Gasp! YouTube Shutters Account For Person Committing DMCA Takedown Fraud!

from the praise-be dept

It should come as no surprise to regular Techdirt readers that the DMCA takedown process is not only wide open to fraud and abuse, but that those avenues are regularly used in real life for just those purposes. Takedowns to silence criticism, takedowns to try to steal traffic from others, or takedowns or monetization claims just to get some paltry amounts of streaming revenue: the point is that this shit happens all the time. What absolutely does not happen with any frequency is the folks behind these bogus actions getting punished in any way for their behavior.

And so when it does happen, it's worth highlighting it, putting it on a podium, and trying to have it become the norm rather than the exception. To that end, let's highlight YouTube actually banning an account that appeared to be sending fraudulent DMCA notices.

Yesterday, the owner of the “Musical Creator” channel complained that their channel had been terminated after submitting a copyright takedown request. The operator of the channel doesn’t appear to be a native English speaker as the comment below shows, but it’s clear that they disagree with this decision.

“My youtube channel MUSICAL CREATOR has been terminated due to inlegal information copyright infringement. But I not violating any policy of youtube, I don’t know how my channel is terminated I filled out all the information legal. I want to get back my channel again,” the operator writes.

Now, a couple of things to say here. First, the channel's name is "MUSICAL CREATOR"? Hmm, okay, totally doesn't sound like the kind of thing you would create just to send DMCA notices and try to monetize others' content. And we don't have any details from YouTube as to what specifically was the issue with whatever takedown notice MUSICAL CREATOR sent. Instead, all we have is this from YouTube's notice directly.

“We are concerned that some of the information within this legal request may be fraudulent,” YouTube’s response reads. “Please understand that YouTube receives a large number of fraudulent copyright takedown requests, and we take abuse of that process very seriously.”

While that doesn't tell us much or let us vet out whether fraud was actually committed or not, it's worth keeping in mind again that YouTube takes very little action on this sort of thing generally speaking. By which I mean that the fact it took action in this case leads me to believe YouTube thinks it's on very, very solid footing here.

As a result, the MUSICAL CREATOR account is down. Anyone going to its page is simply told that the account is offline due to "a violation of YouTube's Terms of Service."

Again, it's hard to be completely assured that YouTube's actions in this case are appropriate... but I suspect they are. And, purely as a matter of percentage cases, the fact is that YouTube and other platforms have historically been so vastly on the side of those issuing DMCA notices instead of the potential victims of fraud that it makes stories like this unique.

Even though they shouldn't be.

Filed Under: censorship, copyfraud, copyright, dmca, dmca 512, notice and takedown, takedown fraud, youtube
Companies: youtube

UFC COO Publicly Pushing 'Notice And Stay Down' Reforms To DMCA, Despite That Being Horrible For Almost Everyone

from the fight! dept

In the United States, the DMCA has a "notice and takedown" process. Section 512(c) outlines all of this and provides details on what obligations service providers, such as websites and social media platforms, must meet in order to retain their safe harbor provisions. This summary from Wikipedia is a good primer:

The Online Copyright Infringement Liability Limitation Act, passed into law in 1998 as part of the Digital Millennium Copyright Act provides safe harbour protection to "online service providers" for "online storage" in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.

I added the bolded section for emphasis. Why? Well, many in the copyright industries hate the notice and takedown system because it requires them to notify service providers of individual cases for infringement. That requires work, of course. Work that these service providers very much do not want to do. Instead, many propose a notice and stay down system. What that would do would be to allow the copyright holder to essentially notify a service provider of infringing material once, after which it would be up to the service provider to do the policing of that content on their own sites. This was recently exemplified by the UFC's COO, Lawrence Epstein.

The DMCA is a “very reactive type of protocol,” Epstein notes, since the law places the onus on the copyright holder to act. This presents a timing problem for a live sports broadcast. The highest value for that broadcast—especially one distributed through a PPV arrangement—is when the event happens. A notice and takedown can take several minutes, even a half hour. By the time an illegal stream is removed, it could be too late. The Poirier-McGregor match lasted only about five minutes before McGregor suffered a leg injury and Poirier was credited with a TKO victory.

“It’s not an appropriate remedy,” Epstein charges, adding that the “vast majority” of the piracy is taking place on “big platforms like Facebook, YouTube and Twitter.” Epstein also stresses that “we see the same people doing it. There are repeat offenders who aren’t deterred by the process.”

The UFC would like to see the DMCA amended to include a “stay down system” whereby the copyright holder need only notify the service provider of infringing material. It would then become the obligation of the provider to monitor repeat infringers and prevent them from engaging in illegal streaming and other piracy on the provider’s platform. “These big platforms have to take responsibility for what happens on their platforms,” Epstein asserts. “It can’t be reactive.”

