Techdirt. Stories filed under "takedowns"

Filmmaker Behind The Pirate Bay Documentary Says Bogus DMCA Takedowns Take Away His Free Speech

Mike Masnick — Thu, 23 May 2013 13:01:43 PDT

We just wrote about how major Hollywood studios had included links to the freely available, Creative Commons-licensed documentary, TPB AFK, in a bunch of bogus DMCA notices to Google, meaning that perfectly legitimate links were likely being removed. The director of that film, Simon Klose, has now responded with an open letter in the form of a video, where he notes that this is a clear violation of his free speech. He points out that there are basically two possibilities. First, that these studios are purposely trying to censor a film about The Pirate Bay, which highlights the civil liberties questions raised by the studios legal pursuit of the founders of the site, and second, that their technology for finding infringing content absolutely sucks. He points out that neither of these situations is a good one. The first one sounds crazy, but, as he notes, not quite as crazy as some of the things that were revealed in the film, such as Warner Bros. hiring the lead investigator in the case while the investigation was still ongoing. But even if it was an accident, that doesn't change the fact that his legitimate content was being blocked from Google, and he considers it a free speech issue.

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Major Hollywood Studios All Sent Bogus DMCA Takedowns Concerning The Pirate Bay Documentary

Mike Masnick — Mon, 20 May 2013 13:13:00 PDT

We see so many bogus DMCA takedowns, and we hear the big copyright holders insisting that it's just an accident each and every time -- and not to worry about the collateral damage and censorship it leads to. So it seems interesting that TorrentFreak has uncovered a series of bogus DMCA takedown notices to Google from four different giant Hollywood players -- Viacom, Paramount (owned by Viacom), Fox and Lionsgate -- that each ask it to remove links to Simon Klose's excellent documentary about The Pirate Bay TPB AFK. As TorrentFreak notes, Fox, via DtecNet (another total failure for the "six strikes" company), asked Google to remove a link to the movie on Mechodownload. Viacom asked for links to be removed to the movie on Mrworldpremiere and Rapidmovies. Lionsgate asked for to remove a link to the movie from The Pirate Bay of all places. Needless to say, all of these were authorized copies that the movie studios were seeking to have hidden.

Beyond the obvious concern about censoring a movie that shows, perhaps, a more sympathetic side of the TPB crew and their legal situation, these kinds of take downs serve another, more nefarious purpose: making sure there is less value for authorized works on these various sites. You hear it all the time from these companies that these sites are "all bad" and must be taken down. Having authorized content really looks bad, so it's nice for them that they can remove it by filing bogus DMCA claims with no real recourse. No wonder the MPAA is so vehement that it shouldn't need to consider fair use before sending bogus takedowns.

Yes, I'm sure these were all just more "accidents" but the impact is very real. For struggling filmmakers like Klose, having authorized copies of his film removed from Google has a serious impact. Copyright maximalists never seem concerned in the slightest about the collateral damage on the people who have actually learned to use these platforms well. They prefer to protect those who fight against new systems of distribution, while harming those who have succeeded in using them.

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MPAA Freaks Out: Insists That Having To Consider Fair Use Before Filing A DMCA Takedown Would Be Crazy

Mike Masnick — Mon, 13 May 2013 08:41:00 PDT

Oh, there go the wacky lawyers at the MPAA again. Last week we noted that a key fight may be shaping up concerning the contours of Section 512(f) of the DMCA -- the clause that is supposed to allow people to fight back against bogus DMCA takedowns. The details of the fight itself are pretty silly -- basically two angry bloggers fighting with each other -- but the underlying legal issue is of critical importance. As we've noted, to date, 512(f) has been rendered almost entirely toothless, such that tons of completely bogus DMCA notices are filed all the time, stifling free speech. Here was a case that might actually allow a 512(f) win, and provide some further basis for future responses to abusive DMCA takedowns.

Is it really any surprise that the MPAA suddenly took notice of the case after the EFF filed an amicus brief? The MPAA had to step in and argue why it should be allowed to continued to file millions of DMCA takedowns without having to be that careful about bogus takedowns, because actually having to make sure a work is infringing would be too much work. So, the MPAA basically says, "we should be allowed to stifle free speech with no consequence because OMG PIRACY@!@!!" Yes, that's a paraphrase, but that's the crux of the MPAA's argument.

The MPAA respectfully submits that such an interpretation of § 512(f) is wrong and threatens to cause significant harms that Congress could not possibly have intended. The MPAA's interest in this matter is not academic. The MPAA and its members confront the piracy of their works by Internet actors on a massive global scale. One of the only means that the MPAA and its members have to ensure that Internet services that carry, host, or link to such content take steps not to facilitate such rampant piracy is through the DMCA's notice-and-takedown provisions. The rule that Plaintiff and Amici advocate, if carried to its logical conclusion, would impose significant and unwarranted burdens on copyright owners like the MPAA and its members who unfortunately must send literally millions of takedown notices every year to combat the mass infringement of their works on the Internet.

That's both wrong and ridiculous. It's not an "unwarranted burden" to ask DMCA filers to actually check to make sure a file is infringing. It's the whole freaking point. What's really going on here is that the MPAA is finally realizing that its now-common practice of hiring companies like DtecNet to send automated takedowns might run afoul of 512(f) because the computer programs aren't taking into account things like fair use.

So, the basic point that the MPAA is making is silly and wrong.

They're also flat out wrong on the law. The issue here, once again, is that the MPAA insists that fair use is only an "affirmative defense," and thus it has no reason to consider it before filing a DMCA takedown.

Fair use is an affirmative defense. It excuses conduct that otherwise is actionable as infringement, as the Supreme Court, the First Circuit, and numerous other courts and the Copyright Act’s legislative history have made clear.

But that is not what the law actually says. It does not say that it "excuses conduct that otherwise is actionable as infringement." Section 107 of the Copyright Act says:

... the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.

This is important. The law does not say that this it is an infringement, but "excused." It says it is not an infringement. If it's not an infringement, then it means that the use is authorized. And that's the key to the whole issue here, because 512(f) says you can be liable for damages if you misrepresent "that material or activity is infringing." Infringing. Again, fair use is not infringing. So if it is a clear case of fair use (and we agree that not all cases of fair use are clear), then not considering fair use whereby one would recognize that the use is authorized, and still filing the DMCA takedown, would be a misrepresentation that the work is infringing.

This isn't just me making this up. It's what the court said in the Stephanie Lenz case as well:

Here, the Court concludes that the plain meaning of “authorized by law” is unambiguous. An activity or behavior “authorized by law” is one permitted by law or not contrary to law. Though Congress did not expressly mention the fair use doctrine in the DMCA, the Copyright Act provides explicitly that “the fair use of a copyrighted work . . . is not an infringement of copyright.” 17 U.S.C. § 107. Even if Universal is correct that fair use only excuses infringement, the fact remains that fair use is a lawful use of a copyright. Accordingly, in order for a copyright owner to proceed under the DMCA with “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 owner must evaluate whether the material makes fair use of the copyright. 17 U.S.C. § 512(c)(3)(A)(v). An allegation that a copyright owner acted in bad faith by issuing a takedown notice without proper consideration of the fair use doctrine thus is sufficient to state a misrepresentation claim pursuant to Section 512(f) of the DMCA. Such an interpretation of the DMCA furthers both the purposes of the DMCA itself and copyright law in general. In enacting the DMCA, Congress noted that the “provisions in the bill balance the need for rapid response to potential infringement with the end-users [sic] legitimate interests in not having material removed without recourse.”

The MPAA's desired interpretation of 512(f) is basically an attempt to reject the Lenz ruling entirely... and, more importantly, to make sure that almost no case could ever qualify for 512(f) damages. Which is exactly what they want: to be able to brush off all of the bogus DMCA notices they send without ever having to fear reprisal for stifling someone's speech.

I guess this is one more to add to the pile of evidence showing how absolutely ridiculous it is when the MPAA pretends it's a defender of fair use. A defender of fair use wouldn't support an interpretation of 512(f) that basically allows for DMCA takedowns on clearly fair use situations. And yet that's exactly what the MPAA is arguing for here.

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Blogger Issues DMCA Notice To Take Down Posts Infringing His 'How To Infringe' Post

Tim Cushing — Fri, 10 May 2013 09:18:46 PDT

Anurag Ghosh is a blogger who would like to have some infringing posts removed from the web. See if you can spot the point when Ghosh's irony detector malfunctions.

Copyright claim #0:

My article, “How to Play Nintendo DS Games on Android”, is infringed by the text excerpted on the site, beginning with the text: “Did you know that your Android device can play NDS games? With the help of an emulator (yes there is a free, open-source DS emulator out there on Google Play), you can play games like Phoenix Wright, Dragon Quest IX and Touch Detective on your phone.”

Original work URL(s):

http://anurag2008.hubpages.com/hub/How-to-Play-Nintendo-DS-Games-on-Android

To paraphrase: "Yeah, it looks like some people have infringed my post about infringing, so if you could do me a solid and take those out, that would be great.

Ghosh's post, titled "How to Play Nintendo Games on your Android," does exactly what it says on the tin, pointing readers toward a free, open-source emulator, providing instructions on installing an NDS BIOS and directing readers towards Google to search for .nds ROMs. Ghosh has thoughtfully included the following "warning" on his post.

Downloading ROMs and BIOS files is illegal. I don’t support piracy and this guide is only for entertainment purpose. Reader discretion is advised.

The discussion about whether emulation = infringement can wait for another day, but I'm very definitely sure Nintendo considers emulation of current gen hardware/software to be infringing. In fact, Nintendo seems to get a bit irate about it when "questioned" about it, according to its extensive FAQ on emulation.

How Does Nintendo Feel About the Emergence of Video Game Emulators?

