Fordham: Spurious Take Down Notices Under the Digital Millennium Copyright Act

The Fordham Intellectual Property, Media & Entertainment Law Journal's 2010 Symposium: Is Silence Golden? Ethics and Intellectual Property Law

Spurious Take Down Notices Under the Digital Millennium Copyright Act
Moderator: Joel Reidenberg, Fordham Law

Ann Bartow, University of South Carolina School of Law

Began with the “Bed Intruder” meme (Antoine Dodson). The original clip was posted and subsequently subject to a takedown notice, but the takedown didn’t work when it went viral. The initial interview was somewhat problematic in the way it treated him, but she’s somewhat sympathetic to the TV station—failing to cover the story would have been wrong too. People see issues of race, class, and sexuality in the interview and to the response to it: are people laughing with him or at him? She found him sympathetic: This is an angry man who’d just fought off an attack on his sister, but he seems to have a sense of humor too. Feminist reaction: the story became all about Antoine, even though his sister was the one who was attacked. She has a tiny role in the interview and an even smaller role in the Bed Intruder song.

Copyright is not a content neutral restriction on speech. Cyberlawyers were too quick to identify copyright law as content neutral. When the government acts or when there’s a takedown, it’s based on the content of the speech.

Is it possible for calculated takedowns to have a real impact on the conversations about race, gender, and sexuality? She believes that it would be. You could deploy notice and takedown to effectively address issues of hate speech—but everybody would call it censorship if it were formally based on hate speech. Deploying copyright can have the same effect, though. If people are engaging in notice and takedown in a way fixated on race, gender, or sexual orientation, copyright doesn’t grapple with that. Maybe notice & takedown should be more visible: a registry that is publicly available and transparent so that people could quantify what’s going on.

One guy in San Francisco loves pornography. [Edit: name removed by request; he disputes this characterization.] He works 12-16 hours/day as a Wikipedia editor to make sure nothing good is ever said on Wikipedia about feminism, editing everything positive or even neutral. One person has a big effect. (I’m not sure I understand why this is about copyright; I take it the point is that the ability to edit Wikipedia entries allows a lot of vandalism/mutilation of what would otherwise be copyright-controlled content?)

Another example: Lara Jade Coton posted a picture of herself on DeviantArt and someone put it on a porn DVD. She can’t use notice and takedown in the offline world; she hadn’t registered her copyright, so her best remedy was defamation/invasion of privacy—harder to address without the copyright hook.

Reidenberg: copyright seems like it was pretty ineffective in the main story here. Raises the question: are you advocating more systematic use of copyright?

Dotan Oliar, Virginia Law

Notice and takedown is generally sensible. But there is a structural imbalance between copyright owners and users, who generally lack legal departments or the money/information necessary to employ a lawyer. All the copyright owner needs is a good-faith belief that the content is infringing: what does that mean? Lenz: duty to consider defenses that the user might have. Copyright owners don’t have to state a good-faith belief in infringement under penalty of perjury; the only thing required to be stated under penalty of perjury is that the sender is an agent of the copyright owner. But the user is subject to this requirement with respect to her claim that she thinks this is not infringement. Since this is someone who is unlikely to know the law, this is problematic.

Disputes over what information the copyright owner has to provide: how much information does it have to give the ISP? Perfect 10 provides some guidance.

Diebold also raises an ethical issue: should they have issued takedowns in the first place? An abuse of the process. Yahoo! served a DMCA notice on a site about whistleblowing for posting the schedule of fees it charged the government to disclose certain information; this was embarrassing, not infringing, and yet Yahoo! used the DMCA. (Seems like Bartow was advocating precisely this strategic use of copyright to achieve other objectives.)

Stanley Pierre-Louis, VP and Associate General Counsel for IP and Content Protection, Viacom

Media companies care about markets as well as First Amendment rights. There is internal debate over sending takedowns, whether there’s prior restraint, and so on. Wants to distinguish between legal ethics and moral ethics—your role as advocate defending your client’s interest is different than your role in society. Part of what you’re defending is the right of your company to make its claim. Needs to preserve ability to profit from investment.

DMCA: Congress saw a need to expand the internet by getting people to put things on there. (Oh look, the need to get “cars” on the “information superhighway.”) Compromise: encourage content owners to put work online but preserve their rights. Takedowns aren’t the only way to get things off the internet—DMCA was a compromise. His experience with content owners is that they are careful about sending notices—teams review the material and make calls about infringement. He doesn’t agree that assessing fair use is a requirement; Lenz doesn’t follow 9th Circuit precedent. However, most media companies will take a look, because they rely on fair use too. We don’t care about people putting a mustache on Jon Stewart; we care about copying the clip and taking the market we’re trying to create.

Counternotices: our experience is that most of them our bogus, but we take them all seriously. Users have different views of fair use. In most cases people have just taken clips they thought were funny; they don’t want strikes on their YouTube accounts. Most content owners try to address that more privately instead of by a lawsuit. View conversation as an opportunity to engage in education and explanation of where the legitimate sources are.

Reidenberg: two kinds of situations: (1) political cases—campaign ads, Diebold, etc. (2) commercial—maximizing market share, protecting Snooki. Different considerations apply. (2) often involves a consumer who’s not represented by counsel; they won’t really know whether they have a valid fair use claim.