For context only, the latest UFC PPV event raked in $125 million. And, to be clear, I can sympathize with Epstein on the concept of how this all works for live-streamed, pay-per-view broadcasts. It's not the same policing a movie on the internet as it is policing infringing live-streams.

But, and this is the key part, that is a business model issue, not an issue requiring the wholesale retrofit of the DMCA. Put another way, if the notice and takedown system is overall beneficial for most of the public interest, altering it is not an appropriate remedy simply because it isn't working for the UFC.

And there are very good reasons why a notice and takedown system is better for nearly everyone than a notice and stay down system. For starters, while Epstein invokes the "big players" like Facebook and the like, those big entities are the ones that at least would stand a chance of operating in a notice and stay down system. They have the money, tools, and people to throw at the problems such a system would create. But what about smaller companies and sites? Startups? How in the world are they going to police other people's content for them? They won't and the liability such a system would create will keep startups from every... you know... starting up.

Beyond that, it's not like the "stay down" part works well in practice even when tried. The uploading of content by one person that is infringing does not make the uploading of it by another infringing. Viacom found that out directly by suing Google over a bunch of YouTube videos... that Viacom staff uploaded on purpose. In an effort to stop piracy, Viacom attempted to stop promotion of its own material by its own staff. If the companies responsible for content can't properly police copyright infringement of that content, what hope do service providers have?

And, as one professor explains to Yahoo! Sports, there is all of that plus issues of fraud and censorship that suddenly are opened up by a stay down system.

Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients in the sports and entertainment law industries, agrees that placing the burden on copyright owners to police copyrights creates persistent challenges for owners in a world where streaming has become so omnipresent. “Given the enormous amount of copying and performing that occurs online,” Vacca explains, “it’s understandable that content owners want to shift that burden to other actors in the online ecosystem.”

Yet Vacca also sees “countervailing concerns” that could arise ”if the law is changed to make it too easy to have materials taken down.” He cautions that some copyright owners make infringement claims “not to protect their copyright, but to censor legitimate uses of copyrighted materials, such as critical commentary or parody.” Vacca adds that placing the burden on platforms “has the potential to disadvantage startup competitors by imposing additional costs on them that are more difficult to absorb than for established companies such as Facebook, Twitter and YouTube . . . This could have a negative effect on innovation for online platforms.”

So, the open question in summary is: should we really be altering the DMCA that has allowed for so much innovation and flourishing within the online ecosystem just so the UFC can possibly make even more than the $125 million per event it's making now? That feels like a question with an obvious answer.

Filed Under: copyright, dmca, dmca 512, lawrence epstein, notice and staydown, notice and takedown
Companies: ufc

The Digital Copyright Act: We Told Senator Tillis Not To Do This, But He Did It Anyway. So We Told Him Again.

from the deaf-ear dept

Back in December, the Copia Institute submitted comments to Senator Tillis, who wanted feedback on making changes to the DMCA. It was a tricky needle to thread, because there's a lot about the DMCA that could be improved and really needs to be improved to be constitutional. At the same time, having protection for platforms is crucial for there to be platforms, and we did not want to encourage anything that might lead to the weakening of the safe harbors, which are already flimsy enough. So our advice was two-fold: address the First Amendment problems already present with the DMCA, and check what assumptions were driving the reform effort in order to make sure that any changes actually made things better and not worse.

None of that happened, however. The draft legislation he proposed earlier this year, called the Digital Copyright Act, or DCA, is so troubling we haven't even had a chance to fully explain how. But at least he invited public comments on it, so last week we submitted some.

In short, we repeated our original two points: (1) as Mike wrote when it was originally unveiled the DCA, with its "notice and staydown" regime, has an even bigger First Amendment problem than the DMCA already does, and (2) the proposed DCA legislation is predicated on several faulty assumptions.

One such assumption is that the DCA appears to regard Internet service providers as little more than parasitic enterprises that must only be barely tolerated, rather than the intrinsically valuable services that have given artists greater opportunities for monetization and developing audience reach. Indeed, it was the recognition of their value that prompted Congress to try to protect them with the safe harbor system in the first place, whereas the DCA would all but slam the door on them, crushing them with additional burdens and even weaker liability protections. Sure, the proposed legislation offers to throw them a few bones around the edges, but in major substance it does little more than put them and the expression they facilitate in jeopardy.

And for little reason, because another significant misapprehension underpinning the DCA is that it helps creators at all. The DCA strengthens the power of certain copyright holders, certainly, but it doesn't follow that it necessarily helps creators themselves, who are often not the actual copyright holders. In fact, in certain art forms, like music, it is frequently the case they are not, and we know this from all the termination litigation where creators are having to go to great effort to try to recover the copyrights in their own works—and are not always succeeding.

