Bogus DMCA Takedown Is Not Copyright Infringement And Not Libel

from the keep-sending dept

We've had a few discussions concerning the available damages awards for bogus DMCA takedown notices. Unfortunately, if you've had your content taken down incorrectly, the damages you can get from those who sent the takedown, are greatly limited. This is a big problem, because bogus takedowns are regularly sent for a variety of reasons, including attempts to silence speech and because a copyright holder is taking a machine gun approach to dealing with infringing content. The case that's received the most attention on this has been the Lenz vs. Universal Music case, involving Universal Music's failure to take fair use into account in taking down a short video of a baby dancing to music.

However, Michael Scott points us to Marty Schwimmer's blog post detailing a content creator's attempt to claim a bogus DMCA takedown was both copyright infringement itself as well as libel, two rather interesting legal claims... both of which got dismissed pretty quickly. The case involved Actors' Equity Association (AEA) which apparently has some sort of setup where it has the right to alert YouTube to any videos that violate the copyright of its members. How it knows whether those videos are authorized or not is not at all clear -- and, in this case, AEA screwed up. It issued a takedown on a video that was posted by the copyright holder who was pretty pissed off. AEA apologized, but the guy sued, and beyond just using the DMCA's 512(f) clause on dealing with bogus takedowns, tried some other claims as well -- including the copyright infringement and libel claims mentioned above.

The claim of copyright infringement claim is quite creative. It was based on the fact that copyright gives you the exclusive right to distribute and display your works, and the bogus takedown interfered with those exclusive rights. Of course, there's a pretty big problem with this theory, which the court was quick to point out: just because copyright law gives you that exclusive right, it doesn't mean that everyone has to automatically let you distribute or display your works, which is effectively what the guy was claiming. If this theory won out, then no one could stop someone else from displaying their works or it would be considered copyright infringement. So it's good that the court rejected this. Related to this, the court also rejected the 512(f) claim, by noting that only applies to situations where the takedown issuer had actual knowledge of the fact that the takedown was bogus, which greatly limits its applicability.

The libel claim stems from the idea that he was falsely labeled for infringing copyrights when he had not done so -- and the court ties that to the same 512(f) claim, pointing out that this would only apply if there were actual knowledge that the takedown notice was bogus.

The ruling here certainly makes sense, but still highlights a massive problem with the DMCA -- which is that those issuing takedowns have absolutely no incentive to determine if those takedown notices are valid. This would seem to seriously violate what's supposed to be a fine balance between copyright law and the First Amendment, in that it allows individuals or companies to stifle the speech of others, using the law, even if they're doing so incorrectly. This seems like a massive problem in how the DMCA is constructed.


Reader Comments (rss)

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  •  
    identicon
    Anonymous Coward, Mar 25th, 2010 @ 1:34am

    It should be simple for the plaintiffs to show actual, e.g., monetary, damages due to a bogus takedown. If they can't show any damages, then there shouldn't be any punishment, right?

    In fact, the publicity benefits from a properly-exploited bogus takedown likely far exceed the publicity you'd get from just leaving the content up. Therefore, the takedown "victims" should be thanking the takedown-submitters.

     

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      identicon
      lame comment detector, Mar 25th, 2010 @ 5:05am

      Re:

      "If they can't show any damages, then there shouldn't be any punishment, right?"

      Wrong

       

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    •  
      identicon
      Anonymous Coward, Mar 25th, 2010 @ 6:42am

      Re:

      Yes because some mother who video taped their child dancing really cares about random strangers from all over the internet looking at this video.

      You sir are a brilliant piece of work.

       

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      •  
        identicon
        Anonymous Coward, Mar 25th, 2010 @ 10:52am

        Re: Re:

        I'm pretty sure the person you are replying to was being sarcastic, not serious. It seems rather obvious and they don't seem to be using sarcasm incorrectly.