The introduction of emulators created to play illegally copied Nintendo software represents the greatest threat to date to the intellectual property rights of video game developers. As is the case with any business or industry, when its products become available for free, the revenue stream supporting that industry is threatened. Such emulators have the potential to significantly damage a worldwide entertainment software industry which generates over $15 billion annually, and tens of thousands of jobs.

How Come Nintendo Does Not Take Steps Towards Legitimizing Nintendo Emulators?

Emulators developed to play illegally copied Nintendo software promote piracy. That's like asking why doesn't Nintendo legitimize piracy. It doesn't make any business sense. It's that simple and not open to debate.

Wow. Testy. Ghosh knows it, too. Hence the disclaimer.

Now, Ghosh may have a legitimate claim that his post is being scraped (or reposted) without his consent, but complaining about infringers infringing your post about infringement is more than a little like sending an official notice informing Google that listed kettles are black and infringing on your original pot's blackness. Perhaps the offending scrapers could just put up a little "warning" stating they copied Ghosh's post for "entertainment purposes only." It certainly entertained me.

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Key Legal Fight Shaping Up Over The Legality Of DMCA Abuses

Mike Masnick — Fri, 10 May 2013 08:17:46 PDT

You may remember that, back in January, we wrote about a blog fight between two women with very different views on childbirth, which then descended into a ridiculous copyright fight. I won't rehash all of the details, but the short version was that as a part of this fight, Gina Crosley-Corcoran posted a photo of herself giving the middle finger, and in posting it she told her rival, Dr. Amy Tuteur, it was "something you can take back to your blog and obsess over." Tuteur reposted the photo to her own blog, along with a blog post about Crosley-Corcoran. Crosley-Corcoran then yelled copyright infringement, at which point Tuteur's husband (a lawyer) explained to Crosley-Corcoran's lawyer what fair use meant (and also what an implied license is). And then... DMCA takedown notices started flying, leading Tuteur to change her web host twice. Furthermore, Crosley-Corcoran bragged about using the DMCA takedowns to silence Tuteur and get her blog taken down -- and (according to Tuteur's lawyer) Crosley-Corcoran's own lawyer admitted that she had no legitimate copyright claim.

As we noted in our post, if there ever were a case to explore the punishment for violating the DMCA, this seemed like a good one. The key to this, of course, is 512(f) of the DMCA, which says that if you make a material misrepresentation in a DMCA takedown, you can be liable for damages, including costs and attorney's fees. However, at the same time, we noted why it's almost impossible to get someone punished for a bogus DMCA takedown. Still... the evidence on this case seemed so extreme, with Crosley-Corcoran more or less telling the world that she was abusing the DMCA specifically to silence Tuteur, we thought it actually had a chance.

But then, a month ago, the judge in the district court in Massachusetts made a bizarre ruling rejecting the 512(f) claim in such a way that suggested no 512(f) claim would likely ever survive. It was bizarre in a few different ways. As Eric Goldman noted in his discussion of the ruling, the court was only supposed to be looking at a separate issue, involving the jurisdiction of the court over the case, but simply chose to go ahead and effectively rule on the key parts of the case, even though neither party had briefed the key issues. Among other things, the court focuses just on the first DMCA notice, and not the subsequent ones or the blatant statements of plans to keep using the DMCA to keep Tuteur's entire blog offline. Goldman calls it "the most bizarre Article III analysis I've seen" because even though the court says that Tuteur has a plausible fair use and implied license claim, that doesn't matter, because the court argues that the DMCA filer doesn't need to pay attention to that:

there is no requirement in the DMCA that a notice-giver inform the service provider of an infringer's possible affirmative defenses, only that she affirm her good faith belief (as appears to be the case here) that the copyrighted material is being used without her (or her agent's) permission

That's not actually what the law says. And it's not actually what other courts that have ruled on this issue have said. At the very least, the court, recognizing that no briefs had been filed on the subject, gave Tuteur 21 days to respond. She did so with a long and detailed filing that reminds the court that this isn't about just that one DMCA filing, but a lot more. And also highlighting that (a) the DMCA isn't limited to just cases where things are posted without permission and (b) the other cases have said that a filer needs to take fair use into account. As her filing notes:

If fair use and license can be ignored when filing a DMCA takedown notice, persons like the Defendant (and, indeed, far more powerful organizations), would have a safe haven to freely muzzle their critics by literally chasing them off the Internet. A victim – who did nothing unlawful and whose acts were authorized by the Copyright Act – would be left without recourse and without a voice.

On the same day, the EFF along with Harvard's Digital Media Law Project also filed an amicus brief explaining why the court is simply wrong about the DMCA abuse clause. After listing out four different cases that came to a different conclusion than the judge in this case, it notes:

The DMCA requires the copyright owner issuing a takedown notice to affirm that she 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.” 17 U.S.C. § 512(c)(3)(A)(v) (emphasis added). “The fair use of a copyrighted work . . . is not an infringement of copyright,” 17 U.S.C. § 107. An allegation that a copyright owner issued a takedown notice knowing that the use in question was in fact authorized by law, and/or that she had not formed a good faith belief to the contrary is, therefore, sufficient to state a claim under Section 512(f).

This is the fundamental mistake that the court made. The DMCA doesn't say that you can only be punished if the you didn't have permission -- but if the use is not authorized by the law. And, the law clearly states that fair use is not infringement. Thus, fair use is authorized use even if it doesn't involve permission.

Crosley-Corcoran's lawyers apparently were not at all pleased to see the EFF and the DMLP jump in on this case, and proceeded to quickly oppose the entire brief, arguing that it shouldn't be allowed in the case. The reasoning? Apparently, that Tuteur has good enough lawyers already and doesn't need any support from the likes of the EFF or Harvard:

It is rare – perhaps sadly so – that one has both the opportunity and a reason to praise the litigation skills of opposing counsel. This, then, is something of a unique opportunity. Attorney Beck, a former partner with the national law firm Foley & Lardner LLP, and Attorney Riden, a former senior counsel to Foley & Lardner, have, collectively, almost 40 years of sophisticated litigation experience. Among his many accolades, Attorney Beck is AV rated by Martindale-Hubbell, a Chambers recognized attorney, a Massachusetts Super Lawyer, a Top 100 New England attorney, and a nationally recognized authority on trade secret and non-competition law. Attorney Riden is a Massachusetts Super Lawyer, a recipient of the Best Lawyers designation, a frequently quoted legal authority, and a former appellate law clerk. They are, in short, eminently qualified to represent the interests of Plaintiff in this action and to fully brief the issues raised by this Court’s Order of April 10, 2013, requiring them to show cause why the present action should not be dismissed.

This being the case, the addition of two more legal Goliaths will do little to advance this Court’s understanding of the issues raised (which do not seem to be so complex as to cry out for the assistance of non-parties), and instead will only needlessly multiply the costs of an already overly-costly litigation. For the reasons stated herein, Defendant Gina Crosley-Corcoran respectfully requests that the non-party requests for leave to file an amicus brief be denied.

There is a legitimate argument to be made that, especially at the district court level, if an outside party filing an amicus curiae brief that is only repeating the same arguments as a party in the case, it is not appropriate. However, it does seem that the EFF/DMLP briefing does raise a few different key points than Tuteur's brief, which focuses much more on the specifics of her situation, while the amici brief covers much more generally the policy issues behind section 512(f) and more of the legal history there. It seems, especially given the court's apparent misreading of the law in its initial order, that it makes sense to include the brief.

Finally, on Thursday, Crosley-Corcoran filed her response to Tuteur's argument, in which she claims (of course) that "the court had it right the first time." Except, the law is pretty clear and this filing has it wrong. I don't really see how anyone can argue that. From there, they make two key arguments. The first is that, despite the fact that Tuteur ended up having to switch hosts twice, neither switch actually involved a host taking down the content in question, and thus she cannot claim any damage from the DMCA takedown notices, bogus or not. Specifically, the filing argues that Tuteur chose to move from the first host, BlueHost, after she sent a counternotice and after BlueHost had said it would take no action (though, this is after BlueHost had warned her earlier that if she didn't remove the content, it could close down her account). It then says that the move away from the second host, DaringHost, was because the site was getting too much traffic, and the owner of DaringHost, supplied a deposition stating that he had explained this to Tuteur.

This absolutely does weaken Tuteur's 512(f) claim, because it certainly decreases the damages caused by the takedown notices. But it still does ignore the two key points pushing back on this: Crosley-Corcoran's lawyer admitting that there was no legitimate copyright claim and Crosley-Corcoran herself bragging publicly about using the DMCA to silence Tuteur.

Separately, the filing goes back to the same point that we've discussed before about why it's so difficult to win a 512(f) case: the use of the "subjective bad faith" standard. Of course, one would think that Crosley-Corcoran's own statements would pass that bar. However, the filing insists that her lawyers took fair use into account, and simply decided that Tuteur's use didn't qualify (which seems to go against what Tuteur claims Crosley-Corcoran's lawyers told her). Crosley-Corcoran's filing conveniently ignores all of that and says, basically, "of course we considered fair use and rejected it" so the 512(f) claim is dead.

If that's allowed, then that effectively makes 512(f) a useless law, because all anyone has to say is they considered it before sending a bogus DMCA takedown and they can get away with it. That's clearly not what Congress intended with the law, otherwise why include it at all?

Either way, this case is shaping up to be a key one to watch in determining whether or not there are any teeth at all (even little ones) associated with 512(f) in providing a tool for those who have been attacked with bogus DMCA filings.

