Computers Don't Have Good Faith Beliefs

from the fun-with-takedowns dept

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

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

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

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

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Comments on “Computers Don't Have Good Faith Beliefs”

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some old guy (user link) says:

It's my opinion

It’s my opinion that they reason they use ONLY computers to do it is so they can maintain plausible deniability. And yes, that is atrocious behavior and an abuse of the law.

Again, just my opinion. I am sure others will be quick to point out that its just far cheaper and easier to not pay any attention, but the way they (**AA) loves to waste money, I highly doubt they give a rats ass about efficiency in any regard.

Jake says:

I suppose you could argue that the company utilising the automated script, doubtless supplied by Highly Paid Consultants whose buzzword-compliance was beyond reproach, had a good-faith belief in its 100% infallibility; for better or worse, complete fuckwits are as entitled to protection under the law just like the rest of us.

Clueby4 says:


Couldn’t the DMCA notice receiver just setup a scripted Counter Notification process. And be protected by the same dubious interpretations of “knowing” and “good faith”.

And since most corporations are collectively evil with regard bias opinions to opt-ins, the receiver can just push the blame down the line that all users are defaulted to auto-counter-notify unless the opt out.

Frankly this good faith and knowing is crap, why can’t criminals used the obvious loop-hole with the same level obtuse acceptance. I mean no one would reasonably accept if a defendant stated “Sorry,I had know idea that shooting a gun would have resulted in anyone’s injury” It just astounds me that courts can accept that anyone that submits an invalid DMCA notification isn’t knowingly doing so, it’s BS.

Shaun Wilson says:

The do knowingly send false takedowns

Unless the believe that their script is 100% accurate then they know that some of the takedowns sent were inaccurate. This means they know they sent false takedowns. The fact that they don’t know which ones were false doesn’t change the fact that they know they are sending false takedowns.

Nathan Smith says:

An interesting court case waiting to happen

I am not a lawyer, but if I were one and I was involved with a case where someone was fighting an automatically generated DMCA takedown notice, I would probably:

A) subpoena the process/algorithm that was used to generate the takedown
B) Attempt to find classes of target documents (e.g. YouTube videos) that would register false positives (fair use, satire, mashups, etc.)
C) Argue that because the process/algorithm includes these identifiable false positive classes, that the the entire process/algorithm represents a bad faith action.

The process may be “automatic” but it was designed by humans.

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