Tag Archives: takedown

Mr. Google, take down this content

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Google’s default response to possible copyright infringement on YouTube is surprisingly mechanical and far from perfect.  Consider TMZ’s recent report on the hapless Justin Bieber and his ubiquitous YouTube music videos:

Justin Bieber has been victimized by a brand new cyber-enemy … an enemy who found a way to get every single one of JB’s official music videos REMOVED from YouTube….YouTube has a yank first, ask questions later policy when a copyright claim is made — so they simply pulled the videos off the site … until the dispute is resolved.

Of course, there are myriad problems with such a system, as Ernesto over TorrentFreak elaborates:

YouTube describes its Content-ID anti-piracy filter as a state-of-the-art technology, but those who look closely can see that in some cases it creates a huge mess. The system invites swindlers to claim copyright on other people’s videos and make money off them through ads. It automatically assigns thousands of videos to people who don’t hold the copyrights, and its take-down process appears to be hugely biased towards copyright holders.…

Content-ID allows rightsholders to upload the videos and music they own to a central ‘fingerprint’ database. YouTube will then scan their site for full or partial matches, and if there is a hit the copyright holder can automatically take it down, or decide to put their ads on it.

Although the above sounds like a fair and honest solution, not everything Content-ID does goes to plan.…One of the problems appears to be that people with bad intentions can claim copyright on videos they have nothing to do with, and even run ads on them. In the YouTube support forums there are hundreds of posts about this phenomenon…[although] most of the “misattribution” problems seem to be the result of screwups and technical limitations.

As Ernesto notes in passing, there is supposed to be an opportunity to counter a takedown request under the Digital Millennium Copyright Act (DMCA).  Unfortunately, Google’s Content-ID system doesn’t work this way, as Patrick McKay of FairUseYouTube.org elaborates:

Instead of requiring copyright owners to file a formal DMCA notice in response to a Content ID dispute, thus allowing users to invoke the DMCA counter-notice process, YouTube allows copyright owners to somehow “confirm” their copyright claim through the Convent ID system and re-impose whatever blocks were originally in place through Content ID. In this case, a message will appear on the user’s “View Copyright Info” page for that video saying, “All content owners have reviewed your video and confirmed their claims to some or all of its content.” After this, as far as I can tell, there is absolutely no way for the user to file a dispute and get their video restored.

Certainly, Google is under no legal obligation to provide video distribution services to anyone who asks for them no matter how contentious the content’s ownership.  At the end of the day, Google is a business, and dealing with the minutia of these copyright ownership disputes is expensive.  It’s obvious why Google wants to bow out of the fight as early (and cheaply) as possible.

Nonetheless, it is extremely troubling that Google is silencing some users’ speech without allowing them to defend (at their own risk and expense) legal rights provided under the DMCA.

Copyright squared

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There’s a new trend afoot to take the “notice” out of the Digital Millennium Copyright Act’s (DMCA’s) “notice and takedown” procedures:

The company is claiming that the DMCA takedown notice itself is copyrighted and that passing it along will constitute infringement. Of course, this raises some questions.

It does indeed.  For those of you unfamiliar with the DMCA’s notice and takedown procedures, they are a safe harbor that Congress wrote into the DMCA to shield service providers from certain types of copyright infringement suits.  ChillingEffects has this helpful explanation in their FAQ’s:

In order to have an allegedly infringing web site removed from a service provider’s network, or to have access to an allegedly infringing website disabled, the copyright owner must provide notice to the service provider with the following information:

  • The name, address, and electronic signature of the complaining party [512(c)(3)(A)(i)]
  • The infringing materials and their Internet location [512(c)(3)(A)(ii-iii)], or if the service provider is an “information location tool” such as a search engine, the reference or link to the infringing materials [512(d)(3)].
  • Sufficient information to identify the copyrighted works [512(c)(3)(A)(iv)].
  • A statement by the owner that it has a good faith belief that there is no legal basis for the use of the materials complained of [512(c)(3)(A)(v)].
  • A statement of the accuracy of the notice and, under penalty of perjury, that the complaining party is authorized to act on the behalf of the owner [512(c)(3)(A)(vi)].

Once notice is given to the service provider, or in circumstances where the service provider discovers the infringing material itself, it is required to expeditiously remove, or disable access to, the material. The safe harbor provisions do not require the service provider to notify the individual responsible for the allegedly infringing material before it has been removed, but they do require notification after the material is removed.

In his analysis, Mike Masnick notes a few of the problems with claiming copyright protection in DMCA takedown notices, particularly issues of authorship (“who owns the copyright”) and registration (“did whoever write this letter actually register it with the Copyright Office?”).  Of course, there are other problems to consider:

  1. First Amendment.  Do we really live in a world in which individuals can be subjected to legal process but cannot talk about what is happening to them?
  2. Fair use.  Among other things, isn’t the posting of DMCA notices transformative?  Is there any market effect that the law cares about?  Or is this like the proverbial “scathing theater review” that Justice Souter said “kills demand for the original” but “does not produce a harm cognizable under the Copyright Act”?  Campbell v. Acuff-Rose Music, Inc., 510 US 569, 591-92 (1994).

It seems to me that if (1) you’re a copyright owner and (2) you think someone is infringing your rights and (3) you want it to stop but (4) you also want to keep it your little secret and not let anyone else in the world know other than the alleged infringer, then you should maybe reconsider (2), because the fact that you are insisting on (4) may indicate that (2) isn’t actually true.

Just a thought.