Pierre-Louis: our intent is to be internally consistent, since we rely on fair use—we were sued in the Naked Gun 33 1/3 case. Still, the situations we see are generally large segments of episodes with nothing else near it. When it’s a clip with commentary surrounding it on the poster’s page, we try to figure out what’s going on—what creativity is being added? Want them to embed the official clip from the official page instead.

Bartow: this is an example of copyright pushing the First Amendment to the side. The focus is entirely on a copyright claim—the First Amendment doesn’t require creativity. One of the most effective things you can do as a critic of porn is to show clips of porn: performers in pain. She doesn’t think she needs creativity to alter the clips; she needs to show the clips themselves.

Pierre-Louis: but is that infringing? There’s an interplay between the First Amendment and copyright—both are constitutional (well, not exactly—the government is not required to act any copyright law, much less the copyright law we have). But the porn example is “this is awful” not “this is cool,” which is our usual scenario.

Reidenberg: won’t the porn clips be automatically caught by copyright filters?

Pierre-Louis: not if she’s interspersed with the clips speaking, or if she’s showing it in class, but if she just puts the clips up she’s competing with the market for that work in the world at large.

Reidenberg: Wendy Seltzer’s clip of the start of a football broadcast with the NFL statement that using anything/commenting about the broadcast is a violation of their copyright. That was almost certainly not seen by anyone except for students until the controversy broke.

Pierre-Louis: You’re essentially offering it to the world (though he disclaims any decision on whether that was a good takedown notice). (He seems to be advocating for password protection, at which point the content owner will never know, which is exactly what publishers suing Georgia State are complaining about—in fact Viacom wants to be able to scrutinize password-protected YouTube uploads too.) Distribution tech is wonderful, but users have to be careful.

Reidenberg: Suppose there’s commentary along with the clip: this is really stupid. What about Oliar’s perjury point?

Oliar: he agrees this disparity is strange. The law is constructed to create a takedown incentive for the OSP. Did Viacom really commit an hour to each of the 100,000 takedown notices it sent to YouTube?

Pierre-Louis: yes, these were each subject to human review. (Um, didn’t some of them turn out to have been uploaded by Viacom itself?  Look, even Homer nods.  But we're in Simpsons territory now.)

Oliar: still, you get what happened in Lenz. Are we raising a generation of consumers who are passive and who are afraid to do anything that might be against the rules?

Reidenberg: yet we see takedowns in cases where news broadcasts are clipped in an ad and the statement made in the clip is the subject of the critique. One has to wonder about the attorneys’ evaluation in that case.

Pierre-Louis: if you did a pure fair use analysis, most people would come out on the side that these are likely infringing. A lot of times the commentary in the ad has nothing to do with the copyrighted work. Usually it’s “look what they said about my opponent.” (That’s “nothing to do with the copyrighted work”? I guess he means there’s no commentary on the angle of the camera, but that’s really not the standard, as even the early Zapruder case shows. The content of the work is the subject of our example ad—and seeing it is more persuasive than reading a report that it happened.)

Bartow: can you blame people for filing takedowns in order to shut that ad up? Maybe they feel they’re unfairly characterized. (Yes, I can blame them!)

Q: how would you prevent use of a single sentence from a TV interview?

Bartow: well, you could use more speech, but copyright is a bigger weapon.

Pierre-Louis: A lawsuit, if it’s defamatory. But that’s different from copyright.

Reidenberg: where’s the good faith belief that there’s a copyright violation? If we disagree about the fair use analysis, does the lawyer have a good faith belief in going forward?

Pierre-Louis: is it right for people just to take the clip? It’s not about close calls, which we try to avoid. How to get the message out is up for debate—lawsuits, ad campaigns—the morality is not just what’s good for society but what’s good for the client.

Q: are we stretching copyright too far to say it protects one sentence? If you’re using copyright to protect reputation, is that wrong?

Oliar: Change in means by which we communicate—ten years ago you shared something over the water cooler, but now you send a link or post a clip, not expecting to share it beyond that water cooler constituency. Fair use should react to the new communicative conditions.

Q: The examples (from a media company) are not 3 seconds; they’re entire segments of a show—valuable video that the company itself posts and runs ads against. If a user posts the segment and says “60 Minutes got it wrong again” is that enough to make a fair use? Viewers, not just their personal friends, flock to that because it doesn’t have the ads.

Bartow: if you could keep the ads in, would you be satisfied?

Q: maybe—we do have an embeddable player.

Pierre-Louis: the watercooler doesn’t allow infinite copies, as online.

Oliar: He thinks link of the clip matters. Consider Sony v. Universal—VCR was supposed to destroy ad-supported TV through fast forwarding. The SCt found fair use and the market survived, thrived, and adjusted.

Q: what is the proposed solution? Amend the DMCA?

Bartow: we need more of a registry/transparency to figure out what is actually happening.

Pierre-Louis: unlikely that Congress will do much to intervene. When applied correctly, the DMCA works fine—the jury is still out on that. Google: judge ruled that all you need is a takedown program; if so, that’s a dangerous precedent because there are (should be) other obligations.

Oliar: people want clear rules that help them. Clear rules, but which ones?