Copyright Gets In The Way Of Chef Andres' 'Recipes For The People'; Because The DMCA Takedown System Is Still Broken

from the copyright-not-for-the-people dept

On Tuesday evening, famed chef (and all around wonderful human being) José Andrés tweeted about how Twitter had taken down his videos “without really a detailed explanation of why or whom.”

As he notes, “I’m guilty before a judge will rule…” Of course, while his anger was pointed at Twitter, the real problem is not Twitter, but rather the DMCA’s Section 512, whose entire design is that you are guilty before any judge will rule. This is why we’ve been pointing out that the notice-and-takedown process of the DMCA seems to raise serious 1st Amendment issues. It’s very much guilty until proven innocent, by design, with censorship built in (and yes, I mean censorship because it’s compelled by the state).

What’s really stunning, of course, is that this is happening at the same time when the Copyright Office is claiming that we should make this problem much, much worse by giving people and companies more power to censor and force content down prior to any judicial review. And, of course, you have willing elected officials trying to make this happen.

The details of the Chef Andrés’ story are instructive of just how problematic the notice-and-takedown system is, and has been. He’s been creating a bunch of amazing videos under the #RecipesForThePeople hashtag, where he and his daughters cook up simple meals that anyone can prepare at home during lockdown. You should watch them. They’re a joy to watch. In each one, beyond cooking a relatively simple meal, he does it to music (often dancing and/or singing along while cooking). As he explains, the music all comes from musicians he knows — such as Lin Manuel Miranda — who gave him permission to do so:

There are a bunch more, but they’re really a joy to watch. And while Lin Manuel Miranda gave his permission, that doesn’t much matter in reality, because the entire DMCA 512 notice-and-takedown system is based on the idea that you just keep on sending takedowns. And even if permission has been granted, why that’s just too difficult to continue to track. So the takedowns still get sent, and Twitter is pressured into taking it down, or it could face massive liability for copyright infringement’s statutory damages.

While this story might just seem like a “mistake” it’s actually illustrative for a variety of important debates we’re having — both the debate about making the DMCA even worse and the Section 230 debates. We pointed out that the Copyright Office (and people in Congress talking about 512 reform) have so far mostly ignored false takedown notices. But they happen every damn day. We hear about ones like this one, because it happened to someone who is pretty famous and so it makes news. But if it happened to someone less well known — they might just be out of luck.

And it also impacts the Section 230 debates, because so much of the reform ideas put forth would effectively turn other issues into a similar DMCA style “notice-and-takedown.” Indeed, that’s part of the DOJ’s proposal to create a “knowledge” standard that would require sites to remove content. Under such a regime, again, you have a system like this one, in which once a platform is notified, assuming it cannot tell whether or not the content is legit or licensed or whatnot, it has every incentive to just pull it down — “before a judge will rule…”

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Comments on “Copyright Gets In The Way Of Chef Andres' 'Recipes For The People'; Because The DMCA Takedown System Is Still Broken”

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David says:

Re: Re: Re:

Well, how about making it a choice? You can use Twitter but forfeit the right to vote in an election. Unless you get about 50% of fact-based questions answered right?

I know, I am dreaming. The problem is that a democracy does not work when people don’t know what they are talking, and more poignantly voting about.

So it is the highest duty of any politician in a society governed by democratic procedures to make sure everyone is as well educated about all known facts as possible, and then promote one’s own ideas about what actions best to pursue in recognition of those facts.

The U.S. as well as its political system has become a total failure in that respect. Politics are no longer about convincing people what plan would be best for dealing with facts known through wide dissemination, but rather about convincing people about falsehoods and making sure as few facts as possible are established for the sake of decision-making.

Voters are not asked to choose between strategies any more, they are asked to choose between realities. That’s really, really sick.

David says:

Re: Re: Re:2 Re:

But what the blue blazing fuck does any of that have to do with the article in general or my comment in particular?

"Besides, the larger issue lies not with the service you’re using, but the culture created by its users (and admins)."

The filter bubbles of social media support the creation and maintenance of separate realities.

Anonymous Coward says:

Re: Re: Re: Re:

The idea that one is allowed to waive or forfeit their inalienable rights before the fact is ridiculous. I can understand the contractual promises to not sue if something goes wrong, but that is a bit different than giving up one’s right to vote.

No – I am not prepared to give up any rights and certainly not for something silly like twitter.

Politics has always been about bullshit, all those words and virtually no action. Every decade or so there is a huge movement among the populace which actually results in change. The change is a bunch of words on paper that mean something to many but means nothing to those who enforce the law. Rinse, repeat.

