GitHub Promises To Alert Users To DMCA Notices Before Taking Content Down

from the interesting... dept

For many, many years, we've noted the serious problems of the DMCA's "notice and takedown" provisions -- which, arguably, violate the First Amendment. A potential alternative regimen, which would be much more reasonable, and avoid many of the censorship problems of the DMCA, would be to do a notice and notice setup, in which service providers would pass along notices to the user, with an established time period for that user to respond, either by fixing the issue or issuing a counternotice. Then the service provider could decide how to respond, in either taking down the content or leaving it up. Unfortunately, that's not how the current DMCA safe harbors work. The notice-and-takedown provision does not require immediate takedown, but heavily incentivizes it by granting the service provider immunity from liability if they take the content down. This doesn't mean that the service provider is automatically liable if they choose not to take the content down (courts have found service providers to still be protected otherwise), but they can't use the simple and quick process of the safe harbor to get any lawsuits dismissed. Rather they might have to go through the full process of the lawsuit. Thus, some companies immediately take down all requested content in response to a DMCA request, just to give themselves protections under the safe harbor. Many, more reasonable, companies at least do a first-pass review over how legitimate the DMCA notice is, rejecting obviously frivolous ones, but still quickly taking down plenty of content (often mistakenly).

Github, the super popular site for storing software repositories has been hit with more than a few DMCA notices in its time -- in fact, it has a repository publicly listing them all. Just recently, we had noted some controversial ones, including Qualcomm shutting down its own repository and the MPAA taking down Popcorn Time repositories, despite them containing no MPAA copyright covered material.

Github has now made a very interesting move in changing its DMCA process to one that is basically a notice-and-notice policy, and one which also does not create collateral damage for non-infringing forks of projects.

• First, whenever possible, users will have a chance to fix problems before we take content down.
• Second, we will not automatically disable forks in a network based on the takedown of a parent repository unless the takedown notice explicitly includes them.
• Last but not least, we've published a completely revamped DMCA policy as well as a pair of how-to guides for takedown and counter notices to make our process more transparent and easier to understand.

It's that first one that is most interesting to me for a variety of reasons. The company admits that it sort of did this informally in the past, but now it's official policy:

The first change is that from now on we will give you an opportunity, whenever possible, to modify your code before we take it down. Previously, when we blocked access to a Git repository, we had to disable the entire repository. This doesn't make sense when the complaint is only directed at one file (or a few lines of code) in the repository, and the repository owner is perfectly happy to fix the problem.

In practice, our support team would often shuttle messages between the parties to work out a way for them to fix it. That usually worked out well and everyone ended up happier at the end of the day. So we are making it a formal part of our policy, and we are going to do it before we disable the rest of the repository.

It's absolutely true that this seems like a much better overall policy for everyone -- but it's still surprising (if unfortunate that it's surprising) that any company would be willing to take such a step, since, technically it's opening the company up to some amount of greater liability -- and lawyers tend to be averse to any move that may increase a company's legal liability. So, kudos to Github and its lawyers for recognizing that sometimes you have to let in a little legal risk for the good of the overall community.

Filed Under: copyright, dmca, liability, notice and notice, notice and takedown
Companies: github

Did UK Gov't Already Effectively Outlaw Anonymity Online With Its New Defamation Law?

from the that's-a-problem dept

We just recently wrote about a report by the UK House of Lords that recommends ending anonymity online by requiring that any web services collect real names and information at signup, while then allowing users to use a pseudonym. The thinking, then, is that if there is a criminal act or other violation of the law, it's easier to track down who's responsible. As we noted, there are all sorts of problems with this kind of logic, including both massive chilling effects against free speech, and the simple fact that it's not nearly as hard as some technologically clueless people believe to track down online users, even if they're "anonymous." Either way, this proposal is a big problem, and EFF spoke out against the plan.