         

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    Anonymous Coward, Mar 25th, 2010 @ 1:46am

    "..If this theory won out, then no one could stop someone else from displaying their works or it would be considered copyright infringement. So it's good that the court rejected this."
    Er no it isn't - a DMCA takedown effectivly claims the copyright belings to those who issue the takedown rather than the person who posted the madia so it's infringing the real copyright.
    And you should probably stop calling these DMCA takedowns "bogus" as they are very real and the the hosting sites cannot ignore them as they could (and probably would) if they were bogus.

     

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      Modplan (profile), Mar 25th, 2010 @ 2:26am

      Re:

      As far as I understand it, the only way they can qualify for safe harbor is if they immediately take the content down upon request, irrespective of the content being infringing or not.

      Er no it isn't - a DMCA takedown effectivly claims the copyright belings to those who issue the takedown rather than the person who posted the madia so it's infringing the real copyright.


      You misunderstood. He was talking about how if the logic in that original claim had gone through, it would mean anyone who tried to post a video they owned the copyright to and were refused could claim that this refusal was in itself copyright infringement by not allowing them to do so. This would undermine any content hosts ability to refuse content on the basis of, for example, being "adult" material that they'd rather not have.

      In other words, not hosting or putting out someone elses work would itself be considered copyright infringement, vs now where it's based on whether you distribute content without authorisation and doesn't come under fair use.

       

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        identicon
        Anonymous Coward, Mar 25th, 2010 @ 4:17am

        Re: Re:

        Still though, that doesn't address the claim that a bogus takedown restricts my ability to distribute my copyrighted material.

        I wonder what would happen if average people started issuing bogues takedown requests and suing. The law would change in a week to stop this behavior, because major media companies would not endure this hassle.

        The problem is average citizens aren't organized, but media companies are.

         

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          Michial Thompson, Mar 25th, 2010 @ 5:24am

          Re: Re: Re:

          I think that the court could have ruled in favor of the copyright holder on infringement without it meaning that noone could refused to post his work.

          The court would have had to rule in such a way as to state that "If the copyright holder had the authority and the ability to display the works, then the DMCA was in violation of those rights. If for some reason there was other reasons the works could not have been displayed then the DMCA wasn't even necessary in the first place."

          I recently received a DMCA forwarded from my ISP for a file that I had posted on one of my Web Sites named Apollo13.zip. The File Size was over 2gig. The issuer happen to be representing the movie company. The only issue was that the Zip file contained the Databases and executables, and source code for a project that I called Apollo after the mythical God Apollo, and it happened to be version 1.3.

          I invited my ISP do download it, even give them the password for it top open it, and they refused and insisted that I still remove it. A quick call to my Attorney, $400 later my ISP backed down, but they were threatening to shut down my entire server.

          I am all for Copyright owners enforcing their rights, but the damages that shutting down the server would have done financially would have been unrecoverable. The server also hosted a number of websites for my customers too which would have put me out of business if they were unable to get access to their systems.

          I'm all for the rights of the copyright holders to enforce and control what they own and have created, but honestly the DMCA's guilty until proven innocent process needs to have some kind of checks and balances if it's going to be used like this.

          I rarely agree with little mikee especially on copyright issues, and in the past I've even stood up for the DMCA because I a$$Umed that the talks of it being used wrongly were over exaggerated.

          After this I am all for getting the DMCA shot down... But out of curiosity, has anyone tried suing the Host for taking their stuff down inappropriately?

           

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          Anonymous Coward, Mar 25th, 2010 @ 10:56am

          Re: Re: Re:

          "I wonder what would happen if average people started issuing bogues takedown requests and suing."

          Those average people would be punished and fined for intentionally requesting bogus takedowns on copyright they do not own. but when a big media company does it it's perfectly OK. The laws simply don't apply to individuals the same way they apply to big corporations.

           

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            Anonymous Coward, Mar 25th, 2010 @ 11:01am

            Re: Re: Re: Re:

            In fact, the laws were intentionally crafted the way they are to prevent individuals from making bogus takedowns from big corporations (they get punished for intentionally doing s) yet to enable big media to claim ignorance for making bogus takedowns at the same time. This wasn't done on accident, it was done on purpose.

