by Mike Masnick

Filed Under:
dmca, fair use, takedowns

google, viacom, youtube

Will Viacom/YouTube Ruling Lead To More Takedowns And Fewer Fair Use Reviews?

from the stretch-time... dept

It's a bit amusing watching the entertainment industry and copyright maximalists respond to the a judge's ruling upholding the basics of the DMCA safe harbors. We already noted Viacom's initial attempt to respond to the ruling by claiming that the case is about something entirely different than it's actually about. Take for example, the article a few of you sent in from someone pretending that Viacom probably wanted to lose (uh... yeah). Some are raising some interesting questions however. For example, this article by THREsq questions whether or not user-generated content sites will drop their filters now that the judge said they're not required. This question seems silly for a variety of reasons. First, I don't think any company is going to act directly in any way based on this ruling -- since everyone knows that there's still an appeals process to go through. Second, there's no reason why any company would change what they're doing because everyone in the tech world already knew that the DMCA does not require filters, even though Hollywood wants to pretend it does. If Congress intended the DMCA to require filtering software, it would have included that in the law.

But, most importantly of all, the reason user-generated content companies won't dump their filters is the same reason most of them chose to use filters in the first place: because it's probably good for business for most of them. The entertainment industry and its supporters keep pitching this story as if all of these sites want to fill up all their pages with infringing content. For the most part, that's not the case. Most of these companies would love to have actual deals and relationships with the big content companies, and those companies have made it clear that if you want to work with them, you need to have filters. So, even if the law doesn't require filters, for many companies, they know it just makes good business sense. But, it's rather telling in the way that some of the entertainment industry thinks that they set this whole thing up as an "us" vs. "them" scenario, where tech companies won't use filters unless they're absolutely required to by law. It never seems to occur to them that it might be mutually beneficial to have filters. But the studios aren't really big on understanding "mutually beneficial" scenarios. To them, if anyone else wins, the studio must have lost. Sometimes it makes me wonder if they never got to the part of their statistics classes that explains non-zero sum games.

The THREsq story does make one point at the end that's a little more interesting. It suggests that those of us cheering on this ruling may now be disappointed because this ruling might lead to more bogus takedowns. Basically, the judge pointed out that Google's quick response in taking down content as soon as it received takedown notices helped give it safe harbor protections. However, many people (including us here at Techdirt) have, at times, complained about Google responding to takedowns (or content ID matches) way too quickly and not taking fair use or if it was a legitimate claim into account. The suggestion, then, is that to make sure they're covered by these safe harbors, companies may follow Google's lead and be quick with the takedown. On top of that, since the ruling reminds copyright holders that the law puts (as it always has) the burden on them to alert a service provider of infringement, they expect this ruling will lead to greater and greater takedown notices.

I have to say that I find this argument entirely unconvincing for a simple reason: to most in the tech industry, this ruling didn't change a damn thing. The judge effectively said that the DMCA says exactly what most here believed it said all along: if you get a DMCA notice, you probably should take down the content pretty quickly to avoid liability. You can leave it up, but you risk opening yourself up to liability, so for all intents and purposes, most service providers are very quick to pull down content. On top of that, most content companies that fear these sorts of things have already been pretty aggressive on the takedown front, so I don't see why they'd become any more aggressive. They're already doing all they can.

Realistically speaking, this ruling doesn't change much, if anything. It just confirms what was already happening was and remains the correct process. If, somehow, this actually did lead to more takedowns, and many of those takedowns were illegitimate due to fair use (or the copyright claim itself was bogus), well, then, I would imagine that would only provide more fodder for those making the case that the notice-and-takedown provision of the DMCA violates the First Amendment.

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  • icon
    jeff2010 (profile), 25 Jun 2010 @ 10:39am

    The reason why Google won was mostly due to the fact they took down anything that was asked by the owner.

    At least they get 2nd chances, unlike some ridiculous copyright bittorent cases being attempted now to blackmail anyone and everyone without any chances, along with having no real proof either.

    reply to this | link to this | view in chronology ]

  • icon
    A Dan (profile), 25 Jun 2010 @ 10:43am


    'raisng' isn't a word.

    reply to this | link to this | view in chronology ]

  • icon
    Andrew F (profile), 25 Jun 2010 @ 10:54am

    First Amendment

    Question re. first amendment - To what extent does the DMCA's misrepresentation provisions mitigate abuse? If you were abusing DMCA notices to take down political speech, I imagine that the speaker could bring suit a la Lenz v. Universal Music Corp.

    reply to this | link to this | view in chronology ]

  • icon
    R. Miles (profile), 25 Jun 2010 @ 10:59am

    Interesting what people take away from the ruling.

