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5 Myths We're Likely To Hear At Tomorrow's DMCA Hearing

from the and-some-debunking dept

Tomorrow, the House Judiciary’s Subcommittee on Courts, Intellectual Property and the Internet is holding a hearing on the safe harbors of the Digital Millennium Copyright Act, Section 512, as part of a continuing reexamination of U.S. copyright law.  We cover this important framework frequently, because it has been instrumental to the growth of the Internet – by many accounts online safe harbors “saved the Web.”  Now that the DMCA is over 15 years old, a number of pervasive misconceptions have developed about its safe harbors.  Let’s consider some of the top DMCA misconceptions that we’re likely to hear tomorrow.

(1) “No one anticipated there would be so many DMCA takedowns.” (Also, “filter because whack-a-mole.”)

One of the critiques of the DMCA is that because it is used so frequently, it must not be working.  It is strange to argue that a system isn’t working when demand for it is going up, but I hear ‘the Internet must be filtered because whack-a-mole’ so often that if I owned the Whac-A-Mole trademark I’d be worried about it going generic.

It is true that DMCA takedowns are increasing.  This suggests rights-holders see value in the system, and that third-party takedown vendors are enabling more rights-holders to outsource policing their content at lower cost.  When Congress enacted the DMCA, it specifically legislated that online services have no continuing obligation to monitor Internet content, in Section 512(m)(1), acknowledging that there would be continued costs to enforcing rights through the DMCA.  Congress recognized that assigning this responsibility to online service providers ill-equipped to execute it would hamper the growth of online commerce.  It thus forged a compromise, ensuring that rights-holders would need to initiate takedowns, but would receive expeditious, extralegal relief in response to a complaint without the time and expense of going to court.  Some would prefer to unwind the compromise struck in 1998, however, and shift more of the burden of enforcing copyrights to service providers, perhaps through some form of content filtering.

(2) “Anyone can see there’s a lot of copyrighted content on the Internet.”   

It is not possible to ascertain on sight which works are copyrighted and which are not.  U.S. copyright law no longer requires ‘marking.’  More importantly, even for works with identifying information, it is impossible to determine which uses of works are licensed, or otherwise authorized by law.  One might simply assume that every digital file is copyrighted and be right most of the time.  This blog post, every email and selfie, and every cat video receives instant copyright protection.  With copyright’s low threshold of creativity, instantaneously attaching protection, and exceptionally long terms, it is hard for something not to be copyrighted.  But what should one do with the knowledge that every photo and email gets a century-plus of protection?  Obviously, no one wants to censor the famous Oscar “selfie” that went viral just because the copyright is owned by Ellen DeGeneres (or Bradley Cooper, or Samsung, or whomever…).  The fact that something is protected does not mean the rights-holder doesn’t want it online.

Often, when people refer to “copyrighted” content in this context, they actually mean “industrially produced creative works.”  More specifically, when someone says “there’s a lot of copyrighted content online,” what they really mean to say is “there’s a lot of stuff online that seems so professional that we should assume it was made by an industrial content producer, and that we should also assume they don’t want it online.”  Of course, this isn’t a particularly clear line: what metric should a hypothetical army of content reviewers apply in deciding how professional a work should be before it is purged from the Internet?

Even if there were a clear line, rights-holders of industrially produced creative works often approve of works being used online for promotional purposes.  And it isn’t just Oscar selfies.  In the Viacom v. YouTube litigation, it came out that Viacom’s marketing teams were secretly uploading its own works to YouTube, even after the lawsuit began, and its lawyers sued over works that had been uploaded to the site by its own personnel.  

Given billions of indexable pages, the absence of a reliable list (government-maintained or otherwise) of who owns or has licensed what, and the inherently complex contours of copyright’s exclusive rights and exceptions, only rights-holders are positioned to begin the process of enforcing their own rights.

(3)  Infringing content is “illegal.”

It is common to refer to infringing works as “illegal,” but this actually clouds the fact that the Copyright Act regulates actions, not content.  That is, a pirated work itself is not what violates the Copyright Act; the law is violated by the act of reproducing a work without authorization or as permitted by an exception.  In many cases this distinction doesn’t matter.  That doesn’t mean the point is mere semantics, however.  Because two different acts reproducing the same protected work may be alternately permitted and unlawful, depending on who did it and why, it is important to separate the infringement from the content.  For example, a law professor posting to YouTube the copyright announcement on an NFL game for her students to analyze in the classroom would constitute fair use, whereas an individual doing the same without any educational purpose might be labelled an infringer.  There’s nothing illegal about NFL football games (well, usually): it’s the act that matters.  Thus, it is important not to lose this distinction.

(4)  “Services filter for other illegal content; so they can filter for infringement.”