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EFF Gives Prince A 'Lifetime Aggrievement Award' For DMCA Takedown Abuse

Mike Masnick — Wed, 8 May 2013 10:39:31 PDT

The EFF has inducted singer Prince into its "Takedown Hall of Shame" by giving the purple one the "Raspberry Beret Lifetime Aggrievement Award" for his consistent and neverending abuse of the DMCA process to take down content he has no right to takedown. In giving him the award, they list out three examples we've spoken about before:

Prince's recent DMCA takedown on six second clips on Vine of a Prince concert at SXSW. These clips were clearly fair use -- showing tiny snippets where the music isn't even recognizable.
Prince's DMCA takedowns sent over fan-recorded concert videos of his performance of Radiohead's song "Creep." As EFF points out, Prince has no real copyright claim here. The copyright of the song is Radiohead's -- and Radiohead demanded that the videos be put back online -- and the copyright on the video is whoever took the videos. But that didn't stop Prince.
Of course, no surprise here, Prince's connection to the infamous YouTube takedown of Stephanie Lenz's 29-second video of her toddler dancing to a Prince song in her kitchen. The lawsuit over that one is still going on. That one might actually be more about Universal Music than Prince, but given his other takedown actions, it would be surprising if he didn't support Universal on that one (even if he's had other disagreements with the label).

Of course, if the EFF wanted, it could make the list even longer. Prince sent a cease & desist to an artist who put together a puppet-based tribute to the artist. He similarly threatened a bunch of fan websites, claiming that any photos of him or his album covers was infringement. Oh, and then there was the time he sued 50 musicians for having the temerity to record a tribute album to Prince for his birthday. Such a nice guy.

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Takedown (Non-DMCA) Filed Against YouTube Video Challenging Controversial Cancer Clinic

Mike Masnick — Fri, 19 Apr 2013 11:20:15 PDT

Until reading up on this story, I had never heard of the Burzynski Clinic, which is a controversial "cancer treatment" clinic in Houston. It appears that the clinic has something of a history of trying to legally threaten and bully those who challenged its treatments, often with threats of libel lawsuits against critics. After the last major incident, in November of 2011, the clinic issued a press release saying that it had fired the "web optimization" expert it previously hired "to attempt to stop the dissemination of false and inaccurate information." However, the tone of the rest of the letter was still in line with the pattern of complaining about critics.

And, it appears, the clinic continues to bully critics too. The website Skeptical Humanities is claiming that Eric Merola, a filmmaker close to Burzynski who made an uncritical film about it, has been able to take down a video critical of Burzynski, and is also trying to get the author at Skeptical Humanities, Bob Blaskiewicz, kicked off Facebook. Skeptical Humanities claims that he used an "illegal DMCA takedown" to get the video taken down, but I don't think that's correct. You can look at the page where the video once was, and rather than a typical DMCA notice, instead it has a notice I hadn't seen before: "This video has been removed as a violation of YouTube's policy against spam, scams, and commercially deceptive content." That's not a DMCA (or even a content ID) issue, but rather (as it suggests) stems from complaints about the content being somehow spammy or scammy. Blaskiewicz decided to repost/mirror the video, and I don't see how anything in it qualifies as "spam, scams, and commercially deceptive content." It presents a bunch of information about why people might want to be skeptical of the Burzynski clinic, but is quite clear in laying out its evidence and suggesting people be careful and verify everything. Furthermore, Blaskiewicz notes that, last year, Merola had urged people on Facebook to report some Blaskiewicz Facebook comments as "spam" or "hate speech" with the very clear stated goal of having Facebook "knock this guy off for a while." For a company that claims to be careful about its social media presence, you'd think it could do a lot better than going after online critics.

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Movie Studios Filing DMCA Takedowns Over DMCA Takedowns

Mike Masnick — Fri, 5 Apr 2013 14:33:00 PDT

We've seen this in the past as well, but TorrentFreak has noticed that a number of movie studios have been sending Google DMCA takedown notices that reference earlier DMCA takedown notices now appearing on ChillingEffects.org. 20th Century Fox and NBC Universal appear to be the main culprits. While it is true that those DMCA notices provide links to the original content, it seems a bit ridiculous to then argue that those notices themselves need to be taken down. ChillingEffects provides much needed transparency in how the DMCA is being used (and frequently abused) by companies. Google, thankfully, has so far refused to comply with such takedown requests. It's not clear if these are just the result of the usual robot searches by the studios (probably) or a concerted effort to hide takedown notices (less likely, but still plausible). Either way, it does highlight the ridiculousness of arguing that Google should be liable for links to sites that link to possibly infringing content. But... that's how the legacy Hollywood players view the DMCA these days. Anything, anywhere in the chain that might possibly lead one to a possibly infringing work must be liable as well, and those responsible for those sites must then, obviously, act as Hollywood's personal police force.

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Here's The Vine Video Prince Abused The DMCA To Take Down

Mike Masnick — Thu, 4 Apr 2013 10:01:54 PDT

We just posted about Prince's NPG Records issuing DMCA takedowns on a set of Vine videos. While noting that Prince regularly seeks to shut down internet support of his work far beyond what the law allows, we also pointed out that, given the 6 second limit on Vine videos, it seemed almost certain that the videos in question would be protected as fair use and/or de minimis use. After posting that story, we heard from Zack Teibloom who, it turns out, is the person who shot and posted the Vine videos in the first place. They were taken at Prince's SXSW concert. He noted that he treated the takedowns as "cease and desist" letters and chose to take them all down. Before he did so, we were able to snag one of the videos, which we've now posted to YouTube solely for the discussion over whether or not the original takedown was an abuse of the DMCA. We believe, strongly, that NPG's takedown notice is faulty, and it's quite possible that it violated 512(f) of the DMCA in that it appears NPG knowingly misrepresented that the works were infringing. In the DMCA notice, NPG claims:

These are unauthorized recordings and are unauthorized synchronizations As such, I have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law. I hereby confirm that I believe the tracks identified in this email infringe my copyright.

However, it is incorrect that the use was not permitted by law. Under both fair use and de minimis use, such a use is clearly permitted by law. Furthermore, as a court found in the Lenz v. Universal Music Group case, the filer of a DMCA takedown needs to take fair use into account before issuing the takedown. Separately, as a bootleg video, this might not even be subject to the DMCA at all.

As per Vine's own limitation, the clip is a mere six seconds long, showing five disjointed clips of a song. If we were to do a four factors test for Teibloom's original use, it seems clear that it is fair use.

The purpose and character of the use:

The showing of brief six second, disjointed clips was clearly just to highlight that Teibloom had attended the SXSW show, and was linked from his review just to highlight the sense of what the show was like. It's clearly not a full use of the song or anything attempting to be a replacement for the song or the concert itself. It was a brief "view" of one attendee's perspective, which is clearly transformative from the original work. As such, it clearly "added value" to the original, since it was showing something different and unique from the original, while providing some perspective on the experience of attending such a show.

The nature of the copyrighted work

This was a recording of a brief bit of a live event, not of the sound recording or anything like that. Again, the point was to capture the live atmosphere and experience. This prong of the fair use test is supposed to be to protect the dissemination of information, and that seems clear from the use.

Also, even the brief bit of music that you hear is a pretty generic soul / funk music riff, rather than something highly unique and identifiable with Prince himself. I'm not even sure that the song being played is a Prince song. It sounds so generic and short it's difficult to identify. As a test, I tried to use Shazam on it, and despite claiming to be able to identify a song with as little as one second of music, it said it could not find a match. If you'd asked me I would have thought it was a just a generic James Brown-style riff rather than anything specific to Prince. Given that, while the performance is potentially covered by a copyright, it's not clear that the song is covered by Prince's copyright.

Hell, just the fact that it's unclear what the song is highlights why this is almost certainly fair use or de mininmis use. One of the characteristics of de mininimis use is if you can distinguish the work. When even the expert automated ears at Shazam can't do that...

The Amount and Substantiality of the Portion Taken

Six disjointed seconds. 'Nuff said.

The Effect of the Use Upon the Potential Market

There is clearly no negative use whatsoever. It is not as if someone will not buy or license a Prince song because this clip was "good enough" as a substitute. There is no rational way to support such a claim.

That said, it is possible that Prince's takedown actions might cause people to no longer want to support his works, but that's his own actions, not this particular video.

That's for Teibloom. As for us reposting the video and discussing it here, our use is even more transformative, as it is now about the discussion on whether or not the video itself is fair use. Without showing the video it is difficult to have a reasonable or competent discussion on whether or not it was fair use.

Either way, we believe that Prince and NPG Records are abusing the DMCA, potentially in violation of 512(f), and using the DMCA to take down perfectly legitimate videos that are allowed under US copyright law.

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YouTube Takes Down Music Video For 'Terms Of Service' Violation; Refuses To Explain Or Put Back

Mike Masnick — Wed, 3 Apr 2013 12:12:00 PDT

Art Neill, from the very cool non-profit group New Media Rights (which provides legal services/advocacy for internet users and creators), alerts us to an unfortunate story involving YouTube pulling down a band's video, claiming terms of service violations, but refusing to explain much more. We've discussed multiple times before that one of Google's Achilles Heels for competitors is its big white monolith problem, in which if you have a problem with Google, reaching an actual human being in customer service is nearly impossible. That seems to be the case with this story.

It involves a comedy group / rock band called Fortress of Attitude. A few months back, they released a video on YouTube for a song they wrote, called PS Gay Car, in response to a homophobic note that someone left on a band member's cars a few years ago. They basically took the note and turned it into the lyrics for a song, mocking the homophobic message. The video got lots of attention, including high traffic places like the Huffington Post and College Humor. The video on YouTube racked up nearly 40,000 views.

And then it was gone. You can still see it on Funny or Die, but YouTube removed it entirely, claiming a terms of service violation. YouTube sent them a note saying that they had violated the terms of service of the site by using "any automated system, including without limitations, "robots," "spiders," or "offline readers," that access the Service in a manner that sends more request messages to the YouTube servers in a given period of time than a human can reasonably produce in the same period by using a conventional online browser."