As we pointed out:

Over the years we have evolved a system where creators can get—and in certain art forms like music often have gotten—locked out of being able to exploit their own works for decades. In fact, thanks to term extensions, they may be locked out for longer than they ever would have expected. As a result of getting locked out of their works, not only can they not economically exploit these works directly but they cannot even manage their overall relationship with their market: their fans. Even when it would be in their interests to give their fans a freer hand to interact with their works online, they cannot make that decision when the conglomerates and billionaires who own those rights are the ones sending takedown notices targeting their fans' postings, or, worse, their entire accounts. The DCA only further entrenches the power that these strangers can have over creators, their works, and their audiences and yet somehow presumes it will incentivize further creativity from the very people the system makes powerless.

In sum, the DCA is a mistake that Congress should not further pursue. It does nothing to help creators profit from their work, or help us do anything that will help get us more. It just gives certain people more power to say no to innovation and expression, which is exactly the opposite of what copyright law is for.

Filed Under: 1st amendment, copyright, dmca, free speech, notice and takedown, safe harbors, thom tillis

Reform The DMCA? OK, But Only If It's Done Really, Really Carefully

from the running-into-minefields dept

The DMCA is a weird law. It's comprised of two almost completely unrelated provisions: Section 512, with its platform safe harbors, and Section 1201, which forbids circumventing technological measures. Both parts are full of problems, but to the extent that the DMCA provides platforms with liability protection via the safe harbors, it is also a critically important law. We are therefore fans of the DMCA because of this platform protection it provides, but it's like being fans of a terrible actor who had one absolutely fantastic performance in a classic movie we can't stop loving, even though the rest of his work is unwatchable dreck. In other words, we can't pretend the law is without its appeal, but we nevertheless fervently wish it were a whole lot better since we're stuck having to deal with the rest of it.

Which brings us to Senator Tillis, who has expressed interest in reforming the DMCA and already started to lay the groundwork. We dread where this reform effort might go, because we know (see the Copyright Office's 512 study) that many people are championing for the things already terrible about it to be made worse. But at the same time it would be great to fix the terrible things already there so that it could actually become an unequivocally good law that does what copyright law is supposed to do: stimulate expression and promote the spreading of knowledge.

Last month Senator Tillis put out a call for stakeholder input on the reforms he is thinking about, and earlier this week the Copia Institute submitted its response. Instead of answering his specific questions, which all seemed to presume way too much about what allegedly needs fixing in the DMCA, and not necessarily correctly, we made two larger points that need to apply to any reform measures: (1) There needs to be a clear, data-supported understanding of what needs to be fixed and why so that any implemented change actually helps, rather than hurts, creators, and (2) the statute must scrupulously comply with the First Amendment, which unfortunately it currently falls way too short of in way too many ways.

On the latter front we made several points. First, for the DMCA to be First Amendment-compliant, fair use cannot continue to be treated as an afterthought. It is not a minor technicality; it is a fundamental limit on the reach of a copyright and therefore needs to limit the power of what a copyright holder can do to advance that right. Thus, as we wrote in our submission, Section 1201 should no longer obstruct a fair use, and Section 512 should no longer enable the censoring of a fair use either. Protecting fair uses must be a central tenet of any DMCA revision in order to ensure that fair use can remain meaningful in the digital age.

There are also a number of problems that have emerged over the years in the way the Section 512 system operates that have turned it into an impermissible system of prior restraint. Platform protection is hugely critical for fostering online expression, but the irony is that this protection comes at the expense of the very expression it is supposed to foster. The basic problem is that, unlike Section 230, the platform protection the DMCA provides is conditional. But the even bigger problem is that the protection is conditioned on platforms acting against speakers and speech based only on allegations of infringement, even though those allegations may be unfounded. When a law causes speech to be sanctioned before a court has ever adjudicated it to be wrongful it is prior restraint and anathema to the First Amendment. But current judicial interpretations of the DMCA have made Section 512's critical platform protection on just this sort of thing, with dire consequences to speakers and their speech. Reform is therefore needed so that platform protection is no longer contingent on this sort of constitutional violation.

Similarly, we noted that Section 512 also undermines the First Amendment right to anonymous speech, given the operation of Section 512(g) (governing counter-notices) and Section 512(h) (establishing a special type of federal subpoena). But an even more significant constitutional defect with the DMCA overall is with Section 1201. As we've talked about before, Section 1201, and its prohibition against circumventing technical measures, chills security research and innovation and forecloses fair uses. None of these things are constitutionally permissible, and all undermine the overall goal of promoting progress.