             

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              identicon
              Anonymous Coward, Mar 25th, 2010 @ 11:03am

              Re: Re: Re: Re: Re:

              err.

              ...to prevent individuals from making bogus takedowns against big corporations ... ( ... punished for intentionally doing so) yet to enable big media to claim ignorance when they make bogus takdowns against individuals ...

               

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      taoareyou (profile), Mar 25th, 2010 @ 4:12am

      Re:

      "And you should probably stop calling these DMCA takedowns "bogus" as they are very real"

      Bogus here means they are a false claim. It's not implying they are fake claims.

       

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        Anonymous Coward, Mar 25th, 2010 @ 7:51am

        Re: Re:

        So call them "DMCA takedowns with false claim" or preferably something more efficient, but not "bogus DMCA takedown" which means something very different - there might actually be some bogus DMCA takedowns at some point and then Mike is going to get very confused !.

         

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          ChurchHatesTucker (profile), Mar 25th, 2010 @ 9:00am

          Re: Re: Re:

          "So call them "DMCA takedowns with false claim" or preferably something more efficient..."

          How about 'fraudulent?'

           

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            Anonymous Coward, Mar 26th, 2010 @ 2:08pm

            Re: Re: Re: Re:

            That works too, I'll call them fraudulent since that's more accurate anyways. Unfortunately the corporacracy doesn't care if they commit fraud, the consequences are small, but if someone does something as harmless as infringement the consequences are much greater.

             

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  •  
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    Ed Woychowsky, Mar 25th, 2010 @ 4:45am

    bot

    I wonder if it's possible to write a bot that does nothing but crawl the web and issue bogus take down notices? I'm not talking about sites like YouTube, I'm referring to .gov sites.

    Perhaps if the system is abused so that it impacts lawmakers it will be changed. At the very least, I might get a crime named after me.

     

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      abc gum, Mar 25th, 2010 @ 5:13am

      Re: bot

      All that would do is force new laws which implement draconian measures upon the masses while leaving the original bogosity unchanged

       

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  •  
    identicon
    Anonymous Coward, Mar 25th, 2010 @ 5:33am

    this ruling highlights the problems of misusing copyright material without permission, those using content without permission have absolutely no incentive to determine if their use of the content is valid.

     

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    a-dub (profile), Mar 25th, 2010 @ 5:44am

    "just because copyright law gives you that exclusive right, it doesn't mean that everyone has to automatically let you distribute or display your works"

    But when a third party issues a take down notice to a content provider like YouTube, there should be some kind of recourse on behalf of the copyright holder. This isnt about content providers allowing creators to distribute or display works, but about some third party forcing the content provider to remove a creators work. IMO, that does infringe on the copyright holders rights, not by YouTube, but by AEA. This is one area where copyright enforcement should be beefed up to include hefty penalties for issuing bogus DMCA take downs.

     

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    known coward, Mar 25th, 2010 @ 6:26am

    stockade and lashes

    Bring back the stockades, 24 hours in the stocks and one lash for each bogus take down notice for the entire exectutive chain responsible for the false notices.

     

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  •  
    identicon
    Anonymous Coward, Mar 25th, 2010 @ 8:20am

    Its an interesting concept that I am sure is being explored by more and more law firms. The idea that the use of a wrongly issued take down notice could affect other legal rights:
    Interference with a business model.
    Interference with a contract.
    Theft of services.
    etc etc
    Three hurdles to claims not provided within the DMCA though that will be argued:
    "Copyright is in the exclusive provence of the federal government, and the DMCA provides the sole remedy."
    Without showing actual damages, there is no harm, therefore no damages.
    Without proving knowledge that the notice has no legal basis, there is no liability.

    Hopefully though, the more publicity the this issue gets, the more likely that the laws will be changed.

     

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