The folks at Fortress of Attitude insist they did nothing of the sort:

So, note up front: we 100% did not engage in any activity of that sort. First of all, our group policy is that robots are scary and will someday enslave us all, and therefore we do not engage in any activities involving robots—especially activities such as artificially inflating Youtube views.

Secondly it is very clear why the video had gotten its views. Popular websites posted the video, thereby putting it in front of their readerships, and it was spread around. As a group we did nothing more than email the link out to our mailing list, post it on our Facebook pages, and send it to these media outlets. Trying to create artificial views for our work is not something we would do, and it also seems like WAY too much work.

After finding no easy way to actually respond to the claimed violation, nor any way to directly contact anyone at YouTube, they went to New Media Rights who has been trying, repeatedly to contact folks at YouTube, without much luck. The emailed responses don't address any of the points raised by NMR, but rather just appear to be robotic-like responses insisting that the account was found to violate that term and saying that "due to the reasons previously stated, we will not be restoring the content." No matter how many times NMR points out that "the reasons previously stated" are not accurate, they can't seem to get anyone from YouTube to actually communicate as a human about what the problem is.

The band is especially worried since it has a bunch of videos on YouTube and the note from Google threatens to kill their entire account if similar "violations" occur.

To some extent, you can understand why Google does this. I'm sure that there are plenty of people trying to game the system and boost pageviews. And, I'm sure that plenty of them insist that they're innocent. Having full time people responding to a bunch of those folks would probably be a huge waste of time. But what happens when you have a situation where the flag and takedown happened in error?

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Sega Offers Half-Hearted Non-Apology For Massive Youtube Takedown; Promises Not To Do It Again (With Caveats)

Tim Cushing — Mon, 25 Mar 2013 09:48:55 PDT

Remember last December when Sega was priming itself for a PSP Shining Force game and thought the best way to advertise the upcoming release was to take down anything and everything Shining Force-related on Youtube? Good times those, what with the takedowns and strikes against accounts and the hundreds of videos (some of which didn't even contain footage of the game) replaced with the well-known slash-mouthed emoticon and a quick "Sorry about that."

Now that the Shining Force game has been released, it appears that Sega is going to let things return to normal, or at least as normal as things can be after a massive takedown effort. Sega of America's Brand Manager offered the following ~~apology~~ diversionary statement of ~~contrition~~ half-hearted thanks and not-quite-promises.

Hey everyone,

Thank you to all of our fans for waiting while we worked hard to get this issue solved. While SEGA may need to remove videos in rare cases, we’re happy to confirm that there are no further plans to remove Shining Force videos uploaded to Youtube by users living in North American and European territories. Additionally, if you live in these territories and your video was removed, please get in touch with us at communityteam@sega.com so that we can look into it for you.

SEGA believes strongly in our fans and we apologize for any inconvenience. You all are what keep us going – thank you!

"Issue solved?" There was really no issue until the massive takedown effort began. Before that, everything seemed to be running fine. "Solved?" Once again, the issue was Sega's own making. It hardly seems proper that it take credit for "solving" it.

And bully for "no further plans to remove Shining Force videos." That's rather specific, innit? "We have no further plans FOR THIS PARTICULAR TITLE, but we reserve the right to remove other videos of other games, but in rare cases only, mostly because our release schedule isn't quite as packed as it was 15 years ago."

This announcement was conveniently buried on the 28th page of the Sega forum post discussing the video takedowns. Not exactly shouting it from the rooftops, but I suppose whoever's manning the Sega email inbox is probably not in any hurry to be bombarded with demands SoA un-strike their Youtube accounts.

All the damage done by Sega's short-sighted IP March to the Sea isn't going to be undone by a half-hearted non-apology that refers to Sega's own destructive actions as an "issue" to be "solved." Someone needs to inform those further up the chain of command that promoting a new game in an established series generally works better when you don't antagonize fans of the previous games. Not only that, but Sega needs to start seeing these uploaders as useful allies, rather than the only thing standing between it and a successful video game release.

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Indie Film Distributor Spends Half Her Profits Sending DMCA Takedowns, But Is It Worth It?

Tim Cushing — Tue, 19 Mar 2013 11:07:33 PDT

An interesting bit of information was uncovered and pointed out by Baldaur Regis and an AC in the comments of Mike's post detailing the not-so-crafty work of an industry shill who posted three comments as three different people from the same IP address.

The original Wall Street Journal article quoted Kathy Wolfe, a filmmaker and head of Wolfe Video, who said she spent a surprising amount of money battling piracy.

Last year, Kathy Wolfe, who owns a small independent U.S. film-distribution company, Wolfe Video, found more than 903,000 links to unauthorized versions of her films, which she sells around the world for $3.99 per download. She estimates that she lost over $3 million in revenue in 2012 as a result of stolen content from her top 15 titles. On top of that, she spends over $30,000 a year—about half her profit—just to send out takedown notices for her titles.

$30,000 is a lot to spend fighting anything, much less something as nebulous as piracy. The fact that it was "half" of her profits was even more surprising, leading this AC to point out an easy way she could double her money.

Wait. You mean she could double her profit by just doing *nothing* ? That's actually a riot.

While it isn't quite as simple as that, there is some truth to that assertion. This piqued my curiosity. If someone was spending half their profits having links taken down, they must have seen something that justified this expenditure. A business doesn't just throw half their profits in a hole unless that same hole is throwing money back. I assumed there must be a corresponding sales increase, and a noticeable one at that. So I emailed Kathy Wolfe to get some details on her anti-piracy efforts.

I'm Tim Cushing and I write for techdirt.com. I was wondering if you might be able to answer a couple of questions about your ongoing fight against piracy. What really got my attention was the fact that you're spending nearly $30,000/yr. sending takedown notices. (via WSJ and Digital Music News)

While I understand your interest in preventing your films from being distributed in this fashion, I'm having trouble believing that this expense is generating a worthwhile return on investment. I was wondering if you could shed some light on that area.

Are you seeing a positive return in terms of sales increases?

Is it enough of an increase to offset the $30,000/yr. in expenses?

If it ISN'T generating the additional sales needed to justify the expense, what is the rationale for continuing this effort?

Thanks in advance for any information you can provide. I'm looking to put together an article addressing the expense of your anti-piracy efforts, so if there's anything you'd rather withhold (exact sales figures, etc.), I can understand. What I'd really like to hear before I write this post is your take on this very expensive anti-piracy venture, especially any benefits you've seen, financial or otherwise, since you began this pursuit.

Her first response was blunt and anything but informative.

Hi Timothy,

I would be happy to discuss with you. Basically, without the take down effort I would be out of business. I have over 100 films to protect.

Kathy

On one hand, she said she'd be happy to discuss this. On the other hand, the middle sentence sounded like the conclusions had already been drawn and the door three-quarters shut. I sent an email back pressing for more details.

Thanks for responding.

What I'm actually wondering is whether this effort has any correlating effect on sales. I imagine the discussion shifts into "rhetorical" at this point. You're spending $30,000/yr. on this. If you dialed it back and spent $15,000, do you feel sales would drop to half their previous level?

What had you noticed before you decided to pursue these anti-piracy efforts? As you say, without issuing takedowns you would be out of business, so there was obviously a very noticeable sales drop. Did you start with a smaller effort and see no improvement and then decide to scale up? Or did you put as much as you could (financially) into this effort from the beginning?

Again, I'm very curious as to whether there's a noticeable increase in sales. To ditch the takedowns altogether would put you out of business according to you, but would scaling it back reduce your sales? Have you ever scaled back efforts temporarily and observed any increases or decreases in sales?

At this point, Kathy became suspicious and asked me to explain who I was and what I was going to do with the information (pretty much exactly in those words). So, I explained myself again, breaking it down further.

What I'm trying to do is get your perspective on this issue. You obviously feel that spending $30,000/yr. on anti-piracy efforts is a worthwhile investment.I'm assuming you have put together some data over the years that shows that this expenditure is paying off.

I'm putting together an article dealing with anti-piracy efforts. I'd like to have your input before I write this post because I'd actually like to hear your view from the inside. All I can do at the moment is speculate. I've rarely seen anyone come out and quote an exact figure on anti-piracy expenditures, so this potentially makes for a very interesting article. We all hear that major studios spend "millions" fighting piracy, but numbers are rarely provided as to what effect those efforts are having on sales. If anything is provided, it's an equally vague aggregate.

I don't have any interest in tearing down your efforts. You're the rights holder and you're doing what seems best for your business. But as a business owner, I have to believe that you've adjusted this plan over the years in order to see the highest return on your investment -- and those are the numbers I'm interested in.

I'm also curious as to how you arrived at the "$3 million lost" in 2012 via piracy (as quoted in the Digital Music News article about your efforts), but that's of secondary interest.

So, if you think I'm after this information to belittle, demean or otherwise harm you, nothing could be further from the truth. As I said, I'm on the outside and can only speculate on the rationale and sales fluctuations driving this business decision.

Once again, thank you for your time.

That was eleven days ago. I fired off a quick message to bring me back to the top of her inbox, but received no response. That's a shame, because I'd like to believe that, as a business owner, she's weighed the cost of her efforts against the return on that investment. But she seems unwilling to discuss anything other than the amount she pays out ($30,000) and the amount she's "lost" to piracy ($3 million).

First things first, Kathy Wolfe and Wolfe Video has been around for 28 years, long enough to have witnessed large-scale changes in film making and distribution. Staying in this business as an indie filmmaker, who deals almost exclusively with a limited market, is impressive.

