It Doesn't Matter How Much Of An Asshole You Think Someone Is, That's No Excuse To DMCA

from the that's-not-how-copyright-law-works dept

We've pointed out time and time again that one of the problems with setting up any rules that allow for content to be taken down online is just how widely they will be abused. This is one of the reasons why we think that CDA 230's immunity is much better than the DMCA 512 safe harbors. Under CDA 230, if a platform receives a takedown over content that is, say, defamatory, they get to decide how best to act, without a change in their own legal liability. They can take it down, or they can leave it up, but there's no greater legal risk in either decision. With the DMCA, it's different. If you, as a platform, refuse to take down the content, you then risk much greater legal liability. And, because of this, we regularly see the DMCA abused by anyone who wants to make certain content disappear -- even if it has nothing to do with copyright.

Take this latest example of game developer Sean Vanaman, who has promised to issue DMCA takedown notices for YouTube star PewDiePie's (Felix Kjellberg) videos featuring Vanaman's video game, Firewatch:

The issue is, more or less, that PewDiePie is, well, kind of a jackass and possibly a bigot (there's some dispute over whether he's really a bigot or just "proving a point," but I'm going with Popehat's famous Goatfucker Rule on this one). And PewDiePie did one of his awful, insensitive PewDiePie things, which has reasonably pissed off some people.

One of those people is Vanaman, who is pointing directly to this episode as the reason why he's going to issue DMCA takedowns and is urging other game developers to do the same:

And, look, it's completely reasonable to dislike PewDiePie. And it's completely reasonable to be upset that someone you dislike and believe is toxic has done videos showing your games. But what's not reasonable and also not allowed under the law is to abuse the DMCA to take down content, just because you don't like how someone's using it. PewDiePie's videos are almost certainly fair use. While we've seen some debate over "Let's Play" videos like PewDiePie's over the years, in general most copyright experts who've discussed the matter seem to feel that the standard Let's Play video is very likely to be protected by fair use.

Having seen some of PewDiePie's Firewatch let's play video, it definitely would appear to be protected by fair use. The fact that Vanaman directly and publicly admits that he's not taking the video down for any valid copyright reason, but rather because he thinks PewDiePie is "a propagator of despicable garbage" doesn't help Vanaman's case at all. Rather, it gives PewDiePie a lot more leverage to claim that any such takedown would be abusive, and possibly even a violation of the DMCA's 512(f) against misrepresentations.

But the larger point remains: no matter what you think of PewDiePie or Vanaman, the issue here is that when we create laws that give people the power to take down content, it will be abused for a variety of reasons. Often -- as is the case here -- those reasons will have absolutely nothing to do with copyright. Vanaman spouting off about his non-copyright reasons for wanting to issue a takedown only makes that so much clearer in this case.

Filed Under: 512(f), censorship, copyright, dmca, dmca 512, felix kjellberg, firewatch, pewdiepie, sean vanaman
Companies: campo santo