Voters are asked to pick a cult of personality. It would make more sense to me if we voted on the issues, I must be crazy!

This comment has been deemed insightful by the community.
Anonymous Anonymous Coward (profile) says:

Re: Time to shut down Twitter

Twitter isn’t the problem as all platforms are saddled with the same issue. That platforms don’t have better transparency in these matters, or a better method to refute such claims is another story. They can, and they should, even if it requires more work.

The issue is, in reality, the ‘notice-and-takedown’ part where the accused if found guilty without any kind of third party review (like a court as at this time no other entity has the power). This is the part that deserves a critical 1st Amendment challenge, but there are at least two problems with that. First we need someone with standing AND the financial resources to back up their argument to make a commitment (which could take years and big bucks). Second we need courts to recognize what is actually happening (i.e. take judicial notice of 512 requests that are not in fact in good faith or even truthful) and do something about it. The part of 512 that addresses this issue is woefully inadequate and not even followed up on when it is appropriate.

This comment has been deemed insightful by the community.
Mike Masnick (profile) says:

Re: Time to shut down Twitter

Is it time to shut down Twitter or at least move to another platform?

I am confused as to how this is a Twitter problem? This is a copyright problem. Any other platform would (and does) face the same issues.

Between these copyright issues, the rants and threats from Trump, the trolls attacking female and African-American celebrities (and people in general), and general disinformation by bots, what good is coming out of Twitter?

Lots and lots of amazing stuff comes out of twitter. I get way more value out of it than just about any other site.

Koby (profile) says:

Re: Re: Time to shut down Twitter

I am confused as to how this is a Twitter problem? This is a copyright problem. Any other platform would (and does) face the same issues.

Two thoughts:

1.) As a system becomes larger, more automation is needed. What if smaller companies were to use human reviews, who could provide an actual explanation of what happened, instead of a useless automated form page?

2.) If there wasn’t so much of a monopoly, perhaps a platform that gets a reputation for unwarranted takedowns would lose customers. A platform that
a fights on behalf of its users, sees bogus takedown, leaves the content up, and fires off a nastrygram to the copyright troll might earn a lot of community goodwill. Other platforms might then be required to follow suit.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re: Re: Re:

A platform that fights on behalf of its users, sees bogus takedown, leaves the content up, and fires off a nastrygram to the copyright troll might earn a lot of community goodwill.

It’ll also face legal liability for that content. The DMCA requires a service provider to disable access to the contested content once it receives a takedown notification. Only by doing so can the service provider keep their “safe harbor” protections.

A company like Twitter or YouTube can afford to fight a bogus takedown by leaving the content up. They have high-priced lawyers and lots of money. The average admin of a Mastodon instance, on the other hand, doesn’t have those same resources.

This comment has been deemed insightful by the community.
Anonymous Coward says:

Re: Re: Re: Time to shut down Twitter

The Problem is not Twitter, it is the law and its abuse by in other people. A company cannot adjudicate the legality of any claim that it receives, unless it is prepared to risk statutory damage for any mistake it makes in not taking down material. The only reasonable action is to take down the disputed material, as the law requires.

Anonymous Coward says:

Re: Re: Re: Time to shut down Twitter

What if smaller companies were to use human reviews, who could provide an actual explanation of what happened, instead of a useless automated form page?

Either the total amount of content goes down, or the total amount of content is the same. If the total amount of content is the same, then human moderation is not feasible regardless of how many companies there are. If the total amount of content is drastically reduced, then human moderation is feasible regardless of how many companies there are. Either way, you have not gained anything in terms of "ease of human (or automated) moderation" by increasing the number of companies.

PaulT (profile) says:

Re: Re: Re: Time to shut down Twitter

"What if smaller companies were to use human reviews, who could provide an actual explanation of what happened, instead of a useless automated form page?"

OK. How would you prevent other platforms from growing naturally to the point where this is impossible, as Twitter has? How would you do this without destroying free speech rights?

"If there wasn’t so much of a monopoly"

As we keep telling you pricks, there isn’t one. It’s not Twitter’s fault that Gab is full of racist idiots that prevent normal people from signing up.

Anonymous Coward says:

Is it time to shut down Twitter or at least move to another platform?

My (tending-to-Libertarian) perspective is that too many people aren’t willing to give other people any alternatives, once they’ve made their own choice.

Twitter can do what it likes. That includes deleting any antifa, maga, pro-Bump, or pro-Triden posts. (They could even delete libertarian posts, which are naturally disjoint from any of the other named groupings.)