Also impressive is the fact that Wolfe Video isn't limiting itself to just a few large outlets. Wolfe is distributing her films through pay-per-view markets such as Comcast, as well as other major internet players such as Netflix, Amazon, Hulu and, just last year, Wolfe Video's own platform, Wolfe On Demand, which allows customers to rent or buy directly from Wolfe. Wolfe on Demand is a worldwide service, allowing these films to reach otherwise underserved audiences around the globe.

Wolfe Video seems to have explored a variety of markets and seems interested in making the most of the web's positive aspects. Now the question turns to the anti-piracy efforts. Does exchanging half your profit for DMCA takedown notices really make sense?

Wolfe feels this is effort is necessary to protect her business, as can be seen in her first reply to my emails. But is this outlay recovered with increased sales? That's a harder question to answer without any data to examine, but there are a few inferences we can draw. Despite her massive anti-piracy expenditures (and wealth of distribution options), her business is suffering.

"It's changed us," Wolfe said, while pointing to drastic company chops and cutbacks. That includes the trimming of 11 employees, a 50 percent reduction in Wolfe's marketing budget, and a major impact on new projects. Wolfe has even stopped paying herself a salary.

There are three possibilities here:

1. $30,000 is what's needed to sustain Wolfe Video at its current pace. Not great, but better than going out of business. This assumes the deterrent efforts generate enough sales to keep Wolfe Video (barely) in the black. If this theory is correct, one would expect $50,000 worth of deterrent to increase income by a comparable amount.

2. $30,000 is not enough, but it's all Wolfe can afford. If so, then Wolfe Video is on the way out. Escalating the amount spent would likely not generate enough revenue to offset the expense, or at best, keep the company barely in the black and decrease profitability.

3. $30,000 isn't showing any noticeable impact, one way or another.

Of the three possibilities, the third seems most likely. This may seem like a broadsided slam against Wolfe's efforts, but she does make a few statements that lead me to believe this effort is mainly "faith-based" and hasn't been measured in terms of correlation to increased sales.

One of the indications is Wolfe's estimate of income lost to piracy. She states Wolfe Video lost nearly $3 million last year because of file sharing. How does she arrive at this number? I can't say for sure, but multiplying 903,000 links by $3.99/movie (Wolfe's quoted price per download) gives us $3,602,970. Perhaps realizing that not every link equates to a lost sale, the number was revised down a bit to the nearest round number. (Only most links equate to lost sales, apparently...)

Another indication is her blunt response to my first inquiry: "Basically, without the take down effort I would be out of business." This sounds like someone who has already decided that piracy can only be fought, and only with a ton of time, effort and money. What this doesn't sound like, however, is someone who's considered taking a more targeted approach, or backing off completely and measuring any corresponding sales fluctuations.

Then there's this quote (from a pro-SOPA editorial Wolfe wrote for the Huffington Post) which describes the futility of her efforts, while simultaneously making the claim that she's "forced" to send out thousands of DMCA notices.

As a distributor, I've been forced to devote resources to searching for and removing pirated copies of our films online (by sending DMCA notices). It is a time-consuming and expensive process. On one recent weekend, we removed over 300 links to a newly released title from a U.S. based cyber locker (each link can represent 1000s of downloads). The next day another 180 new links for the same film appeared on the same cyber locker. We found another 100 links to the film on a gay movie blog (a site which features free download links for more than 2,000 titles). This is just in the U.S., where sites are required under current law to take down links when they receive infringement notices. Multiplying that problem by a factor of 10 would not begin to cover the volume available via offshore sites, which are currently out of the reach of U.S. law.

The implication seems to be that if she doesn't keep emptying this ocean with her $30,000/year teacup, no one (or hardly anyone) will purchase her company's films and support her business. This can't possibly be true. Piracy is an option for nearly everyone connected to the internet, and yet musicians, filmmakers, video game developers, etc. are all selling their output every day.

Removing links may generate a few sales, but certainly not enough to offset an effort of this magnitude. Some file sharers will never purchase anything, and if they can't pirate a Wolfe film, they'll simply find something else to download. Others will purchase something after an illicit "preview." Taking away the link they might have utilized simply sends them looking for other links... or other movies. Generally speaking, a failed search for a "free" movie rarely results in the sale of the same movie.

Wolfe Video is doing the right thing by diversifying its distribution across multiple services and, even better, by running its own in-house digital rental/download platform. These efforts will do more to increase sales (and profits) than $30,000 worth of takedown notices. It's hard not to view illegal downloads as "lost sales," but entertaining that notion results in deterrence efforts that far outweigh the benefits.

The fact is that removing illegal options won't generate sales. Removing a negative ("lost sale via illegal download") doesn't create a positive ("gained[?] sale"). It simply levels off at $0. Positive efforts will tilt that scale back towards the creators. Negative efforts max out at $0, at best.

As I stated in my email to Kathy Wolfe, I have no desire to paint her as someone who tilts at windmills to the tune of $30,000/year. She strongly feels this effort needs to be made in order to protect a business she's run for over 25 years. I can completely understand that. My concern is that this effort is over-funded and a long, hard look should be taken at any connection between the takedown effort and corresponding sales fluctuations.

Could the same be accomplished at half the price? How about $10,000 per year? Or $0? I think some experimentation is called for. Back all enforcement efforts off for a few months and watch for any signs of a sales decline. If the drop is precipitous, scale the efforts up and see if the numbers respond. But rather than intensify the efforts, slowly escalate until you find a balance between deterrence and sales that works out best financially.

Kathy Wolfe has obviously worked hard to keep Wolfe Films running for more than a ~~quarter-decade~~ quarter-century. She deserves a salary and I hate to see that money flowing into an effort that's not paying off.

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UK Lets The Recording Industry Decide What Websites To Censor

Mike Masnick — Thu, 28 Feb 2013 15:05:40 PST

Having already kicked down the internet censorship door by ordering that ISPs block access to The Pirate Bay, the UK's High Court has expanded the list of sites to block based on complaints from BPI about which sites it believes are responsible for piracy. And, so, just like that, those in the UK will find Kickass Torrents, H33T and Fenopy blocked. I don't know anything about these three sites. So, for all I know, they could be horrible, horrible actors in all of this, but even so, having a court order them completely blocked from access based on statements from BPI -- a commercial party who clearly would have a bias against upstart, disruptive competitors -- seems crazy. Again, take a look at the history of the entertainment industry attacking every single new type of distribution technology. And now the UK High Court is allowing them to do this to the level of flat out censoring sites.

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NASCAR Abuses DMCA To Try To Delete Fan Videos Of Daytona Crash

Mike Masnick — Mon, 25 Feb 2013 05:39:14 PST

Joseph M. Durnal was the first of a whole bunch of you to send in a version of this story showing how NASCAR abused copyright to take down some videos. You may have heard that there was a big NASCAR crash at Daytona that sent debris flying into the stands. Well, a video from those same stands, which shows a wheel lying in the seats next to someone injured, was deleted from YouTube via NASCAR claiming copyright on it and issuing a takedown. Obviously, that's a bogus claim, because the copyright would belong to the guy who filmed it.

As the press started calling, NASCAR gave what might seem like a perfectly reasonable response:

The fan video of the wreck on the final lap of today’s NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today’s accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.—Steve Phelps, NASCAR Senior Vice President and Chief Marketing Officer

Sounds great, except it's totally bogus. NASCAR may well be concerned about those injured by the crash, but that does not give them the right to automatically remove someone else's video, nor does it allow them to abuse the DMCA takedown process for that purpose. The DMCA only applies to copyright.

Of course, once again, we're seeing how when our laws make it easy to censor via copyright claims, many people seek to do exactly that. Thankfully, all of the attention on the takedown has resulted in YouTube doing what appears to have been an expedited review, and have put the video back:

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RIAA Still Can't Figure Out How To Use Google's DMCA Tools, Blames Google

Mike Masnick — Wed, 20 Feb 2013 07:42:55 PST

This will hardly comes as a surprise, but the RIAA and other "anti-piracy groups" are still complaining that Google "isn't doing enough" to prop up their old and obsolete business models. The latest complaint? That Google's system only accepts a mere 10,000 DMCA takedowns per day and somehow that's just not enough. It turns out that this isn't actually true, but we'll get to that in a moment. Much of the article focuses on Dutch extremist anti-piracy group BREIN saying that the limit needs to go away. But there is this bizarre statement from the RIAA as well:

“Google has the resources to allow take downs that would more meaningfully address the piracy problem it recognizes, given that it likely indexes hundreds of millions of links per day. Yet this limitation remains despite requests to remove it,” RIAA noted.

In addition to unthrottling the URL limits, RIAA also says it wants to lift the cap on the number of queries they can execute per day to find infringing content.

“Google places artificial limits on the number of queries that can be made by a copyright owner to identify infringements.”

This seems wrong on a variety of levels. As we noted last year when the RIAA raised some of these complaints, part of the problem appears to be that the RIAA doesn't understand how Google's tools work. There are some technical limitations in terms of how many URLs a "trusted partner" using automated means can submit at once, but no actual limit on the number of URLs that can be submitted total. There's a practical reason for the setup: in case an automated system goes haywire, Google wants to be able to catch it. But that's it. It does not limit the searches or the ability to submit DMCAs. We asked Google for specifics, and they confirmed:

While there is no limit on the number of DMCA notices that a copyright owner or reporting organization may send us, we put safety limits on the number of automated submissions that partners can make at one time using our tools in order to protect our systems from technical problems. We increase these limits for partners who have demonstrated a consistent track record of submission quality and volume.

On top of that, there's the issue that takedown notices go through a review process before the takedowns happen, to hopefully weed out abuse. For the RIAA to compare handling of takedown messages to the automated process of searching is really bizarre. It's basically them saying they want to be able to automatically takedown any content with no review whatsoever. That's a massive problem for a variety of obvious reasons. Indexing the web for search is an automated process. Taking sites down requires at least some level of review, even if only cursory. Apparently, the RIAA not only misunderstands the tools available, but also the DMCA process itself.

