Facebook Fails At The DMCA: Promises To Restore Counter-Noticed Content, But Doesn't [Updated]
from the ah,-censorship dept
We recently wrote about how an ad firm connected to a movie had misused the DMCA to takedown material off a Facebook fan page for the movie Let Me In, specifically claiming that they were doing so because they didn’t want too many fans to use that page, rather than the official movie page. Of course, that’s not what the DMCA is for. The person who ran the fan page filed a detailed DMCA counternotice, and received the following email from Facebook in response:
We have received your counter-notification. We will replace or cease disabling access to the content at issue between 10 and 14 business days from now unless we receive notice that the complainant has filed legal action against you relating to such content.
This is part of how the DMCA works. If the user files a counternotice, and if the copyright holder does not file a lawsuit within 10 to 14 business days, the service provider can put the works back up. Now, some say that service providers are required to restore the material, while the text of the statute is a bit more ambiguous. In theory, a service provider could opt not to restore the materials for other reasons. However, in this case, none of that matters, as Facebook appears to have promised that it would “replace or cease disabling access” within 10 to 14 business days.
The group’s operator notifies me that the counternotice was sent on September 10th. If my calendar math is correct, it should have put the material back on the 30th… and yet, as of today, the content is still disabled, and the group’s owner does not know why. No legal action has been filed, and Facebook promised to restore the content, but it has not. Once again, we get an example of how the DMCA’s takedown provision is an unconstitutional violation of the First Amendment. A federal law was used to silence speech, and despite following the process to restore the speech and being promised that the speech would be restored, it has not been.
Update: Facebook has responded in the comments, apologized and put the material back. Nice to see. Here was the message:
Thanks for bringing this to our attention. We take the content people post to Facebook seriously. Unfortunately, in this case, we made a mistake and the DMCA counter-notice we received was not processed in the normal course of operations. We will no longer disable access to the material at issue. We encourage the group administrator to re-post the content as they wish. We’re sorry for any inconvenience.