The previous point leads to this logical flaw.  The notion is that because some services attempt to filter wholly unlawful content, such as child pornography, they should also filter for lawful content whose use may be unlawful.  However, filtering any unauthorized Harry Potter for example, might also filter out Harry Potter reviews, book reports, and cultural studies.    Again, lawful content, used unlawfully, is not the same as unlawful content.  One cannot filter when lawfulness is context- and user-dependent, and even if that were possible, it is rarely stated when a use has been authorized.

(5) DMCA compliance is mandatory.

It isn’t.  Service providers may comply with the DMCA in exchange for the promise of liability limitations, and many services within the US and abroad (over 66,000 at last count) do so.  Notwithstanding that DMCA compliance can be a significant expense, particularly for smaller services, it is viewed by many as the cost of market entry: a regulatory obligation undertaken by responsible businesses.

That being said, DMCA compliance is not compulsory, a service can decline to comply with takedown requests — or even ignore them altogether.  As a standard business practice, this is a terribly bad idea, because of the potential exposure to copyright’s notoriously large statutory damages.  At times, however, online services can and do rightly refuse to comply with abusive requests by bad actors.  Attempts to get one’s business competition kicked offline, or to suppress criticism, embarrassing news, or disfavored speech are increasingly common.  (E.g., [1], [2], [3], [4]).  In each case that an online service stands up for users, however, it risks extraordinary liability if a court should later side with a complainant who the service initially concluded was not acting in good faith.

Reposted from the Disruptive Competition Project, DisCo


Reader Comments (rss)

(Flattened / Threaded)

  •  
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    Violynne (profile), Mar 12th, 2014 @ 11:45am

    "(5) DMCA compliance is mandatory.

    It isn’t."

    I can't agree to this at all. While on paper, it's true, when applied to the real world, it's 100% extortion: You will or ELSE.

    OSPs aren't going to risk a court case for every single action of refusing to abide by a takedown request, nor will they ever risk the possibility of a maximum fine of $250,000 per infringement, so they "comply" to the extortion.

    In addition, there is absolutely zero oversight to the process. If the public is afforded the luxury of copyright use by law, then how is it these sites are also not entitled to the same right?

    The law was fucked up when it was hastily drafted (by the RIAA and MPAA), signed by Clinton, and the internet's been worse for it ever since.

    Not just the internet, either. Because the DMCA also includes the infamous "circumvention" law, we can't even do with our electronics what we want despite legally purchasing them.

    Copyright maximalists can kiss my ass. The law, all of it, should be abolished.

    And while Congress is at it, toss patents too.

     

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    droozilla (profile), Mar 12th, 2014 @ 12:25pm

    Do like Nancy said.

    Just Say No...

    To the DMCA, to copyright & patent abuse, and to anything this government says at all.

     

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    Rekrul, Mar 12th, 2014 @ 12:45pm

    Yes, every one of these myths will be presented at the hearing and will probably be swallowed hook, line and sinker by the clueless politicians who are in the copyright industry's pocket.

    I think it's very unlikely that section 512's safe harbors will emerge from this completely unscathed. Expect proposals for them to be "refined" in ways that make things worse for everyone except the copyright industry. :(

     

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    Anonymous Coward, Mar 12th, 2014 @ 12:46pm

    The previous point leads to this logical flaw. The notion is that because some services attempt to filter wholly unlawful content, such as child pornography, they should also filter for lawful content whose use may be unlawful. However, filtering any unauthorized Harry Potter for example, might also filter out Harry Potter reviews, book reports, and cultural studies.

    Filtering for child pornography might also filter out legal, non-pornographic images of naked minors and legal, non-obscene pornography involving young-looking adults. Filtering out "wholly unlawful content" may be no less difficult than filtering out unauthorized copies, as it requires a judgment call based on incomplete information. Knowing the difference between fair use and infringement may actually be easier than knowing the difference between an 18-year-old and a 17-year-old from looking at a picture.

    The problem is that we're asking service providers to make decisions that are properly the domain of the courts. After all, the only way to know to determine guilt under our legal system is to take the accused to court.

     

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    Anonymous Coward, Mar 12th, 2014 @ 1:03pm

    well, this article is a complete waste! the lobbyists have been out in mega-force, lining the pockets of those who will make the decisions required, so that all businesses will be able to do what they like, at tax payers expense, lie through their teeth over take downs, when they know full well they have no legal right to do so, simply because stupid politicians are more concerned with how much they can get out of a corporation, industry or even a person, rather than making laws that do what they are supposed to and, in this instance, penalise those who abuse the copyright system without getting any penalty!

     

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    Gwiz (profile), Mar 12th, 2014 @ 1:06pm

    Did you "steal" from Lowery?

    Did you get this list from that Trichordist site?

    I'm pretty sure I've seen Lowery argue each and every one of these like they are chiseled-in-stone facts.

