Twitch's Freak Out Response To RIAA Takedown Demands Raises Even More DMCA Questions
from the not-how-any-of-this-is-supposed-to-work dept
As many of you probably saw last week, Twitch decided to delete a ton of videos in response to DMCA takedown claims (which most people believe came from the RIAA). As we pointed out earlier this year, the RIAA had started flooding Twitch with DMCA takedowns over background music used in various streams. The whole thing seemed kind of silly, and now it appears that Twitch (despite being owned by Amazon and having some pretty good lawyers) was caught without a plan.
And that manifested itself in the way it handled these takedowns. Rather than the standard process — taking the content down, letting the user counternotice, and then potentially putting it back up 10 days later if no lawsuit was filed — Twitch decided to just totally wipe those files out and not even leave an option open to users to counternotice.
The key bit:
We are writing to inform you that your channel was subject to one or more of these DMCA takedown notifications, and that the content identified has been deleted. We recognize that by deleting this content, we are not giving you the option to file a counter-notification or seek a retraction from the rights holder. In consider of this, we have processed these notifications and are issuing you a one-time warning to give you the chance to learn about copyright law and the tools available to manage the content on your channel.
We know that copyright law and the DMCA are confusing. Over the past few months, we’ve been improving the tools available to help you manage music use in your live and recorded content. These include the ability to delete all of your Clips at once and control who can create Clips on your channel, scanning new Clips with Audible Magic and launching a free way to stream high quality music on your channel, Soundtrack by Twitch. Now that these tools have been released to all creators, we will resume the normal processing of DMCA takedown notifications received after 12 noon PST on Friday, October 23, 2020.
So… reading between the lines here, it sounds like someone (likely the RIAA or some similar organization) ratcheted up the threats for not being responsive enough on takedowns — and someone up top just said “nuke ’em all, so we can claim we got rid of everything.” But that’s incredibly stupid on multiple levels.
That first paragraph above is completely nonsensical and I’ve read it over multiple times trying to parse out what the hell it means. The company admits that it isn’t giving anyone any chance to counternotice, or get takedown demands removed. In fact, it sounds like they can’t even bring back any of this content. It’s just gone. That could really suck for some users who will not have that content at all.
But then in follows up with “In consideration of this…” which sounds like it’s apologizing and going to give users back some sort of benefit… but instead, it says it’s giving those users “a warning” and telling them to “learn about copyright law.” What? What sort of absolute nonsense is that. If someone’s video was mis-identified, or the video was fair use, why should they get a warning and have to “learn about copyright law”? It feels a lot more like Twitch should learn about copyright law.
Indeed, there’s a potential argument that by deleting the videos and not allowing there to be a counternotice, Twitch got rid of the DMCA’s safe harbor. If you read Section 512(g) of the DMCA, about the replacement of removed or disabled material, it says that there is no liability for the removal of content (which makes sense) with three “exceptions” delineated in Section 2. Here’s the relevant part of 512(g):
(1)No liability for taking down generally.?
Subject to paragraph (2), a service provider shall not be liable to any person for any claim based on the service provider?s good faith disabling of access to, or removal of, material or activity claimed to be infringing or based on facts or circumstances from which infringing activity is apparent, regardless of whether the material or activity is ultimately determined to be infringing.
(2)Exception.?Paragraph (1) shall not apply with respect to material residing at the direction of a subscriber of the service provider on a system or network controlled or operated by or for the service provider that is removed, or to which access is disabled by the service provider, pursuant to a notice provided under subsection (c)(1)(C), unless the service provider?
(A)takes reasonable steps promptly to notify the subscriber that it has removed or disabled access to the material;
(B)upon receipt of a counter notification described in paragraph (3), promptly provides the person who provided the notification under subsection (c)(1)(C) with a copy of the counter notification, and informs that person that it will replace the removed material or cease disabling access to it in 10 business days; and
(C)replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice, unless its designated agent first receives notice from the person who submitted the notification under subsection (c)(1)(C) that such person has filed an action seeking a court order to restrain the subscriber from engaging in infringing activity relating to the material on the service provider?s system or network.
So it certainly appears that you can read this to say that Paragraph (1) (the no liability bit) “shall not apply… unless the service provider… replaces the removed material and ceases disabling access to it not less than 10, nor more than 14, business days following receipt of the counter notice….” And thus, there is a reading of this that says that not replacing the material after receiving a counternotice (that is not followed by an actual lawsuit) could remove the safe harbor protections.
Of course, this may not really matter for a variety of reasons. First off, who would actually sue here? The safe harbors are from the copyright holder, but here the copyright holder is likely to be happy that Twitch has gone overboard in deleting all of the content. Second, this aspect of the safe harbor, which can be read to require the replacement of content following a counternotice has some other problems in that it can be read as forcing a company to host content. And, a website should have the freedom to not host any content it doesn’t wish to host, even if that content is not infringing.
I vaguely recall a lawsuit a few years ago on this point, though in search for it I can no longer find it. From my (apparently faulty) memory, I recall that someone challenged a website’s unwillingness to restore content after a counternotice, and the court found that a website has every right to keep a work it disabled offline. If anyone can remember which case this is, let me know.
Still, it remains somewhat perplexing that this is how Twitch handled all of this, and then claiming it would go back to “normal” DMCA processing as of the end of last week. Why couldn’t it have just kept that up this whole time?