Why It's Almost Impossible To Get Punished For A Bogus DMCA Takedown

from the not-going-to-happen dept

Yesterday, we wrote about the latest in the long running saga that is Stephanie Lenz's battle (with the help of the EFF) over whether or not Universal Music was right to issue a DMCA takedown for her 29 second video of her toddler son dancing to a (barely audible) Prince song. Once again, here's the video. As we noted in the story, it seemed unlikely that Lenz and the EFF would prevail in getting Universal Music to pay up for the bogus takedown. Joe Mullin, who was in the courtroom during the latest hearing provides some additional details that highlight just why this is going to be difficult for them. The problem isn't necessarily the case or the situation, but the fact that the parts of the DMCA used to push back against bogus takedowns are ridiculously weak. It has been determined that only in cases of "subjective bad faith" would there be fees awarded. That means EFF has to show that Universal knew that this was fair use, and then decided to issue the takedown anyway.

[District Court Judge Jeremy] Fogel said that it isn't clear that EFF has met the high burden of showing that Universal exhibited "subjective bad faith."

EFF would have to show that there's no way the video was not fair use, first of all. In addition, EFF lawyers would have to show "there was some concerted activity on Universal's part to blind itself to that fact—that even knowing they had nothing to stand on with regards to fair use, they put out a takedown." Even if EFF could show that Universal Music acted recklessly or with negligence—that wouldn't be enough.

That's a pretty tall order, and a clear weakness in the DMCA in preventing bogus takedowns (an all too common phenomenon). While the EFF properly points out that Universal's employee who sent the DMCA "had no idea what to look for," that still might not be enough to show subjective bad faith -- just laziness.

Additionally, there is some skepticism about if it's worth fighting this through, since the amount of money at stake is minimal:

The amount of damages EFF is fighting for is tiny, in the grand scheme of things. And Fogel also expressed skepticism that EFF could ask for much in damages. He has already limited the amount they can ask for. EFF is asking for compensation for 10 hours of Lenz's time, spent dealing with the takedown notice before she contacted EFF, based on the Pennsylvania minimum wage at the time of $6.25 per hour. They're also asking for compensation $1,275 for the time that EFF attorneys spent advising her pre-suit.

Despite the fact that not much money can be won, in an interview with Ars, [EFF's Corynne] McSherry said that the principle is still important, so that content owners will pause before they shoot out takedown requests.

I understand the principle argument -- but courts often aren't that interested in spending time on such cases, which they believe are wasting time from cases that are more important. At the very least, Judge Fogel appears willing to let a jury weigh in on this one, and has noted that despite all of the hurdles EFF and Lenz face, it's not a complete slam dunk for Universal: "A reasonable fact-finder could conclude, that this is an action taken in subjective bad faith."

And so the case moves on. I'm still betting that Universal Music will be happy with the end result, and I worry that the resulting precedent will be used to justify more broad and bogus takedowns. Hopefully, I'm proven wrong.

Filed Under: bogus takedown, dancing baby, dmca, fair use, stephanie lenz
Companies: eff, universal music

Curiosity's Mars Landing Video Disappears From YouTube Due To Bogus Copyright Claim

from the happens-once-a-month dept

We hear from copyright system supporters that bogus copyright takedowns are rare and we only highlight the "exceptions." Of course, it seems like there are an awful lot of these exceptions. The latest is that with the massive success of last night's Mars landing of the Curiosity Rover, NASA posted the video to YouTube for those who didn't watching the thrilling, suspenseful landing live... except, if you checked out NASA's own YouTube page a few hours later, you got this:
screenshot courtesy of Motherboard It's back now, but as Vice's Motherboard blog explains, this kind of thing happens all the time. They spoke with Bob Jacobs, NASA’s Deputy Associate Administrator for Communications, who said that this happens about once a month, and almost always happens with NASA's popular videos.

“We spend too much time going through the administrative process to clear videos slapped with needless copyright claims,” says NASA’s Bob Jacobs. “YouTube seems to be missing a ‘common sense’ button to its processes, especially when it involves public domain material paid for by the American taxpayer.”

Jacobs is quite reasonably annoyed at the lack of consequences for these bogus takedowns:

“There seems to be few consequences for companies that engage in such activities, which often include legitimate news organizations. We do agree that people who make false copyright claims against our material should be held accountable, regardless of their automated systems.”

What's amazing here is that Scripps is a repeat offender with NASA. Back in April, people noticed that it had forced the removal of NASA's (again, public domain) footage of the Boeing 747 that carried the space shuttle Discovery to the Smithsonian (its "final journey"). But, of course, there aren't many (or even any) serious consequences for these kinds of mistakes. While it's not clear what happened, it seems likely that Scripps replayed the footage itself somewhere, and via some semi-automated process uploaded it to YouTube's ContentID, in which it claimed copyright on all its works. But, of course, it was actually broadcasting public domain video from NASA. Unfortunately, YouTube can't recognize that Scripps is the latecomer here, rebroadcasting others' public domain material, and thus took down the material, only to have it corrected later.

Given that Scripps is now a repeat offender, it seems that perhaps YouTube should cut it off from automatically censoring others' videos.

Oh, and if you want to know one of the reasons we're so concerned about a possible broadcast treaty (which the US government is now supporting), it's because it actually would make these kinds of claims quasi-legal, in that broadcasters who broadcast public domain material could then claim a separate "broadcast right" over that footage. Even without that, we see operations like Scripps abusing the law. Do we really want to expand that power?

Now, since the video is back up, here's the actual (public domain) footage, in case you missed it (and if you did miss it, you should watch it, as it really is incredible):

Filed Under: bogus takedown, contentid, copyright, curiosity, dmca, landing, mars, nasa, public domain, takedowns
Companies: scripps