Which brings us to our second main point. The whole point of copyright law is to promote progress. And that means encouraging expression so that the public can enjoy the fruits of it. But not every proposed change to the DMCA will lead to that result. In fact, many would do the exact opposite.

The problem is, many of the proposed changes presume that strengthening the power of a copyright holder automatically advances that greater interest. But in reality it doesn't. And we suggested that the reform effort was being sidetracked by a string of misguided assumptions that needed challenging.

First there is the idea that digital technologies are causing economic harm to copyright holders, but it is an idea that should be treated with skepticism. For one thing, it treats the consumption of every "pirated" digital copy as a lost sale. It also ignores that some works are only consumable at a price of $0 and overlooks that copyright holders have historically flourished even when works were available for free, such as in libraries or on over-the-air radio. In other words, the consumption of copyrighted works for free does not automatically equate to economic harm to copyright holders.

And then there is the presumption that copyright holders and creators are one and the same, and thus economic harm to the former means that there's economic harm to the latter. In fact, copyright holders and creators may frequently be entirely different entities – and even stuck being entirely different entities – with entirely different economic interests. Furthermore, advancing the interests of copyright holders may actually be adverse to the interests of creators, with the former potentially wanting to maximize profit from specific works, and the latter potentially more economically advantaged over all if they can develop robust market interest for their works over all.

Next we pointed out that hobbling digital technologies imposes its own economic harm, which should be the last thing for copyright law to encourage. We noted that it is not good that Veoh Networks got financially obliterated by the process of trying to assert its DMCA safe harbor defense (which was ultimately vindicated), because the Section 512 safe harbor provision is so needlessly cumbersome to deploy. It is not good that we now have one less competitor to YouTube and one less outlet available for creators. Nor is it ok that Seeqpod, a search engine dedicated to helping locate creative works, is now no longer available for people to use to find the works of artists they might then choose to support. The loss of these companies, their jobs, their innovation, and their economic energy is a loss that copyright law, including the DMCA, should lament, not exacerbate.

The loss of these platforms also directly harms the economic interests of creators. Here we challenged two assumptions, one, that the economic interests of platforms are somehow in conflict with creators', and two, that creators and platform users are somehow different. In reality creators are platform users. When the DMCA causes platforms facilitating user expression to disappear, or even the expression itself to disappear, those users themselves are creators who are being affected. And that affects their economic interests by depriving them of outlets to promote their works or even directly monetize them. None of these consequences are consistent with what copyright law is intended to accomplish, and any reform effort should make sure to avoid them too.

Filed Under: 1st amendment, copyright, dmca, dmca 1201, dmca 512, fair use, free speech, notice and takedown, prior restraint, thom tillis

Rather Than Attacking Section 230, Why Aren't Trump Supporters Angry About The DMCA That's Actually Causing Issues?

from the you-guys-got-it-all-wrong dept

A few weeks back, we wrote about how one of Donald Trump's tirades over Twitter "moderating" him, in which he blamed Section 230, was totally misplaced. The actual issue was about copyright and Section 512 of the DMCA. That was a case where a copyright claim took down a Trump campaign video after a copyright holder claimed it infringed.

Last week, we saw copyright again cause trouble in Trump world -- and again, Trump's fans blamed Twitter and Section 230 rather than the problems of the DMCA instead. This time, it involved a well-known Trump mememaker going by the name Carpe Donktum, who makes generally lame "MAGA memes." Early last week, Twitter permanently shut down his account, and all the Trumpalos went nuts. A writer for the Federalist, Mollie Hemingway, laughably called it "election interference" by Twitter:

Except, as you can even see in that very screenshot that Mollie (who apparently can't even read the screenshots she's posting), Twitter shut down his account for repeated infringement under the DMCA. Twitter later confirmed exactly that.

“per our copyright policy, we respond to valid copyright complaints sent to us by a copyright owner or their authorized representatives. The account was permanently suspended for repeated violations of this policy.”

Donnie Jr. got similarly angry, and had an odd interpretation of what "public domain" means:

Now, we can argue whether or not the copyright claim was valid. I think for most memes, even Donktum's incredibly stupid ones, he would have strong fair use claims. But as we've seen in cases like the BMG v. Cox case, courts are now saying that the repeat infringer policy is not for proven infringement, but merely alleged infringement.

Even worse? In the Copyright Office's recent report on Section 512 of the DMCA, it supported that viewpoint, that the DMCA not only requires a repeat infringer policy, but that it should be based on repeated accusations of infringement, even if those accusations are not accurate.