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Putting Together A Database Of Bogus DMCA Takedowns

Mike Masnick — Thu, 7 Feb 2013 10:36:02 PST

Over the years, we've written many, many stories of completely bogus DMCA takedowns. It's a pretty common occurrence. Sometimes it's done accidentally by clueless bots (or clueless humans). Sometimes it's done maliciously. We just had a case that appeared especially egregious, involving a site copying another sites' articles, then claiming copyright over the originals in order to take down the original stories (which just happened to paint a professor in a very poor light for allegedly faking parts of some high profile research). That story inspired David Weekly (founder of PBWiki, HackerDojo, SuperHappyDevHouse and a few other things) to do something: he set up the site DMCAInjury.com, which is just a simple Google spreadsheet input form at this point, but hopefully can become something much more.

David has pointed out that it would be handy to have some more cases in which the filers of bogus DMCA notices are actually punished for their actions under section 512(f) of the DMCA. As we discussed last year, it's very difficult to win a 512(f) claim, in part because the language is so vague and so far courts have interpreted it pretty narrowly.

However, as David points out, there have been some successful cases, including the case that the EFF ran against Diebold nearly a decade ago. David was actually one of the plaintiffs in that case. If you don't remember, someone had leaked some internal documents from Diebold (makers of e-voting machines) which showed the company was well aware of massive security problems with their machines. Diebold first tried to claim the documents were fake and then used the DMCA to claim they were covered by Diebold's copyright and that it could issue takedowns on them. As you might have noticed, those two claims would contradict each other. Either way, a judge pointed out that:

"no reasonable copyright holder could have believed that portions of the e-mail archive discussing possible technical problems with Diebold's voting machines were protected by copyright."

The problem, of course, is that there just aren't that many such cases (there are a few scattered ones, including the Lenz case we've been talking about recently). So finding such cases, and actually having them go to court could be useful -- though I still think strengthening the ability to punish bogus DMCA notices would be helpful (well, and changing the entire DMCA takedown process, but that's another post for another day). Via email, David admits that this is just a "trial balloon" to see if it turns up any interesting cases of bogus takedowns that might make for good 512(f) cases. And that would be good, though the weaknesses of 512(f) still make it pretty difficult to find ideal cases, even as we see DMCA abuses all the time.

Even with that being the case, if this effort doesn't turn up bogus takedown notices for new cases, at the very least, perhaps it will create a useful dataset to explore the nature and frequency of bogus DMCA takedowns.

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Beyonce Meet Streisand: Publicist Tries To Remove 'Unflattering' Beyonce Photos From The Internet

Mike Masnick — Wed, 6 Feb 2013 10:29:58 PST

Sometimes I wonder what sort of qualification you need to be a "publicist." At the very least, you would think that it would help to be familiar with the basics of The Streisand Effect, and making sure that you don't make something worse. Apparently, that's not the case for the publicist that Beyonce hired to try to get "unflattering" images taken of her at the Super Bowl disappeared. It all started with Buzzfeed doing what Buzzfeed does -- pulling together a silly collection of images. In this case, The 33 Fiercest Moments From Beyonce's Halftime Show. That apparently resulted in a quick phone call from someone working as a publicist complaining that some of those photos were "unflattering," which was then followed up by an email... which Buzzfeed chose to post publicly as: The "Unflattering" Photos Beyonce's Publicist Doesn't Want You To See: If you can't read that, the important part says:

Thanks for taking my call. As discussed, there are some unflattering photos on your current feed that we are respectfully asking you to change. I am certain you will be able to find some better photos.

Now, to their credit, the publicist did not demand that the photos be changed, nor make any kind of legal threat. While that may seem obvious since there would be no legal basis for Beyonce to make such a threat, we've certainly seen others make similar legal threats in the past. So it was a respectful "request." And, you can certainly make the argument that Buzzfeed's response was anything but respectful. But, come on. This is Buzzfeed we're talking about. Pageviews uber alles. So of course they're going to get more attention for it.

The end result? Suddenly lots and lots of sites are talking about it and (of course) highlighting the unflattering photos. Some will argue, of course, that "any publicity is good publicity" and perhaps that was the strategy all along. That's a dubious argument however. Beyonce was getting a ton of great press for her Super Bowl performance. Why sully it with suddenly hunting down "unflattering" images that weren't doing any damage to her reputation in the first place? Asking for those images to be taken down hurts her image a lot more than any of the photos in question.

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Odd: Mega Removing Any File It Can Find That Is Publicly Indexed -- Even Completely Legitimate Uploads

Mike Masnick — Thu, 31 Jan 2013 14:59:00 PST

There has been talk about how various anti-piracy operations have been "testing" Kim Dotcom's Mega in terms of how it responds to takedown notices (so far, it's apparently doing quite well). However, the folks at TorrentFreak noticed something odd. From their tests, it appears that Mega is actually taking down almost anything that shows up via a search engine that was set up to search publicly released "Mega" links. TorrentFreak uploaded some content that has been shared legally, and which is authorized for further sharing -- and all of it went away almost immediately.

To test how quickly a file is removed by Mega we decided to post some previously uploaded legal content to Mega-search.me ourselves. Our uploads included a few Dan Bull songs, a clip from the Pirate Bay documentary TPB-AFK, a video explaining fair use and Kim Dotcom’s single Mr. President.

Quite shockingly, the files were pulled down by Mega in a matter of minutes, claiming they had received copyright infringement notices for each of them.

We are in receipt of a takedown notice affecting the following public link
in your account:

https://mega.co.nz/#!iRQRnLzT

Please be reminded that MEGA respects the copyrights of others and requires that users of the MEGA cloud service comply with the laws of copyright. You are strictly prohibited from using the MEGA cloud service to infringe copyrights. You may not upload, download, store, share, display, stream, distribute, e-mail, link to, transmit or otherwise make available any files, data, or content that infringes any copyright or other proprietary rights of any person or entity.

Furthermore, please be reminded that, pursuant to our Terms of Service, accounts found to be repeat infringers are subject to termination.

It's possible that someone is sending takedowns on all content it can find, or it's possible that Mega itself is taking down all such content -- and then flat out lying about receiving a takedown notice. Unfortunately, it also does not appear that Mega has any sort of appeals process, or the ability (as per the DMCA) to file a counternotice. While Mega is not a US company, and not subject to the DMCA, it seems only reasonable that it at least have a counternotice process.

Yes, given the legal mess that Kim Dotcom and his partners are in over their previous company, Megaupload, you can certainly understand why they might default to an extreme position of "take down everything that is publicly searched," but that still seems ridiculous. There is plenty of content out there that is legally shareable, and if Mega does not want to allow public sharing at all, even of legal content, it should make that explicit. Alternatively, if someone is issuing bogus takedowns, Mega should have a process for dealing with that. Finally, it seems that Mega is in desperate need of an appeals process or counternotification system.

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Russian Ministry Of Culture Publishes Draft Anti-Piracy Law; Requires Takedowns Within 24 Hours

Glyn Moody — Thu, 31 Jan 2013 03:40:40 PST

Presumably as part of the overall agreement for Russia to be allowed to join the WTO, the Ministry of Culture there has published a draft of its anti-piracy law (via @PostActa). Here's the google translation of a story on the roem.ru site: The Ministry of Culture has published the text of the draft law "On amendments to some legislative acts of the Russian Federation in order to stop the violations of intellectual property rights in the information and telecommunications networks, including the" Internet "," designed to combat Internet piracy - the amendments proposed to the Federal Law "On Information, Information Technologies and Protection of Information" and the Code of Administrative Offences.

According to the text of amendments, site owners and hosting providers will have to remove content that violates the copyright, or block access to it within a day after treatment the original.
As can be seen, the key element is a 24-hour takedown requirement. There's a range of fines for non-compliance, increasing rapidly according to the size of the business involved. What's not clear is how "violations" are to be established or how access is to be blocked if sites are outside Russia. The rapid take-down requirement would imply this is the usual "guilty until proven innocent" approach. That's also suggested by the following comments from leading Russian Internet companies, who are plainly unhappy with the proposal: Representatives of Internet companies (Yandex and Mail.Ru) responded with disapproval of the draft law in the comments to "Kommersant". The head of the legal service of Anton Malginova Mail.ru Group, the project was prepared without the involvement of industry experts, and existing legislation fully protects the rights holders.
This indicates that the draft law was drawn up without any input from people who actually understand the Internet. Given that extraordinary fact, it seems unlikely that groups representing the public were asked, either. We'll have to wait for more details to emerge to see how exactly things will work in practice, but it certainly looks like Russia is adopting the worst ideas from the West in its headlong rush to "respectability".

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Court Says Trial Needed To Determine If Universal Music Violated DMCA With Dancing Baby Takedown

Mike Masnick — Fri, 25 Jan 2013 02:00:56 PST

We've covered the Stephanie Lenz / dancing baby / fair use case for years -- but now it looks like there's finally going to be a trial to consider if Universal Music can be punished for sending a DMCA takedown notice on a video of Lenz's infant son dancing to 29 seconds of a song by Prince, which Lenz asserts was clearly fair use. If you haven't followed the case, it's been argued back and forth for years. At one point, the court ruled that a copyright holder does need to take fair use into account before sending a DMCA takedown, but that there needs to be "subjective bad faith" by Universal Music in sending the takedown. In other words, Lenz (and the EFF, who is representing her) needs to show, effectively, that Universal knew that it was sending bogus takedowns. The EFF has argued that willful blindness by Universal meant that it had knowledge (amusingly, using precedents in copyright cases in the other direction, where copyright holders argue that willful blindness can be infringement).