     

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      AC Unknown (profile), Mar 12th, 2014 @ 1:11pm

      Re: Did you "steal" from Lowery?

      Indeed. And his minion (or could that be Lowery himself?) "hurricane head" would also fire off other myths.

       

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    jameshogg (profile), Mar 12th, 2014 @ 1:12pm

    "Congress recognized that assigning this responsibility to online service providers ill-equipped to execute it would hamper the growth of online commerce. It thus forged a compromise, ensuring that rights-holders would need to initiate takedowns, but would receive expeditious, extralegal relief in response to a complaint without the time and expense of going to court. Some would prefer to unwind the compromise struck in 1998, however, and shift more of the burden of enforcing copyrights to service providers, perhaps through some form of content filtering. "

    The root cause of the "safe harbour" responsibility vacuum is a failure to admit that copyright is incompatible with and unenforceable in the real world.

    We all know fine well the takedowns are useless if users will reupload - under different IPs, encrypted, internationally, the list goes on. Never mind BitTorrent (I am Spartacus!) , email attachments, Skype file transfer, file "lockers"... basically, the internet.

    There are only two options: hold ISPs and websites responsible for the infringing copies their machines at the end of the day produce and bring one of the greatest technological booms since the industrial revolution to its knees, or scrap copyright and try something else. The safe harbours, morphed from a refusal to crush the internet and a refusal to budge from the "infallibility" of copyright, are just the result of nobody wanting to face the fact that copyright is, undeniably, incompatible and at fault. And it shows, due to the ease of coming into contact with any infringing material of our choosing despite the millions (billions?) of takedown requests.

    The true intellectual radicals of this debate are Kickstarter and IndieGoGo, and they don't truly realise it yet. To paraphrase LaPlace, in response to those who would ask what role copyright has with assurance contracts in protecting the property of artists, I say "they work without that assumption". They are the greatest, most underrated paywalls of all time. Justified paywalls, that is.

     

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    Anonymous Coward, Mar 12th, 2014 @ 1:14pm

    Another Myth:
    We don't abuse take down requests.

     

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    Mason Wheeler (profile), Mar 12th, 2014 @ 1:20pm

    Congress recognized that assigning this responsibility to online service providers ill-equipped to execute it would hamper the growth of online commerce. It thus forged a compromise, ensuring that rights-holders would need to initiate takedowns, but would receive expeditious, extralegal relief in response to a complaint without the time and expense of going to court. Some would prefer to unwind the compromise struck in 1998, however, and shift more of the burden of enforcing copyrights to service providers, perhaps through some form of content filtering.

    I'd prefer to unwind the compromise too, but for a different reason. The problem's right there, exactly as you acknowledged it: extralegal relief. This is a legal and moral abomination that flies in the face of some of our most sacred legal traditions: Due Process and the Presumption of Innocence.

    If I am suspected of violating any law, including copyright law, taking action against me before I have been proven in a court of law to have violated the law tramples my fundamental rights.

    And likewise, I don't understand how anyone who believes in the Internet we know and love can claim that the DMCA takedown system has helped it. The "safe harbor" protections sound good on paper, if the bad guys want you gone they'll destroy you anyway. (Just ask Aereo!)

    The true solution is to repeal the DMCA in its entirety, and replace it with a legal framework in which Internet content providers are treated as Common Carriers, and if some media company really wants something taken down, they have to go after the person who put it up, and go to the effort and expense of actually proving in a court of law that that person actually did something wrong. Anything else is an egregious violation of our legal rights.

     

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      Vel the Enigmatic, Mar 12th, 2014 @ 1:34pm

      Re:

      What you suggest would be great were it not for the fact that companies are all cheapskates when it comes to effort and expense on anything like that.

      They'll just keep endlessly throwing money at lawmakers to make laws to take care of it for them, like the lazy bastards they really are.

       

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      Anonymous Coward, Mar 12th, 2014 @ 3:35pm

      Re:

      If I am suspected of violating any law, including copyright law, taking action against me before I have been proven in a court of law to have violated the law tramples my fundamental rights.

      Arrest and seizure are also actions taken against you before you have been proven guilty in a court of law. So, no- it doesn't trample your "fundamental rights" whatever those are.

       

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        Mason Wheeler (profile), Mar 12th, 2014 @ 4:15pm

        Re: Re:

        I should have been more clear. Taking punitive action against me is a violation of my rights. Arrest and seizure are appropriate preventative actions to take against someone for which probable cause exists that they are likely to commit a violent crime or attempt to evade justice if not detained. But that has nothing to do with the topic under discussion.

         

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    silverscarcat (profile), Mar 12th, 2014 @ 1:35pm

    You know...

    If I owned the whack-a-mole trademark, I'd sue the industry for Trademark infringement.