    I've been cheering this news, but I wasn't surprised to see how many people have been challenging it because of the DMCA.

    Everyone I've read challenge this states "Section II" says ISPs, not websites, so this ruling shows how websites are altering the law to protect themselves.

    This pointed out a rather large problem in that people simply don't understand what's right, what's wrong, and what's "gray area".

    The entertainment industry has skewed the laws in their favor so much, no one has a clue, especially when one law says users can do this, but another says a user can not.

    I had thought about writing up these laws in "layman's language", but I'm not a lawyer, so any attempt would be futile. Especially when so many cases have touched on the DMCA, CDA, and Copyright without any direct correlation to the laws themselves.

    I mean, even Viacom tried to twist these laws into their favor.

    It's now to the point both sides have no true idea what the law is or is not.

    It's like Sisyphus rolling up the boulder. It's all pointless and it changes nothing.

    I guess this is why these industries continue to sue because "ignorance of the law" is what they want to push, yet it's not ignorance, but confusion.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Jun 2010 @ 11:21am

      Re: Interesting what people take away from the ruling.

      The act refers to Service Providers which does not equal ISP's

      Definition of “Service Provider”

      The DMCA contains two definitions of “service provider.” A “service provider” for the purpose of the first limitation, “transitory digital network communications,” is defined as “an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification of the content of the material as sent or received.” For the purposes of the remaining three limitations, a “service provider” is defined more broadly as “a provider of online services or network access, or the operator of facilities therefore.”

      reply to this | link to this | view in chronology ]

      • icon
        R. Miles (profile), 25 Jun 2010 @ 11:29am

        Re: Re: Interesting what people take away from the ruling.

        Believe me, I've read the definition, but again, it's so vague, one can construe "operator of facilities" as the ISP owner, not a website owner.

        The phrase "online service provider" causes confusion, and if the entertainment industry has its way, it'll use this clause as ISP, rather than websites.

        Trying to educate people on this has been tedious, at best. Everyone's up in arms over "artist rights" that they obscure the facts of aggregator sites are "criminal" for "providing" copyright content.

        Hence the need for a lawyer to write up the layman version. :)

        reply to this | link to this | view in chronology ]

        • icon
          Chronno S. Trigger (profile), 25 Jun 2010 @ 11:46am

          Re: Re: Re: Interesting what people take away from the ruling.

          The phrase is vague, there I agree with you. I do not, however, agree that the entertainment industry (and every single entity that will follow) would limit the interpretation of "online service provider" exclusively to those who provide the internet connection. It seems like that would limit their new business model's income greatly.

          reply to this | link to this | view in chronology ]

  • icon
    Hephaestus (profile), 25 Jun 2010 @ 11:17am

    Again why this is a good thing

    "It suggests that those of us cheering on this ruling may now be disappointed because this ruling might lead to more bogus takedowns."

    We all know the record labels and studios dont know their ass from their elbows customer service wise. They rule by monopoly, control, fear, and intimidation. Which has led to a great hatred of them, by both their customers and their artists. More take downs would be not only expected but welcomed. It creates more dissent out in the real world. More dislike and distrust of the labels and studios.

    All in all a good thing for the rest of us.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Jun 2010 @ 1:16pm

    "this ruling might lead to more bogus takedowns." - it wont lead to more bogus takedowns, but it clearly opens the road for rights holders to dmca first, ask questions later. fair use is an affirmative defense, it would make it for the user of the content to prove their rights, not for the rights owner to prove they dont. failure to promptly follow up on dmca notices or siding with users when uncertain would go against the protections that google / youtube had in this case.

    win or lose, viacom ends up ahead to some extent, because they can just paper youtube into submission.

    reply to this | link to this | view in chronology ]

  • icon
    DanVan (profile), 27 Jun 2010 @ 12:33pm

    What is comical is seing the media industry sue single users such as little kids or grandmothers and even SLIGHTLY think that is is going to deter a single soul from doing what they are doing

    It shows how truly stupid these people are and clueless they are with the tech industry.

    They aren't even slightly detering the actions that the media industry want to stop. Not even slightly

    reply to this | link to this | view in chronology ]

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