Fox News Uses DMCA To Take Down Videos Used In Commentary

from the notice-and-takedown-is-broken dept

The DMCA has plenty of problems, but one of the more ridiculous is the whole concept of the "notice and takedown" procedure that service providers need to follow. Basically, if a copyright holder feels that its copyright is being infringed, it sends a DMCA notice to the service provider. In order for that service provider to keep its safe harbors that protect it from being liable for the content, the content has to be quickly taken down. At that point, the user can file a counternotice, but there's an extended period of time during which the service provider can consider the counternotice and decide whether or not to put the content back up. The reason it's set up this way is because the content companies who were pushing for the law convinced Congress that copyright violations online could be so damaging that content needed to be taken down immediately to prevent any "harm." The only "concession" to the fact that this process was likely to be abused was that filing a false takedown notice can get you in trouble as well. However, the process is still regularly abused to stifle speech.

Take for example, the latest example, presented by the EFF, who notes that Fox News has used the DMCA takedown process to pull down three clips from Fox News that were being used by a group called Progress Illinois who was using the videos as part of commentary on current events -- a common and valid fair use of content. However, since YouTube had to quickly pull down the videos and is now taking time to review the counternotification, it makes it nearly impossible for Progress Illinois to use the videos in a timely manner.

This is yet another example of how copyright is used to stifle free speech. This isn't just about "protecting" content or creating incentive to create more content. There's no commercial loss to Fox News to allow these videos to be used in this way. Forcing the immediate takedown serves only one purpose: to stifle free speech. In fact, you could make a decent argument that the DMCA violates the First Amendment with this policy (you know, "Congress shall make no law... abridging the freedom of speech...."). Given the seriousness of how such a process can stifle free speech, it's difficult to come up with a compelling reason why the DMCA shouldn't at least allow a "notice and notice" procedure, whereby the user accused of infringement is at least given a chance to respond before the content is taken down.


Reader Comments (rss)

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  •  
    identicon
    Anonymous Coward, Jan 8th, 2009 @ 6:33pm

    "Fox News Uses DMCA To Take Down Videos Used In Commentary"

    Without taking any position on the DMCA's "notice-takedown" procedure versus alternate procedures, it seems to me this article is premature in that both the EFF site and the site cited by the EFF each state that they have not even seen the purportedly problematic videos. The sites are merely parroting each other that it sounds to them like there "might" be a fair use issue. Sure, but then again there "might not" be a fair use issue.

    It's kinda hard to tell if there is really an issue when the two sites are each missing some pretty important information.

     

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      nasch, Jan 8th, 2009 @ 8:02pm

      Re:

      It's kinda hard to tell if there is really an issue when the two sites are each missing some pretty important information.

      That's exactly the point, isn't it? Nobody can see the videos anymore!

       

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    LJSeinfeld, Jan 8th, 2009 @ 7:25pm

    I call BS.

    Hey AC -- The clips were broadcast on TELEVISION. Another group used them, apparently within the guidelines of fair-use.

    Fox apparently didn't like that and is abusing the legal system to make the videos disappear -at least for awhile.

    I'm thinking that a news broadcast is definitely something that should be exempt from copyright. Either that, or you don't get to call it a news broadcast.

    Not very fair or balanced.

     

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    identicon
    Anonymous Coward, Jan 8th, 2009 @ 7:46pm

    Make the fine simple

    If you file a false DMCA take down notice, the fine is 1% of your yearly income for a corporation or individual.

     

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    Matt Bennett (profile), Jan 8th, 2009 @ 11:47pm

    Um, from whence comes the assumption that Fox News is trying to "censor" free speech? Fox has no particularly standing or interest in the issue in question, other than, it is in fact news, and they are in the business of covering news.

    It sounds like Fox news is merely acting like any other content company-- and jealously guarding it's content. That may be counter-productive (or not) and the clips may have been fair use (or not), but both EFF and you, Mike, are ascribing nefarious motives here that I don't see any evidence of.

     

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      PaulT (profile), Jan 9th, 2009 @ 1:32am

      Re:

      It doesn't matter whether their intentions are to stifle free speech or not. What matter is that the effect they're having is exactly that - to stifle free speech.

      Are you saying that we should blindly allow this kind of activity to continue as long as it's not their original motive?

       

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    Mojo Bone, Jan 9th, 2009 @ 12:40am

    For once, I wholeheartedly agree with Mike. Commentary, particularly the political variety, is fair use and Fox News Corp. knows this perfectly well. (commentary is part of what they do, and they seem to have an ample supply of lawyers) If their motives in this matter were pure, which is to say merely profit-driven rather than political, then surely they would welcome the controversy, which has been known to sell newspapers. Besides, I personally need no further proof of nefarious motives, once I parse the words, "Fox News".

     

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    TDR, Jan 9th, 2009 @ 6:17am

    Re: #3

    Only 1%? Should be no less than 10% - that would give them pause. And another 10% for each additional infraction.

     

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    Anonymous Coward, Jan 9th, 2009 @ 6:18am

    Citizen Media Law Project and EFF should know better...each holding themselves out as reliable sources of case and law analysis...than to start spouting hearsay to "stir the pot". It weakens their credibility in this instance.

    These two sites know only too well that a "fair use" claim is determined by a factual inquiry in four specific areas, and yet here they are saying "sounds like fair use to us" without have a single relevant fact in their possession.