There are a few other issues being fought over -- including Universal Music's contention that the DMCA doesn't apply at all here (both because it insists it wasn't really sending a DMCA takedown, even as YouTube required a DMCA takedown, and because it's arguing that YouTube itself doesn't qualify for the DMCA because it helps process videos -- an argument courts have rejected repeatedly). However, Universal also sought summary judgment on the fair use issue in the other direction, arguing that it is clear that Universal did not have "subjective bad faith" in issuing the takedown, since it believed the takedown to be legit (and still does...). The judge has rejected both arguments for summary judgment, saying that there are disputed facts that need to have a full trial -- in part because Lenz failed to show any evidence that Universal had reason to believe that there was a high probability that some of the videos it was taking down would be covered by fair use. This point is necessary if Lenz is going to demonstrate willful blindness.

Lenz does not present evidence suggesting that Universal subjectively believed either that there was a high probability that any given video might make fair use of a Prince composition or that her video in particular made fair use of Prince's song "Let's Go Crazy." Lenz argues that her video was "self-evident" fair use and that Universal must have known it constituted fair use when it sent the Takedown Notice. However, as the Ninth Circuit recently has observed, the process of making a fair use determination "is neither a mechanistic exercise nor a gestalt undertaking, but a considered legal judgment." .... A legal conclusion that fair use was "self-evident" necessarily would rest upon an objective measure rather than the subjective standard required by Rossi. Indeed, Universal presents evidence that Lenz herself initially did not view her claim as involving fair use....

Accordingly, the Court concludes that Lenz is not entitled to summary judgment based on the theory that Universal willfully blinded itself to the possibility that her video constituted fair use of Prince's song. Nor is Universal entitled to summary judgment, as it has not shown that it lacked a subjective belief that there was a high probability that any given video might make fair use of a Prince composition. Lenz is free to argue that a reasonable actor in Universal's position would have understood that fair use was "self-evident," and that this circumstance is evidence of Universal's alleged willful blindness. Universal likewise is free to argue that whatever the alleged shortcomings of its review process might have been, it did not act with the subjective intent required by §512(f).

In other words, this case, which has gone on for years, is going to continue for even more time as a full trial is about to happen.

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GEMA Takes Kim Dotcom's Mega Launch Party Video Down, Despite All Songs Being Cleared

Mike Masnick — Thu, 24 Jan 2013 14:45:13 PST

GEMA and MEGA may have the same letters arranged differently, but you have to imagine that the hardline copyright maximalists at GEMA aren't at all pleased by Kim Dotcom's new Mega outfit, even if it's really not all that different than tons of other online cloud storage platforms. Still, it is a bit odd to see that GEMA had Mega's launch video removed from YouTube. There was music in the video, but as Dotcom notes, it was either his own music, or music by musicians who all gave permission to use it. My guess is that it may have more to do with the ongoing dispute between GEMA and YouTube, which means that any video with GEMA content is blocked in Germany. However, Dotcom filed a dispute, and notes that he plans to have his lawyers discuss the matter with GEMA.

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Martin Luther King's 'I Have A Dream' Video Taken Down On Internet Freedom Day

Mike Masnick — Fri, 18 Jan 2013 11:37:33 PST

We've been talking a lot today about Internet Freedom Day, and the anniversary of the SOPA/PIPA blackout. The folks at Fight for the Future noticed the proximity of Internet Freedom Day to Martin Luther King Jr. Day, and decided an interesting form of celebrating internet freedom would be to share a video of MLK's famous "I have a dream..." speech. As you may or may not know, Martin Luther King Jr.'s heirs have been ridiculously aggressive in claiming copyright over every aspect of anything related to MLK -- and they seek large sums of money from people for doing things like quoting him. When the MLK Memorial was recently built in Washington DC, the family was able to get nearly $800,000 just to use his words and likeness.

The FftF video was not just the MLK video, but contained some additional explanation of how expanding copyright laws could impact people for doing something as simple as sharing the MLK video -- and then it included some of the speech. So I guess it should come as little surprise that the "I have a dream..." video that FftF was urging people to share has already been taken down (it's unclear if the takedown was due to a notice or Vimeo being proactive). It seems fairly ridiculous that on Internet Freedom Day, and just before MLK Day, we're still dealing with takedowns on such powerful words.

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Popular GameStick Project Briefly Deleted From Kickstarter Over DMCA Takedown

Mike Masnick — Fri, 11 Jan 2013 11:52:14 PST

A few months ago, we criticized Kickstarter for the way it handled DMCA notices -- basically just deleting the project entirely, without providing any additional info. There didn't appear to be a counternotice proposal or anything like that. That post actually resulted in a nice conversation with Kickstarter about ways in which they might improve their DMCA process. I'm happy to see that with another high profile DMCA takedown sent to the site, the situation has been handled somewhat better, though I still have some questions about it.

The takedown involved the Gamestick project, an Android-based video game console the size of a USB stick, built into a controller. It's a really cool project, which you can check out here. Not surprisingly, it has received tons of attention, buzz and (of course) donations. But, yesterday, for a brief time, the campaign disappeared for a period of time due to a DMCA takedown. Unlike in the past, the message on the missing page at least contained a little more info: Furthermore, Kickstarter also sent a notice to all backers of the project:

This is a message from Kickstarter Support. We’re writing to inform you that a project you backed, GameStick: The Most Portable TV Games Console Ever Created, is the subject of an intellectual property dispute.

The law requires that we remove the project from public view until the process is complete or the dispute is resolved. If we are not able to re-post it within 30 days, we will cancel the project, all pledge authorizations will expire, and the project will be permanently unavailable.

If you’d like to manage your pledge, you can do so through the project page:

http://www.kickstarter.com/projects/…ever?ref=email

If you have any questions, we encourage you to message the creator directly. You can also do this from the project page.

Thanks so much for your patience and cooperation,
Kickstarter

The campaign was turned back on after a little while, and the full story came out. Apparently, one of the video games that the company shows working in the video was not "cleared" for use by its creators, and they sent the takedown. Playjam edited the video in the question and Kickstarter quickly put the video back up.

All's well that end's well, though there are still a few oddities here. First off, Kickstarter's notice (while better than no notice!) isn't really accurate. The law does not require Kickstarter to remove the project from view. It does provide incentives for Kickstarter to do so, but that's not the same thing. Of course, Kickstarter has the right to remove whatever project it wants, and no one expects them to have to make a full call on each takedown notice, but it's simply not accurate to say they're required to do so. It's just that they risk losing safe harbors if they don't.

The other oddity: the copyright claim itself. I can't see how the video itself or anything on the campaign page would be infringing. Misleading? Perhaps, if it implied that the specific game would be on the device that wasn't fully licensed. But that's not a copyright issue. The video itself might be evidence that PlayJam itself was infringing on the nameless video game company's copyright with its use of the game. Perhaps there's an argument that whatever was seen of the game in the video would be a copyright issue, but that seems like a huge stretch. There would be strong de minimis or fair use responses in both cases. Also, unless there are significant additional circumstances, it seems odd that the video game company didn't embrace this as a way to get free publicity from a very popular Kickstarter project. So it still strikes me that the Kickstarter page and the video itself should not have been seen as infringing. That they might have been misleading is reason enough to change it, but it's unfortunate when people automatically assume that situations like this must be a copyright violation.

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Lionsgate Censors Remix Video That The Copyright Office Itself Used As An Example Of Fair Use

Jonathan McIntosh — Thu, 10 Jan 2013 05:18:55 PST

It has been three and a half years since I first uploaded my remix video “Buffy vs Edward: Twilight Remixed” to YouTube. The work is an example of fair use transformative storytelling which serves as a visual critique of gender roles and representations in modern pop culture vampire media.

Since I published the remix in 2009 it has been viewed over 3 million times on YouTube and fans have translated the subtitles into 30 different languages. It has been featured and written about by the LA Times, Boston Globe, Salon, Slate, Wired, Vanity Fair, Entertainment Weekly and discussed on NPR radio. It was nominated for a 2010 Webby Award in the best remix/mashup category. The video is used in law school programs, media studies courses and gender studies curricula across the country. The remix also ignited countless online debates over the troubling ways stalking-type behavior is often framed as deeply romantic in movie and television narratives.

This past summer, together with the Electronic Frontier Foundation, I even screened the remix for the US Copyright Office at the 2012 hearings on exemptions to the DMCA. Afterward my Buffy vs Edward remix was mentioned by name in the official recommendations by the US Copyright Office (pdf) on exemptions to the DMCA as an example of a transformative noncommercial video work.

"Based on the video evidence presented, the Register is able to conclude that diminished quality likely would impair the criticism and comment contained in noncommercial videos. For example, the Register is able to perceive that Buffy vs Edward and other noncommercial videos would suffer significantly because of blurring and the loss of detail in characters’ expression and sense of depth."

-Recommendation of the Register of Copyrights, October 2012 (Page 133)

Despite the clear and rather unambiguous fair use argument that exists for the video, Lionsgate Entertainment has now abused YouTube's system and filed a DMCA takedown and had my remix deleted for "copyright infringement." Below is a brief chronicle of my struggle to get Buffy vs Edward back on YouTube where it belongs.

On October 9th 2012 I received a message from YouTube stating that Buffy vs Edward had "matched third party content" owned or licensed by Lionsgate and "ads may appear next to it." Lionsgate acquired ownership of the Twilight movie franchise in 2012 (via the purchase of Summit Entertainment for 412 million dollars) so the claim appeared to be directed at the 1 minute 48 seconds of footage I quoted from the first Twilight movie in my 6 minute remix.