I can’t move to another platform, I never went to Twitter in the first place. (I’m no journalist, nor yet a working scientific researcher.) But anyone else is (and should be) free to move from/to Twitter, for whatever they get out of it.

It seems to me, though, that the only effective moderation is community-driven: that companies like Google and Amazon could build communities based on posts liked and disliked: so the antifa hatemongers and neo-nazis could post all day, without either seeing each others’ posts, or even knowing what each other didn’t see. It would take most of the fun away from trolling to know that the only folk who were seeing you were other trolls.

Stephen T. Stone (profile) says:

Re:

companies like Google and Amazon could build communities based on posts liked and disliked

What happens when communities overlap, though? Anime fans don’t all march in lockstep vis-á-vis their political views. How could Twitter, for example, filter conservative anime fans out of a liberal anime fan’s timeline without its filters hitting false positives? What happens if the filters silence someone in, say, an antifascist group who doesn’t share the same media interests as the others in that group?

I like that you’re trying to think of new ideas, but you need consider possible flaws and loopholes to your idea. Think about how people might exploit your idea for their own ends. Would the work needed to prevent/mitigate those exploits be worth it?

crinisen (profile) says:

Takedown Challenges in progess?

I might have missed them, but is there anyone (ok anyone close to sane) challenging the takedown provision on first amendment grounds? I don’t even recall if anyone tried before it rolled out as unconstitutional per-se but even if they had it seems obvious that any assumptions used there might be invalid.

Anonymous Anonymous Coward (profile) says:

Re: Re: Takedown Challenges in progess?

As pointed out in the article, the private platforms are acting in response to a law, which is in fact from the government. Since that law requires takedowns even for illegitimate reasons at the request of third parties, and there is no due process in the process, it could be argued that it is the government mandating censorship , rather than a platform performing moderation.

crinisen (profile) says:

Re: Re: Re: Takedown Challenges in progess?

This is basically what I meant. Someone suing the Government saying their First or Fifth Amendment rights were harmed because the Government placed a law that puts liability on a third party if they don’t censor based on an accusation. However I already see a potential issue with this as someone could say they already have that liability, this just gives them a quicker out and thus the law doesn’t "censor".

This comment has been deemed insightful by the community.
Anonymous Coward says:

First amendment?

Mike,

You repeatedly talk of how the DCMA poses first amendment issues, but isn’t there also a fourteenth amendment issue? Possibly a much bigger one. After all, here we see a pretty much government mandated punishment with no due process whatsoever (and damn near no process at all). There was no trial, no right to refute, no right to effective appeal. No right to even know what you’re accused of doing.

Isn’t that a pretty direct 14th amendment violation?

ECA (profile) says:

Cant wait.

That a person say "…..,…,m………."
Anything, that can be quoted back to another source, even a song or movie..
And you will get a DMCA.

We already have STATES declaring that the Laws are Copy written..
"If you want a copy that will be $5 per page, with a Min 20 pages."

"Ignorance of the law is no excuse…"
Then you pay the $5 per page not me….At least give me a copy so I know what Im screwing up.

Anonymous Coward says:

What happens when communities overlap, though? Anime fans don’t all march in lockstep vis-á-vis their political views. How could Twitter, for example, filter conservative anime fans out of a liberal anime fan’s timeline without its filters hitting false positives? What happens if the filters silence someone in, say, an antifascist group who doesn’t share the same media interests as the others in that group?

The ideal would be that off-topic posts would be hidden–any kind of politics would be hidden from Anime tags. The more subtle benefit would be that the onus would be emphatically on posters to send to the right topic. If your posts are being hidden from the Anime group (and only shown to Antifa browsers), then it is not Twitter’s fault for censoring you, but your fault for posting to the wrong tag.

Stephen T. Stone (profile) says:

Re: Please use the Reply function next time.

Both seasons of Ghost in the Shell: Stand-Alone Complex are politically charged action-dramas. The second season, for example, has an overarching storyline involving refugees. A keyword filter set to catch political terms might pick out “refugees” and hide a post with that word even though the post only talks about the storylines of GITS:SAC. How could someone possibly discuss the storylines of that show without activating the filters?

Zane (profile) says:

Artists fault

I don’t see this as a copyright issue. Only the copyright holder or someone authorised to act for him can make such requests.
If the person didn’t have any right to make the DMCA request, then Twitter should take some action against the person who made the takedown request. It sounds like that is not the issue here though.

