A Closer Look At How The Takedown Process Is Widely Abused

from the let's-look-at-the-numbers dept

Last week, we wrote about how, in a filing over the proposed three strikes rule in New Zealand, Google had filed a report pointing to widespread abuse of the DMCA takedown process. Plenty of others have noted the same thing, but some of the entertainment industry's lawyers are claiming my original report was false (it's great to feel loved). It's worth looking more closely at the numbers. Thankfully, one of our readers, Chris Brand, sends in the details of where Google's numbers came from. They did not -- as implied by the original report, on which I based my post -- come from Google's internal review, but from a report from two academics who studied the takedown process (pdf file).

From that report, we learn that the original letter from Google (and the subsequent reporting in PC World) was a bit misleading, but the actual point remains largely the same. This is why the entertainment industry is nitpicking around the margins. They think that if they can raise doubts about the fact that someone reports 37% instead of 30%, the rest of their argument is incorrect. But, the analysis by the academics clearly demonstrates the point that Google is making clear with its filing with the New Zealand government: when you grant the power to commercial parties to "take down" content or disconnect someone because they feel "wronged," they will undoubtedly abuse that process. That's quite clear from the nature of the numbers in the report -- even if the original Google filing and resultant PC World article were a bit off on the specific numbers. So, from the actual report, we see:

On DMCA notices:


• Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
• Notices to traditional ISP's included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an ISP can only honor by terminating the target's Internet access entirely);


On link removal notices:


• Over half--57%--of notices sent to Google to demand removal of links in the index were sent by businesses targeting apparent competitors;
• Over a third--37%--of the notices sent to Google targeted sites apparently outside the United States.

As you can see, some of the numbers in the original PC World report (and Google's letter) were attributed to the wrong thing -- it wasn't about DMCA takedown notices specifically, but about link removal requests. However, link removal requests certainly would seem to represent a good proxy for DMCA takedowns. So, the overall point that Google is raising is still quite valid: these sorts of processes, whereby you allow a private entity to demand takedown, are wide open to abuse by those who want to take down things they have no legal right to take down. The entertainment industry lawyers will play a fun game where they pretend that because the numbers were slightly mixed up, the whole thing is fine to ignore -- but that's because they don't have any real argument concerning the fact that the DMCA (and other takedown) processes are widely abused. Furthermore, those same defenders of Hollywood's monopoly system will have great fun with the fact that these numbers are from academics rather than Google itself -- but since Google was using them in its filing with the government, it makes sense that the numbers are, in fact, consistent with what Google sees internally.

In the meantime, it's great to see yet another validation of what I've said in the past: when I post something, it's part of the conversation, and it's great to see the comments go back and forth to bring out how the original numbers were slightly off, allowing us to continue this conversation and clarify those numbers. You don't see that in the traditional press very much, do you?

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IFPI Admits It Screwed Up; Claims Mistakes Happen

from the yes...-but... dept

Last week, we noted how the IFPI had sent a nastygram to a music blogger, forcing him to take down a song -- even though the musicians behind the song wanted it posted. After the band contacted the IFPI, someone from the IFPI sent an apology to the site in a way that doesn't suggest it's really all that sorry:

IFPI was contacted by a member of the label who confirmed you were given permission to post the file on your site.

We were unaware of this agreement but now that it has been notified to us please feel free to upload the file.

Due to the volume of infringing content we find online there will be instances where legitimate files are picked up as infringing. We hope this matter shows that once we have the correct information we do not want to stop the promotion of music online.

In other words, "mistakes happen," and the responsibility isn't ours for making the mistake -- but it falls on the individual bloggers who may or may not be able to alert the musician in question and get them to call our legal dogs off. Of course, most laws concerning takedown notices require the folks issuing the takedown to properly express the wishes of the copyright holder. It would appear that the IFPI did not do that in this case, and an after-the-fact apology seems rather weak, given the weight that a legal threat from the IFPI could hold to an individual blogger without a legal team behind him.

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Viacom Ignores Promise: Sends Bogus Takedowns To YouTube

from the ooops dept

You may recall that back before it sued YouTube, Viacom sent the company 100,000 takedown notices, many of which turned out not to violate Viacom's copyrights. At first, Viacom tried to brush it off as totally innocent collateral damage, but after the EFF filed a lawsuit pointing out that false positives violate the part of the DMCA where each takedown must swear that the sender is the legitimate copyright holder, Viacom not only backed down, but promised to be much more careful with its takedowns. Specifically, it promised to actually review each video before sending a takedown.

However, it now appears that Viacom may not be living up to that promise. Consumerist notes that Viacom has taken down an independent filmmakers' movie to which it has no copyright claims whatsoever. The animation in question was the woman's senior project, and was not a Viacom property at all.

The video remains up for now, but Viacom now gets access to all the viewership stats on a video property it has no rights over, and the filmmaker, Joanna Davidovich, is rightfully worried that the movie is going to get taken down by a big media company who has no right to it at all.

Update: Viacom has now apologized and admitted its mistake, claiming that the video had been included in a Viacom film festival, and Viacom didn't realize that they did not retain the copyrights to the material. While the filmmaker in question is satisfied with this result, it's still quite questionable. Viacom still filed a false takedown notice after specifically promising that it would not. Filing false takedowns, even done with good intentions is still a violation of the DMCA and can be quite chilling to content creators.

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