Given that, Twitter has little choice but to shut down Donktum's feed, and people blaming Twitter or Section 230 for this (or idiotically calling it "election interference") have misplaced their blame. They should, instead, be concerned about Section 512(i) of the DMCA and the series of recent cases that say it is based on accusation, and not on any adjudication of infringement. And, similarly, they should also be asking why the Copyright Office recently supported this censorial definition in the years-long study it did on Section 512 and just released a little over a month ago. From that report:

... any definition must be consistent with the statutory criteria that repeat infringer means repeat alleged infringer, not repeat adjudicated infringer.

And then this week, we had yet another example, in which Twitter removed an image from a Trump tweet after the NY Times filed a DMCA takedown notice:

The original tweet by Trump issued on June 30, showed a meme that read “In reality they’re not after me they’re after you I’m just in the way” with Trump’s picture in the background.

The background picture was taken by a New York Times photographer, to accompany a feature article on then presidential candidate Trump in September 2015.

Twitter now displays the message “This image has been removed in response to a report from the copyright holder,” in place of the tweet.

You can see what it looks like now:

As I write this, the usual crew hasn't freaked out yet, but I fully expect that when they do, they're likely to blame Twitter or Section 230, neither of which are even remotely responsible here.

But while Trump's fans in Congress are running around trying to change Section 230 with a new bill every other day, why aren't any of them looking at fixing this part of the DMCA that is actually leading to censorship (unlike what's happening with 230)?

Filed Under: carpe donktum, censorship, copyright, dmca, dmca 512, donald trump, notice and takedown, repeat infringer, section 230
Companies: twitter

Copyright Gets In The Way Of Chef Andres' 'Recipes For The People'; Because The DMCA Takedown System Is Still Broken

from the copyright-not-for-the-people dept

On Tuesday evening, famed chef (and all around wonderful human being) José Andrés tweeted about how Twitter had taken down his videos "without really a detailed explanation of why or whom."

As he notes, "I'm guilty before a judge will rule..." Of course, while his anger was pointed at Twitter, the real problem is not Twitter, but rather the DMCA's Section 512, whose entire design is that you are guilty before any judge will rule. This is why we've been pointing out that the notice-and-takedown process of the DMCA seems to raise serious 1st Amendment issues. It's very much guilty until proven innocent, by design, with censorship built in (and yes, I mean censorship because it's compelled by the state).

What's really stunning, of course, is that this is happening at the same time when the Copyright Office is claiming that we should make this problem much, much worse by giving people and companies more power to censor and force content down prior to any judicial review. And, of course, you have willing elected officials trying to make this happen.

The details of the Chef Andrés' story are instructive of just how problematic the notice-and-takedown system is, and has been. He's been creating a bunch of amazing videos under the #RecipesForThePeople hashtag, where he and his daughters cook up simple meals that anyone can prepare at home during lockdown. You should watch them. They're a joy to watch. In each one, beyond cooking a relatively simple meal, he does it to music (often dancing and/or singing along while cooking). As he explains, the music all comes from musicians he knows -- such as Lin Manuel Miranda -- who gave him permission to do so:

There are a bunch more, but they're really a joy to watch. And while Lin Manuel Miranda gave his permission, that doesn't much matter in reality, because the entire DMCA 512 notice-and-takedown system is based on the idea that you just keep on sending takedowns. And even if permission has been granted, why that's just too difficult to continue to track. So the takedowns still get sent, and Twitter is pressured into taking it down, or it could face massive liability for copyright infringement's statutory damages.

While this story might just seem like a "mistake" it's actually illustrative for a variety of important debates we're having -- both the debate about making the DMCA even worse and the Section 230 debates. We pointed out that the Copyright Office (and people in Congress talking about 512 reform) have so far mostly ignored false takedown notices. But they happen every damn day. We hear about ones like this one, because it happened to someone who is pretty famous and so it makes news. But if it happened to someone less well known -- they might just be out of luck.

And it also impacts the Section 230 debates, because so much of the reform ideas put forth would effectively turn other issues into a similar DMCA style "notice-and-takedown." Indeed, that's part of the DOJ's proposal to create a "knowledge" standard that would require sites to remove content. Under such a regime, again, you have a system like this one, in which once a platform is notified, assuming it cannot tell whether or not the content is legit or licensed or whatnot, it has every incentive to just pull it down -- "before a judge will rule..."

Filed Under: censorship, chef andres, dmca, dmca 512, hamilton, jose andres, lin manuel miranda, notice and takedown, section 230
Companies: twitter

Don Henley Tells Senators: We Must Change Copyright Law... Because The People Like TikTok?

from the what-are-you-saying-now-old-man? dept

As we noted, last Tuesday, in the midst of a pandemic and nationwide protests about police brutality, the Senate Judiciary Committee's IP Subcommittee (well, three members of it, at least, one of whom seemed to think that Section 512 of the DMCA was actually Section 230 of the CDA) decided it was a priority to host a hearing on copyright law. Specifically, the hearing was in response to the Copyright Office's bizarre, ahistorical take on Section 512 of the DMCA that ignores the public as a stakeholder. It seemed particularly bizarre to have as the first speaker on the panel, Don Henley, who is one of the most successful recording artists of all time -- his albums are literally the 1st and 3rd best selling albums of all time -- with a history of being wrong about the internet.

