Facebook Using DMCA Notices To Takedown Private Videos?

from the say-what-now? dept

You may remember last month that we had a story about Google taking down a video on Google Video for copyright infringement, even though the video itself (a brief Christmas home movie) was set to private, and only 3 or 4 people had seen it. We were curious as to why Google would be scanning videos set to private and taking them down. At least in that case, Google admitted that it was an automated scanner (though never explained why it was reviewing private videos).

However, some friends of mine are now facing a similar, but more worrisome, situation with Facebook. A friend got married back in July, and some other friends who were in attendance filmed various parts of the wedding ceremony and reception. As is pretty common these days, they later took the best clips from those videos, set them to music and posted them to Facebook -- but set the videos to only be shared directly with friends. My friend Hersh used two songs dubbed over the video, one by a relatively unknown artist, Xavier Naidoo, and one by Kanye West. My friend Michael had an entirely different video, and used two different songs. One by the Deftones, and one by Jason Mraz.

Even though both videos were posted in July, and both were set to be only viewable to friends, rather than made public, both Hersh and Michael received DMCA takedown notices from Facebook with the videos taken down. The takedowns (which both sent me) don't specify that Facebook received a takedown, though they do point them to a "counter-notification" page, which is what the DMCA would offer. So, from what's been presented, it's unclear if Facebook actually received a DMCA or just decided on its own to take down two private videos of the same event on the same day.

While, technically, (and this point is arguable) these videos may be infringing, there's a good case to be made that they were fair use. They most certainly were not commercial in nature, and most clearly did not diminish the commercial potential of the works in question. In fact, Hersh named 3 of our friends who specifically had asked him who Xavier Naidoo was, so they could go find more of his music. Now Hersh can no longer promote Naidoo's music. That seems to go against everything that copyright is supposed to be about.

Neither is going to file a counternotice, because of the gray area concerning whether or not this is fair use (something Hersh understands quite well as a law student), and Facebook's form makes you swear under penalty of perjury that the content is legal. The whole incident raises a bunch of questions about how Facebook goes about taking down private videos, and why such videos are considered copyright infringement in the first place. In the meantime, if you have videos with backing music in them, apparently you're not welcome at Facebook.

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Computers Don't Have Good Faith Beliefs

from the fun-with-takedowns dept

My soon-to-be colleague David Robinson has a great post about the recent dancing toddler copyright story, in which he tries to puzzle out the DMCA's implications for automated takedown programs. The DMCA provides copyright holders with a remedy for online materials they believe to be infringing: they may send a notice to a relevant ISP demanding that the materials be removed. ISPs have a strong incentive to comply with such requests, because doing so gives them immunity from liability for the copyright-infringing activities of their customers. Hollywood has used this process aggressively, sending thousands of takedown notices to companies like YouTube. To prevent abuse of the takedown power, the DMCA also provides that anyone who "knowingly materially misrepresents" the copyright status of a work is liable to the target for damages and attorney's fees.

One interesting question is whether the DMCA allows fully automated takedown requests, or whether the law requires that a human being review each takedown notice before it is sent. The law requires copyright holders to state that "the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." The key phrase here is "good faith belief." In order to state that one has a good-faith belief, one presumably has to form a good-faith belief in the first place. And obviously, an automated script is incapable of forming a good-faith belief about anything, so any takedown sent by an automated script would be a lie.

David suggests that copyright holders could form "good faith beliefs" in a statistical sense—that if their script were accurate enough, they could form a "good faith belief" that the vast majority of materials identified by the script was infringing, even if they hadn't identified each one individually. But I don't think this line of reasoning works. As EFF's Fred Von Lohmann notes in the comments, the liability provision isn't an aggregate inquiry. It asks, for each takedown, whether the copyright holder had misrepresented the copyright status of the work in question. If a copyright holder sends an erroneous takedown notice, it is of no comfort to the recipient—and of no relevance to the law—that the copyright holder also sent a number of valid takedown notices the same day. For each mistaken takedown notice, the question the courts must ask is whether the misrepresentation was "knowing" and "material."

One plausible interpretation of this language would be that since no human being reviewed the takedown notice, the mistake couldn't have been "knowing," and therefore the sender of an automated takedown could never be liable. This, however, would make a mockery of the purpose of the statute, which was to deter reckless or malicious use of the takedown power. If failing to examine material at all before issuing a takedown were sufficient to confer immunity, that would totally undermine the purpose of the statute. For this reason, I think the test put forward by EFF in the dancing toddler case—whether a copyright holder exercising reasonable care should have known the material was not infringing—makes more sense. And on this reading, companies would likely be free to issue automated takedowns, but they would be liable for any takedowns that were clearly erroneous. As Fred points out, this gets the incentives right, because it gives Hollywood a strong incentive to use automated takedown scripts judiciously.

Timothy Lee is an expert at the Insight Community. To get insight and analysis from Timothy Lee and other experts on challenges your company faces, click here.

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