Declining To Sue Is Hardly An Acceptable Solution For DMCA Takedown Response
from the still-problematic dept
Earlier in January, the EFF and Public Citizen called attention to a local Fox affiliate using a DMCA takedown notice to remove a video that was used by an activist group, Progress Illinois, to comment on the broadcast. It was almost certainly fair use, but thanks to the way the DMCA works, even with a counternotice, YouTube is required to keep the video down for at least 10 business days. Considering that it was being used for commentary on current events, the fact that Fox is able to keep the content down for 10 business days should be seen as a problem. Anyway, as (former Fox lawyer) Ben Sheffner notes, Fox appears not to have filed a lawsuit in those 10 days, and thus, YouTube has restored Progress Illinois' account. Of course, as Sheffner also points out, Fox could still sue Progress Illinois at a later date, despite its failure to do so during the counternotice response window. Again, the whole scenario is problematic. Fox gets to take this video down at a time when it's most useful for commentary purposes, and then retains the right to sue at a later date without ever having to make a case for why the takedown was legitimate. It seems like there should be clarity that, if a company that issues a takedown does not sue following a counternotice, it should be seen as approval that the video is not infringing.