    An intellectually honest position would have been "we are going to look into this because things do sound a bit disconcerting, and then get back to our readers with what we find out." Their actions here give the appearance that a provocative blog headline took priority over informed reporting.

     

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      Mike (profile), Jan 9th, 2009 @ 11:57am

      Re:

      These two sites know only too well that a "fair use" claim is determined by a factual inquiry in four specific areas, and yet here they are saying "sounds like fair use to us" without have a single relevant fact in their possession.

      Ah, the old copyright defenders claim: fair use is "a factual inquiry in four specific areas."

      Read James Boyle to find out why you're wrong, as per usual.

       

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        Anonymous Coward, Jan 9th, 2009 @ 12:23pm

        Re: Re:

        May I direct your attention to pages 66 and 67 of Mr. Boyle's book in which he reproduces 17 USC 107 and discusses the four factors pertinent to a fair use inquiry?

        To say "you're wrong, per usual" makes me wonder just how well you really do understand copyrights. You like to suggest you are one of its students, but comments like this suggest precisely the opposite.

         

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          Mike (profile), Jan 10th, 2009 @ 11:35am

          Re: Re: Re:

          May I direct your attention to pages 66 and 67 of Mr. Boyle's book in which he reproduces 17 USC 107 and discusses the four factors pertinent to a fair use inquiry?

          I didn't say that he said the four factors don't matter. But he goes through a rather comprehensive explanation of why fair use is a major part of copyright, not, as you suggest, a narrowly defined area that is only discussable after going through a four factors test.

          To say "you're wrong, per usual" makes me wonder just how well you really do understand copyrights. You like to suggest you are one of its students, but comments like this suggest precisely the opposite.

          Ah, MLS, what good are you without a backhanded insult?

          And, once again, I have to ask, why do you insist on hiding your identity? You used to at least be willing to stand up and be a man about it.

          I am most certainly a student of copyright, but unlike you, I'm more a student of common sense, and recognizing the purpose of the law. That, of course, is the main point of Boyle's book. You might want to try reading it again.

           

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            Anonymous Coward, Jan 10th, 2009 @ 3:59pm

            Re: Re: Re: Re:

            Per the EFF site:

            We haven't been able to view the videos, but from what we've heard it seems likely that the uses in question were fair, and therefore noninfringing. If so, it is especially shameful that a news organization, which itself depends heavily on fair use to do its own reporting and commentary, should ignore fair use and thereby chill the free speech of others.

            Per the Citizen Media Law Project site:

            While I haven't been able to view the videos myself, it certainly sounds like Progress Illinois' use of the Fox clips would be fair use under copyright law. Nevertheless, this isn't the first time Fox has disregarded the fair use doctrine when sending takedown notices to YouTube.

            Neither site has seen the videos, so saying that it sounds like what was done was "fair use" is ludicrous. Each site has absolutely no factual basis to even talk about "fair use" in this specific instance. "Fair use" involves a four part factual inquiry as both Mr. Boyle and I have noted, and there is not one iota of information in the two articles that shed light one whether or not the "sounds like fair use to me" has any basis in fact.

            For sites that hold themselves out as being expert in the filed of copyright law, what they have done in this one case is engage in purely uninformed speculation. Maybe this specific matter does represent "fair use". Maybe it does not. The intellectually honest thing to say, as I noted above, would have been "we need more info".

            Importantly, their articles were not a generalized discussion about the "fair use doctrine". They were discussions about a specific situation about which they admitted they had not even seen the original work and the work that borrowed from the original work.

            As for my purportedly insulting comment, I stand behind every word. I noted that fair use involves consideration of four factors that are fact dependent. Boyle noted that fair use involves four factors that are fact dependent. At all levels of the federal court system judges have noted that fair use involves four factors that are fact dependent. The basis for these four factors are explicity stated in law at 17 USC 107. In spite of this you make the statement that I am wrong, as usual.

            Mr. Masnick, you may have a well above average understanding about the concepts that underlie copyright law, but your articles and comments strongly suggest that your expertise stops there. You say you are a student of copyright law. I will believe that when you begin to present arguments that accurately characterize what the law actually says and how it is applied within the courts.

            It is one thing to talk about what you believe copyright law should embrace (e.g., the length of time a copyright remains in force, if "in lieu" damages are really fair, etc.). It is quite another matter to delve into substantive matters about which you have no relevant experience.

            Stick with your economic arguments because they do in many, many instances have substantial persuasive force, as even I will readily admit. Your substantive legal arguments, however, fall on deaf ears to those who are firmly grounded in the law.

            As for Mr. Boyle's book, I suggest you read it once more, but only if you are prepared to set aside your manifest bias and read it to see what points he is actually making. Chapter 2 is one good example, given the palpable hostility you exhibit to anyone who dares note that Mr. Jefferson's views concerning both patents and copyrights are far more nuanced than you assert and would like others to believe.

             

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    identicon
    Overcast, Jan 9th, 2009 @ 10:54am

    We decide, you obey.

     

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    Rekrul, Jan 9th, 2009 @ 11:57am

    Given the seriousness of how such a process can stifle free speech, it's difficult to come up with a compelling reason why the DMCA shouldn't at least allow a "notice and notice" procedure, whereby the user accused of infringement is at least given a chance to respond before the content is taken down.

    The compelling reason, at least to the politicians, is that the media companies don't want it that way. They speak and their puppets in the government listen. It's that simple.

     

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