It seems that the artist wanted DMCA takedown requests but forgot he had already given permission (or not told the person acting for him) – well that is an issue with the artists actions. An artist doesn’t have to do takedown requests – this artist obviously wants control of how his work is used, otherwise why do any takedown requests?

I get how passionate you are against copyright. But there are limits to how much you can blame copyright for everything. Twitter had to take a copyright holders claim that a person doesn’t have rights to post content at face value. Maybe there does need to be a penalty for those who make inaccurate requests, or those like this artist who says he did give permission, but wasted everyones time by doing a DMCA request anyway.

This comment has been deemed insightful by the community.
Stephen T. Stone (profile) says:

Re:

If the person didn’t have any right to make the DMCA request, then Twitter should take some action against the person who made the takedown request.

The DMCA’s provisions for filing false DMCA claims have no teeth; that lack of bite is why Twitter isn’t going to do shit about false DMCA claims.

Anonymous Coward says:

Re: Artists fault

You say "Twitter should take some action" … but they can’t, legally. There is no provision in copyright law for the service providers to do anything but accept the takedown demands as having been made in good faith by the appropriate parties. Providers can ignore the demands which they believe to be invalid, but only at their own peril. Each provider sets their own standards based on the risk they are willing to shoulder, which is not very much.

The DMCA also fails to provide any accommodation for licensed music. So when an user has permission, as this one did, it does not matter; there is simply no way to register that license and ward off further takedowns. Anyone can still demand and get a takedown, because the service provider is obligated to treat it as prima facie legitimate, as well as to register a "strike" against the alleged infringer, leading to termination of the user’s account, even if the user successfully challenges the takedown and gets the content reinstated.

Then there are the providers’ own non-DMCA copyright enforcement systems which have separate rules and procedures, e.g. YouTube’s content ID, which is just as lopsided in favor of the wrong parties.

So yes, it is very much a copyright (law) problem.

Zane (profile) says:

Re: Re: Artists fault

The DMCA also fails to provide any accommodation for licensed music. So when an user has permission, as this one did, it does not matter; there is simply no way to register that license and ward off further takedowns

DMCA takedowns can only be initiated by the copyright holder or someone representing his wishes. It’s a given that most copyright holders would be aware of who they had licensed content to. I’m sure Twitter has the resources to sue anyone who are making wrongful takedowns requests. So yes there are legal avenues. Although I’m not convinced it really is a significant issue, but if it was a few targetted lawsuits would make certain people do some checks first.
Indeed wouldn’t you just go to the copyright holder who you licenced the material to and say "hey you did a takedown request – but you shouldn’t – I’ve got permission." who then should cancel the takedown.

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Anonymous Coward says:

Re: Re: Re: Artists fault

It’s a given that most copyright holders would be aware of who they had licensed content to

Not really. There’s plenty of cases mentioned on Techdirt – and other sites – where copyright holders just outright mess up on what they demand takedowns on. For what it’s worth, Viacom sued YouTube because they demanded YouTube to take down content… posted by Viacom.

I’m sure Twitter has the resources to sue anyone who are making wrongful takedowns requests

Let’s say they do – why would Twitter do so? It doesn’t cost Twitter as much to comply with taking down user-generated content.

So yes there are legal avenues

Which are about as useful as a ship’s captain asking surviving passengers from a shipwreck to raise their hand if they didn’t make it off the ship safely.

Indeed wouldn’t you just go to the copyright holder who you licenced the material to and say "hey you did a takedown request – but you shouldn’t – I’ve got permission." who then should cancel the takedown

Or they double down and force you to take the matter to court, which is unlikely given your far, far limited resources compared to theirs.

You seem to really, really want to break your back carrying copyright law’s water.

Anonymous Coward says:

Re: Artists fault

If the person didn’t have any right to make the DMCA request, then Twitter should take some action against the person who made the takedown request.

Twitter is a third party in copyright disputes, and does not have the information needed to evaluate claims,and possibly lacks standing to bring a claim as they are not the injured part. The poster is the injured party when false claims are made, and how many of those can afford to bring legal action?

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Mike Masnick (profile) says:

Re: Typical

Anyone who wants to change the DMCA takedown system are corrupt copyright maximalists.

I have not said this. There’s a weird cohort of people who insist that I don’t want changes to the DMCA. They’re wrong. I want massive changes to the DMCA.

However, the only person currently pursuing changes to the DMCA is Thom Tillis who ABSOLUTELY IS a copyright maximalist. I’d be thrilled if other people in Congress wanted to actually fix the DMCA.

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