Henley seemed to recognize that it was a bad look for a super successful, aging rocker to be the voice of musicians on the panel (good for him) and insisted that he was really there to speak up for less well known musicians who didn't have his reach.

I am present, today, not to be contrary, not to advance a personal agenda (at age 73, and indefinitely homebound by the Covid‐19 pandemic, I am in the final chapter of my career), but I come here out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us. It is truly unfortunate – and patently unfair – that the music industry is perceived only in terms of its most successful and wealthy celebrities, when in fact there are millions of people working in the industry, struggling in relative obscurity; people whose voices would never be heard were it not for hearings such as this one being held, today. So, I am compelled to seize this rare opportunity to discuss aspects of the fundamental issues that are foremost in the national conversation, at this anxious moment – fairness, rights, mutual respect and … in this case, economic justice and equal opportunity.

Of course, in the paragraph immediately after calling for a "national conversation" and "mutual respect" he trashed the entire tech sector and anyone who criticized him as a shill:

But, the smear campaign has already begun. I have been targeted by the digital gatekeepers and their many shills and surrogates. It began last Friday in the newspaper that belongs to Mr. Bezos, and it continues, today. Big Tech was probably hoping that this hearing would be canceled, or that I would be intimidated to the extent that I would not testify. But, I will not be silent on this issue. I want to do everything in my power to strengthen the property rights of music creators of all ages, races and creeds; all styles, from hip‐hop to honky‐tonk, from rock, to rap, to rhythm & blues. From jazz to folk, to heavy metal. To change or improve outdated laws and regulations that have been abused for over 20 years by Big Tech … the enormous digital platforms that facilitate millions of copyright infringements, monthly.

From there he gave a bunch of strained and mostly debunked talking points about the notice-and-takedown provisions of the DMCA which he finds (of course) to be inadequate. Having discussed all of those in the past, I don't really want to revisit those silly talking points all over again. But I did want to point out, yet again, how Henley's "those darn kids these days" attitudes, undermines his claims of wishing to support up and coming artists. In particular, he attacks TikTok:

In a world where more than 500 hours of video are uploaded to YouTube every minute, more than 1 billion videos are viewed on TikTok per day, and there are over 500 million daily active users on Instagram, it is clear that the massive online services are flourishing while artists have no ability to combat the rampant infringement that occurs on these platforms

That's an odd choice to pick on. While the labels and publishers have been fighting over licensing on TikTok, this line of argument -- that TikTok is just some den of piracy -- seems completely at odds with its cultural impact.

Indeed, TikTok has become the new music discovery platform of the younger generation, and some argue it has taken over the music industry because of that. It's also created a bunch of new music superstars, most notably in the persona of Lil Nas X, the hugely successful young, black, LGBTQ role model.

So, it becomes difficult to square the idea -- put forth by an aging white rocker claiming to represent those "struggling in relative obscurity" -- that TikTok is some damaging tool to up-and-coming musicians, when we see how it has enabled a young, black, LGBTQ star to rise from that obscurity.

And, yes, of course there are some legitimate points buried within Henley's talking points. It's difficult to make a living as a musician. But that's not piracy's fault. It's always been difficult to make a living as an artist. But the internet and the freedom that it's created has enabled many, many, many more artists to have a chance -- including some who would never have had a chance under the old system. As we've discussed for many years, under the old label system, through which Henley grew up, you had record labels acting as gatekeepers. They, and they alone, chose who would be successful and who would not. The internet has obliterated that system. There's still a place for labels, but they don't control the gates anymore. There are now new avenues for artists to go direct to their fans -- to build followings and fans and supporters, with TikTok just being the latest in a long line of platforms that have brought us new artists, doing an endrun around the old system.

Of course, whenever that happens, the old guard complains. Not because it's actually harming music. But because it's a lessening of their exclusive power. This is the same thing we've always seen from the antiquated wing of the legacy copyright industries. Every "new" thing is painted as a den of piracy. Back in the early 20th century, songwriters flipped out at player pianos and the "piracy" they created. The 1909 Copyright Act was literally a response to player pianos. Indeed, in the hearings over that Act, composer John Philip Sousa -- the Don Henley of his time -- testified before Congress whining that:

“When I was a boy—I was born in this town—in front of every house in the summer evenings you would find young people together singing the songs of the day or the old songs. To-day you hear these infernal machines going night and day. ... Last summer and the summer before I was in one of the biggest yacht harbors in the world, and I did not hear a voice the whole summer. Every yacht had a gramophone, a phonograph, an aeolian, or something of the kind."