However, as Eric Goldman alerts us, it might already be too late in the UK. That's because of a little-noticed provision in the defamation law that was passed in the UK last year. As we've discussed for years, the UK has had terribly draconian defamation laws, that more or less put the burden on the accused to prove what they said wasn't defamation. This was incredibly plaintiff friendly and antagonistic to free speech. The situation was so bad that a whole campaign was mounted to finally update the UK's defamation laws, resulting in a big change that went into effect last year. Many of the new provisions of the Defamation Act 2013 were steps in the right direction, but Goldman noted one very problematic section concerning intermediary liability for defamation claims.

The law first sets up a problematic notice-and-takedown system, not unlike what we have in the US for copyright via the DMCA. As we've seen, such laws are widely abused, and Goldman expects the similar provisions of the UK defamation law will likely be abused. But, then it goes even further: if websites want to avoid liability, they have to help identify the users accused of defamation:

However, what’s really interesting about Section 5 is its bonus requirement for UGC websites to avoid defamation liability: they qualify for the act’s protection only if the defamation victim can find the user to sue him/her. The act doesn’t explicitly say what information about its users the website operator must give a defamation victim or when (and some of these requirements will be spelled out in regulations that are being developed), but to me the implication seems clear: if the website operator can’t provide authenticated identifying information about its users, the website operator will lose the act’s protection (unauthenticated information is useless to plaintiffs if falsified).

And with that, the incentives are clearly set up so that if you're a UK site, you pretty much have to do what the House of Lords is now suggesting should be required by law: obtain real name and contact info of users, if only to avoid liability from defamation lawsuits. The law has been in effect for about a year now, and it's unclear if many UK-based websites are aware of this provision, or even if it's been used. But, of course, it only takes one high-profile lawsuit to convince nearly every site that they need to start doing this as well.

Filed Under: anonymity, defamation, notice and takedown, real names, safe harbors, uk

Study Shows How Notice-And-Takedown Reduces Transaction Costs In Making Works Legally Available

from the so-of-course-the-entertainment-industry-wants-to-kill-it dept

We've written a few times in the past about research done by Paul Heald on copyright and its impact on the availability of certain content. He's recently published an interesting new study on how the DMCA's notice-and-takedown regime facilitates making content available by decreasing transaction costs among parties. As we've discussed at length, the entertainment industry's main focus in the next round of copyright reform is to wipe out the notice-and-takedown provisions of the DMCA. The legacy recording and movie industries want everyone else to act as copyright cops, and hate the idea that notice-and-takedown puts the initial burden on themselves as copyright holders.

However, Heald's research looks at music on YouTube and concludes that the notice-and-takedown system has actually enabled much greater authorized availability of music, by reducing transaction costs. The idea is pretty straightforward. Without a notice-and-takedown provision, someone who wants to post music to YouTube needs to go out and seek a license. Of course, getting permission from all the various rightsholders is frequently impossible. The transaction costs of getting permission make it such that it's way too high. Yet, with notice-and-takedown, the person can upload the content without permission, and then the copyright holder is given the option of what to do with it. On YouTube, that includes the option of monetizing it, thus "authorizing" the use. That creates a natural experiment for Heald to explore, in which he can see how much content is "authorized" thanks to such a setup. And the result, not surprisingly, is that this system has enabled much greater authorized (and monetized) access to music than an alternative, high transaction cost system, under which uploaders must first seek out permission to upload everything.

In fact, the analysis shows a tremendous number of popular music hits from the US from 1930 to 1960 are available in what's likely an authorized (i.e., monetized) fashion, even thought nearly all of it was almost certainly uploaded by those without permission. Under the system that the RIAA and MPAA would like, this would be next to impossible. Instead, they'd want to negotiate deals first, making it nearly impossible for such works to be available, and meaning that both the availability and monetization of those works wouldn't be happening. As Heald concludes:

Congress should resist calls to dismantle platforms like YouTube which take advantage of current limits on secondary liability to create a marketplace that radically reduces the high cost of negotiating over rights to music and visual content. The access YouTube provides to valuable cultural products is far from perfect, but it provides a partial solution to the problem of disappearing works, at least in the music context. In any event, no new legislative initiative should proceed in the absence of concrete data testing the claim of copyright owners that their proposals make works more, rather than less, available to the public.

Filed Under: content id, copyright, dmca, efficiency, markets, notice and takedown, paul heald, transaction costs