I always turn all ads off on my remix videos and never profit off them. But sure enough when I checked my channel, Lionsgate was monetizing my noncommercial fair use remix with ads for Nordstrom fall fashions which popped up over top of my gender critique of pop culture vampires. Incidentally this copyright claim also prevented the remix from playing on all iOS devices like iPads and iPhones because they are not ”monetized platforms“.

I thought perhaps YouTube’s Content ID System had automatically tagged the video and didn’t understand that it was a fair use. In the hopes I could get the mistake cleared up I immediately used YouTube’s built-in process to register a fair use dispute.

Less then 24 hours later however I received another message from YouTube informing me that Lionsgate had reviewed my fair use claim and rejected it, reinstating their claim on the remix and again monetizing the video with intrusive popup ads.

Concerned at what appeared to be a blatant disregard for fair use provisions, I contacted a lawyer at New Media Rights named Art Neill. New Media Rights drafted a rather detailed 1000 word legal argument citing case law and explaining how Buffy vs Edward was in fact about as clear of an example of fair use as exists. This included fair use arguments for the nature and purpose of the transformative use, amount used and market effect. YouTube's built-in system now allows for a second round of copyright disputes, called an appeal process. So I returned to YouTube and filed an official appeal of the reinstated bogus copyright claim by Lionsgate using the fair use argument and legal language from my lawyer. (See the full text of the fair use argument we made here.)

On November 26th 2012, after a month of waiting, I finally got a response stating that Lionsgate had decided to release their copyright claim on my remix. Victory!

Or so I thought.

That same day I noticed another notification from YouTube saying that my Buffy vs Edward remix had "matched third party content" owned or licensed by Lionsgate and that ads may appear on my video. Wait what? Deja-vu. Hadn't I just spent nearly 2 months dealing with exactly that? On closer inspection this new claim was for "visual content" owned by Lionsgate and the claim I had just fought and finally won had been for "audiovisual" content. No further information was provided as to what the difference was between the two claims or what content exactly was supposedly infringing.

It appeared as though Lionsgate just filed two separate infringement claims on the same piece of media.   Confused and slightly frustrated I once again embarked on repeating the same dispute process as before. I filed my fair use dispute via YouTube’s built-in form exactly as I had the first time around.

Again, just like the first time, it was rejected by Lionsgate within 24 hours and they reinstated their claim on the remix.

So again I filed my second long-form appeal using YouTube’s system, again making the detailed legal arguments crafted by my lawyer at New Media Rights which again lay out very clearly all the fair use arguments. And again, I waited for a response.

On December 18th I received notification from YouTube that Lionsgate had again ignored my fair use arguments, rejected my appeal and this time had the remix deleted from YouTube entirely.

I was dumbfounded. And to add insult to injury I was now locked out of my YouTube account and had a copyright infringement “strike” placed on my channel.

In order to regain access to my account I was also forced to attend YouTube’s insulting “copyright school” and take a test on fair use. Since I’ve been giving lectures on fair use doctrine for artists and video makers for a number of years this was a breeze, but still insulting because my video was not infringing in the first place.

Once I was allowed back into my account I found that YouTube is now penalizing me for this “strike” by preventing me from uploading videos longer than 15 minutes.

I consulted my lawyer again, and following the advice on YouTube’s copyright FAQ page, he reached out to the representatives of Lionsgate who administer their online content and had issued the DMCA takedown. What he found out from that correspondence was worrying.

Representatives of Lionsgate, a company called MovieClips that claims to manage Lionsgate’s clips on Youtube, confirmed in an email to New Media Rights that they had filed a DMCA takedown on Buffy vs Edward because I did not want them to monetize the remix. In fact this is exactly what the company’s representative, Matty Van Schoor, said in a response email to New Media Rights on December 20, 2012.

“The audio/visual content of this video has been reviewed by our team as well as the YouTube content ID system and it has been determined that the video utilizes copyrighted works belonging to Lionsgate. Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.”

No other option? How about recognizing it is fair use and dropping the complaint? They did not answer or even acknowledge our fair use arguments via email, despite fair use being raised multiple times.   Perhaps this is just the action of a rogue studio, but it hints at a bit of a nightmare scenario for transformative media makers and remix artists. The fear is that fair use will be ignored in favor of a monetizing model in which media corporations will “allow” critical, educational and/or transformative works only if they can retain effective ownership and directly profit off them.

It appears that Lionsgate is attempting to do just that. What if every time The Daily Show made fun of a Fox News clip, News Corp. was allowed to claim ownership over the entire Daily Show episode in order to monetize it?

There are limitations on takedowns. For instance, as Neill from New Media Rights points out, the DMCA Section 512 prohibits knowingly, materially misrepresenting any information in takedown notices. At least one court, the case of the baby dancing to Prince in the Lenz case, has even required that DMCA takedown notice senders consider fair use before sending a takedown.

Buffy vs Edward has now been offline for 3 weeks. Over the past year, before the takedown, the remix had been viewed an average of 34,000 times per month.

Since none of YouTube’s internal systems were able to prevent this abuse by Lionsgate, and our direct outreach to the content owner hit a brick wall, with the help of New Media Rights I have now filed an official DMCA counter-notification with YouTube. Lionsgate has 14 days to either allow the remix back online or sue me. We will see what happens.

This is what a broken copyright enforcement system looks like.

One last note, New Media Rights has offered me invaluable advice and guidance throughout this battle. They are a small, non-profit two lawyer operation on a shoe-string budget fighting to make sure artists like me are heard. So if you can please consider donating to them here.

PS: Until we can get the takedown reversed, you can still watch the HTML5 popup video version of Buffy vs Edward here.

Reposted with permission from RebelliousPixels.com

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MPAA: Millions Of DMCA Takedowns Proves That Google Needs To Stop Piracy

Mike Masnick — Mon, 17 Dec 2012 10:39:01 PST

The delusions of the MPAA are really impressive sometimes. For years, they've been pushing to make search engines like Google liable for blocking sites they don't like. That was a key provision in SOPA -- that it would force "information location services" to disappear links to sites deemed "dedicated" to infringement. Of course, as we've noted, it was only after SOPA failed that Hollywood finally started using the tools already available to it to ask Google to remove links to infringing works. At the same time, we noted that the fact that Google is now processing an astounding 2.5 million DMCA takedown notices a week suggests that something is really, really broken. We meant copyright law itself -- but our good friends at the MPAA went in the other direction, and suggested it showed how Google needs to do more, and how artists are overly burdened by the DMCA:

There is a staggering amount of copyright infringement taking place every day online and much of it is facilitated by Google, as their own data shows. According to Google, they receive 2.5 million takedown requests per week – and that data does not even include YouTube, where an enormous amount of infringement takes place. That means that by Google’s own accounting, millions of times each week creators are forced to raise a complaint with Google that the company is facilitating the theft of their work and ask that the infringing work or the link to that work be removed. Often, even when the links are removed, they pop right back up a few hours later. That’s not a reasonable -- or sustainable -- system for anyone....

We couldn’t agree more with Google that this data shows that our current system is not working – for creators, or for Google. But we can’t lose sight of the fact that it also confirms the important role that Google has to play in helping curb the theft of creative works while protecting an Internet that works for everyone. We look forward to continuing to work with them to tackle this urgent challenge.

Now, I agree that it's difficult for copyright holders (often not the actual creators, as the MPAA falsely implies) to have to monitor and track all of this stuff. That's a big burden. But... the MPAA ridiculously implies that there are only two options here: (1) "Creators" keep filing DMCA takedowns or (2) Google has to do more. That ignores reality in multiple ways. First off, the staggering number of bogus takedowns highlights the key point that we've made all along, which is that the only party who actually knows if a work is infringing is the copyright holder -- and even then, they often seem to get confused. Somehow thinking that a third party with no direct knowledge can somehow do more or should be more responsible is a little silly.

But the bigger issue is that this assumes -- as the MPAA always seems to assume -- that the only response to infringement is "more enforcement." What it seems to refuse to consider is that there's another path: it's the path in which the MPAA studios stop focusing so much on beating everyone with a stick, and start fixing the broken parts of their business model. Time and time again the evidence shows that if you offer people what they want, at a reasonable price, and with convenience, they pay -- and the "problem" of copyright infringement shrinks to being minimal (or, in some cases, it actually helps you). So, a rational individual or organization would look at the scale of the "problem" that the MPAA is talking about, along with all of the historical data on how little enforcement does to get people to actually buy -- and realize that perhaps that strategy is a mistake. Even the MPAA admits in this very post that the works often pop back up online.

Maybe -- just maybe -- the problem isn't search engines not doing enough, but rather the strategy that focuses on the stick of enforcement, rather than the carrot of providing consumers more of what they want. I recognize it's a crazy idea, especially at the MPAA -- where they have a whole freaking division of "content protection" VPs who need to justify their giant salaries, rather than a division for helping filmmakers embrace useful business models -- but it seems like a more productive path forward.

Oh, and one other thing. Could the MPAA stop with its bullshit claims that enforcing copyright couldn't possibly have an impact on free speech? This blog post has this in it:

One thing that’s important to make clear in any serious discussion about tackling online theft: absolutely no one is advocating for the restriction of speech on the Internet. Freedom of expression is a cornerstone of the Internet, and a cornerstone of the film community, which has spent the last century advocating for artists to be able to express themselves freely on the screen. Removing infringing works online isn’t limiting access to information or ideas, it's ensuring that the creativity and hard work that went into making a film is encouraged to flourish.

If the only thing taken down due to copyright claims was "infringing works," they'd have a point. But it's not. Copyright claims are used all the time to censor or take down sites or content that people just don't like. That's the concern. The massive expansion of copyright law and broad tools like the DMCA's notice-and-takedown lead to massive amounts of collateral damage that -- absolutely and without question -- infringe on free speech rights. Until the MPAA is willing to acknowledge that simple fact, it's difficult to take the organization seriously.

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