The horrors of hearing a gramophone from your giant yacht. I'm sure Don Henley can sympathize. Of course, in retrospect this all looks silly. Here was Sousa complaining about the record player -- the very thing that eventually built the entire recording industry. But, really, what he's hooked into is the nostalgia of how things "used to be." The nostalgia of "young people together singing the songs of the day or the old songs."

And of course that trend continued. When radio came on the scene, the makers of records screamed about how it was "piracy." And when recordable cassettes came on the market, we were told that "home taping is killing music." Napster was supposed to be the death of industry, as was any number of other services.

Meanwhile, if one spends any time with TikTok, I'd argue that unlike Henley's view of it, it seems like the perfect example of technology and innovation -- including the innovation-promoting setup of the DMCA's provisions -- and brings us right back around to a situation in which "young people today" are "singing the songs of the day or the old songs." Indeed, some of the most popular parts of TikTok, and those that have helped people like Lil Nas X become superstars, is the fact that TikTok encourages people to copy and sing and dance along with the "songs of the day or the old songs." And it, and other similar platforms, are helping new artists break through every day -- without those artists needing to get the approval of an old has been exec at a record label.

History tells us which path makes sense. Henley is choosing the Sousa path -- the successful old musician, complaining about what he's hearing from the biggest yacht not being to his liking.

Filed Under: copyright, culture, dmca, dmca 512, don henley, lil nas x, notice and takedown, piracy
Companies: tiktok

Twitter Taking Down Trump Campaign Video Over Questionable Copyright Claim Demonstrates Why Trump Should Support Section 230

from the better-for-free-speech dept

Here's an interesting tidbit: the latest move by Twitter to deal with a tweet related to President Trump is that it pulled down a Trump campaign video that was presented as a "tribute" to George Floyd, the Minneapolis man murdered by police last week, and whose senseless death has brought so many thousands to the streets across the US. The video remains on YouTube for the moment. It includes a lot of still photos and a few short video clips. It appears that the copyright holder on one (or perhaps more) of those images and clips likely didn't like it to be included for use by a President for a propaganda video they disagreed with, and filed the DMCA claim.

I think there's a very strong fair use argument here for a whole variety of reasons (and, yes, I fully understand the moral claims that whoever took this photo may feel about it being used in this way, but copyright is not supposed to be used in that way).

But seeing as this comes so soon after Trump's complete and total meltdown over Twitter and Section 230 after it added some additional context to one of his tweets -- leading him to state publicly that Section 230 should be revoked -- I do wonder if this move, in which a video was actually taken down (unlike with his tweets), will have him similarly rage against copyright law? Will we see an executive order demanding an impossible reinterpretation of Section 512's notice-and-takedown provisions? Or does it not work like that?

Of course, what this really demonstrates is why Trump and his fans should absolutely support Section 230, rather than pan it. Section 230, among other things, gives Twitter the freedom to decide how best to run its site, and to date, that's meant bending over backwards to keep the President's tweets online and available for people to view. However, Section 230 explicitly exempts intellectual property. For copyright, there's Section 512 of the DMCA, which is much, much weaker than CDA 230. With CDA 230, there's an immunity -- if there's 3rd party content, a site is not liable and also a site cannot be liable for its moderation choices. With DMCA 512, it's a "safe harbor." Where if you meet certain conditions, you can then be protected. But one element of that safe harbor, is that to retain it you have to take down the content upon receipt of a valid DMCA takedown notice.

I've long argued that this aspect of the DMCA 512, in which the threat of significant liability from the state (i.e., the court system) raises serious 1st Amendment issues. That's because the law heavily favors silencing content with the threat of massive liability if you don't. And the system is heavily imbalanced as there's no effective punishment for false notices, meaning the system is weighted very, very heavily in favor of censorship.

So here's a good point to compare how the two different "intermediary liability" regimes actually work. Under CDA 230, free speech is much more protected. Indeed, the very nature of it is that the courts under 230 cannot force sites to take down speech (they leave that choice up to the sites themselves). Under DMCA 512, however, the liability issue makes it very, very easy to issue bogus takedowns that lead to content being removed.

It's interesting that this is all coming a week after Trump's bizarre tirade against 230, and the same week that the Senate argued that we should make the censoring power of the DMCA even more censorial.

It seems a much better approach would be to leave 230 alone, but fix DMCA 512 by getting rid of the imbalanced nature in putting tremendous state pressure on websites to remove content based solely on an accusation of infringement.

Filed Under: campaign video, copyright, dmca, dmca 512, donald trump, free speech, george floyd, notice and takedown, section 230, takedowns
Companies: twitter

In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It's Time To Use Copyright To Make The Richest Musicians Richer

from the read-the-fucking-room-guys dept

There's kind of a lot going on in America right now -- what with widespread protests about police violence (leading to more police violence), and we're still in the middle of the largest pandemic in a century. You'd think some of those things would be priorities for Congress, but instead, Senate Republicans have decided that now is the time to pushing ahead with helping Hollywood by examining how to make copyright worse. Even the Washington Post is completely perplexed as to how this could possibly be a priority right now.

“I don’t think we have yet felt the urgency of acting immediately” on further help for those devastated by the pandemic, McConnell said two weeks ago. Now, with 100,000 dead and 40 million out of work, he still talks of waiting a month.

So what makes Senate Republicans feel the urgency of acting immediately? What would make them Take It to the Limit?

Don Henley would.

I Can’t Tell You Why.

Actually, I can. The Eagles singer and drummer has been summoned by the Senate Judiciary subcommittee to testify Tuesday about the functioning of the Digital Millennium Copyright Act’s “Notice-And-Takedown System.”

Henley, of course, is one of the wealthiest musicians in history, considering that he was a founding member of the Eagles, a band that literally has both the best selling album of all time AND the third best selling album of all time. Yes, in the top 3 best selling albums of all time, Don Henley's on two of 'em.

If Don Henley is hurting for money, I'm going to suggest that it ain't copyright that's the problem. But this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.

Henley blasted all unauthorized uses of his music, whether by politicians or just amateurs making remixes, mash-ups, and similar unlicensed uses on sites like YouTube. "I don't condone it," he said of such practices. "I'm vehemently opposed to it. Not because I don't like parodies or satires of my work. But it's simply a violation of U.S. copyright law."

[....]

"People in my age group generally don't like it. Songs are difficult to write; some of them take years to write. To have them used as toys or playthings is frustrating."

Really, none of this makes any sense. You'd think (1) that right now wouldn't be the time to focus on copyright, (2) that Republican Senators wouldn't be in such a rush to aid Hollywood (which is generally not known for its support of the GOP), and (3) that of all the possible people to testify, they'd pick a rich rocker who's big complaint about the internet is that it allows the kids these days to be creative. But for whatever reason, this is what the Republican leadership in the Senate feels is most important right now. Helping super rich rockers who dislike the kids get even richer at the expense of the public.

Filed Under: copyright, dmca, dmca 512, don henley, internet, mitch mcconnell, notice and takedown, pandemic, protests, senate

Senator Thom Tillis Pushed Awful Patent Reform Idea Last Year; Now Looks To Top It With Awful Copyright Reform This Year

from the dude,-seriously? dept

Last year, Senator Thom Tillis was pushing a completely ridiculous patent reform bill that would have enabled massive patent trolling, by expanding what would count as patent-eligible subject matter. After his bill was released -- and basically everyone who wasn't a patent troll explained what a disaster it would be for American innovation, Tillis quietly let the matter drop.

Given that experience, you might think that Tillis would think twice before stepping into the even more fraught arena of copyright reform. And yet, Tillis has been champing at the bit to change the DMCA to make Hollywood happier with it. Now, there are lots of complaints to be made about the DMCA. Section 512 enables blatant censorship and puts tremendous pressure on platforms to take down non-infringing content. It also favors larger platforms which can deal with a barrage of takedowns over smaller upstarts. Section 1201 of the DMCA is utter garbage and makes it "infringing" to merely talk about ways to remove DRM -- even if the underlying reason for doing so is non-infringing. There are obvious ways to fix both of those.

But, instead, Tillis and his staff seem ultra focused on making Section 512 worse and importing awful ideas like the EU Copyright Directive, which forces platforms into being Hollywood's personal police, and bringing in dangerous, censorial ideas like "notice and staydown," which would require expensive and unreliable internet filters. While he's made some nod towards perhaps making a few cosmetic changes to 1201 as a "trade" for making 512 that much worse, the overall impact of what's being discussed would be terrible. 1201 would remain in some form, and what few exceptions would be made would be minimal in impact. But bringing in things like "notice and staydown" for 512 would inevitably lead to much more censorship.

It's unclear why Tillis is rushing headlong into this debate, when it seems that neither he nor his staffers grasp the details of how copyright works. Given how silly and uninformed Tillis came out of last year's attempt to pass a patent bill, it's bizarre that his office hasn't bothered to be more careful on the copyright front before leaping into that arena.

Filed Under: copyright, copyright reform, dmca, dmca 1201, dmca 512, eu copyright directive, notice and staydown, notice and takedown, patent reform, patents, thom tillis