     

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    Anonymous Coward, Mar 12th, 2014 @ 2:27pm

    “No one anticipated there would be so many DMCA takedowns


    I would suggest something else is going on here. When you look at the actions of the copywrong industry it is pretty much always about getting the other guy to do the work at his cost, not theirs. I suspect they didn't realize what a tool they had in their hands at the time of passage and that it is evolved into this massive computer generated train wreck.

    It seems to me the whole purpose of this computer generated DMCA is to create an avalanche of work for those involved with net communications to justify the demands that the government do something at taxpayers expense rather than theirs. You can see a point when the industry recognized this tactic might be useful and cranked up the DMCA submissions to Google.

    As long as there is no downside to just issuing DMCAs nilly willy without respect to penalty for wrongful claims, it's a free-for-all, with the more the merrier. Put in things like fair use concerns and false claim penalties with money being charged back to those that level these charges and you will see the spigot shut off on the majority of these submissions. Doing so would eliminate a lot of the headaches that tech companies such as Google are dealing with today.

     

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      Ninja (profile), Mar 13th, 2014 @ 4:03am

      Re:

      Google should charge for bogus claims as they are a waste of their workforce. Maybe this would at least improve the quality of the requests.

       

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    Anonymous Coward, Mar 12th, 2014 @ 2:34pm

    DMCA compliance is mandatory.


    How often have we read of Google refusing to honor a false claim DMCA, some even wanting to filter out their own authorized websites trying to sell the same?

    Or often that Google refuses to honor a DCMAs claiming false ownership and false reasons for wanting a take down?

    The point here is that very often one of the largest receivers of DCMAs on the net does not always honor those requests for takedown and it is evidence before your eyes of that false claim.

     

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    Anonymous Coward, Mar 12th, 2014 @ 4:21pm

    You forgot the myth that there are protections built into the DMCA for the public. How there is meant to be a pergury clause where they state that they are the owner of a copyrighted work.

    There have been how many successful cases to date?
    The ones that have been successful took how long to go through the courts? and the compensation when the case was won in comparrison to the payouts that the copyright owners have received?

     

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    madasahatter (profile), Mar 12th, 2014 @ 5:16pm

    "Often, when people refer to “copyrighted” content in this context, they actually mean “industrially produced creative works.” More specifically, when someone says “there’s a lot of copyrighted content online,” what they really mean to say is “there’s a lot of stuff online that seems so professional that we should assume it was made by an industrial content producer, and that we should also assume they don’t want it online.” Of course, this isn’t a particularly clear line: what metric should a hypothetical army of content reviewers apply in deciding how professional a work should be before it is purged from the Internet?"

    The problem the equation copyrighted on the web equals infringement is who posted it. It is only infringement if it is posted with out the consent of the copyright owner. It is difficult for many to determine who the owner of the content is or how it is licensed. Most people do not grasp what the Creative Commons and similar licenses allow.

     

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      MrWilson, Mar 12th, 2014 @ 6:04pm

      Re:

      "It is only infringement if it is posted with out the consent of the copyright owner."

      ...or if it falls under fair use or the person who posted it doesn't live in a country that has laws that requires compliance with the copyright laws of the country where the work was created.

       

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    karl (profile), Mar 12th, 2014 @ 9:08pm

    Extrajudicial, not extralegal

    I wish the author would have been more careful with his phrasing. The DMCA is extrajudicial, but it is not extralegal. It would only be extralegal if it was a voluntary contract between ISP's and copyright holders, without any government involvement.

     

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    PaulT (profile), Mar 13th, 2014 @ 2:50am

    “Services filter for other illegal content; so they can filter for infringement.”

    I think the biggest problem with this fallacy being missed is the most important. other illegal content such as "child porn" never changes illegal status. unless someone reduced the age of consent to 8, such pictures of 8 year olds will *always* be illegal. It doesn't matter who distributes them or how, they're against the law, and realistically always will be.

    With copyright infringement, however, such things are fluid. Fair use comes into play - how the content is used affects how the law perceives the content. A 20 second clip of a song in the background of a video caught while filming something else doesn't (or at least shouldn't - I'm looking at you, Prince) suddenly make the whole thing illegal.

    More importantly, the *exact* same content can be distributed in the same way on the same platform, and things outside of the platform can affect their legality. For example, Troma distributes many of its movies on YouTube. They're copyrighted, but available for free legally through their YouTube channel. If I were to take the EXACT same movie in the exact same form and upload it to my own YouTube channel, it would be infringing and illegal. However, if I were to have obtained permission from Troma to do so and they granted said permission, then the video would be legal. If said permission was granted or revoked after the file was uploaded, the legality of the video would change instantly.

    No algorithm can check for this. That's why this argument is so flawed, and reveals lack of real understanding of the issues on the part of the person arguing such things. It's an incredibly complex argument, so long as you value the rights of real creators and consumers alike, rather than the needs of a handful of corporations who'd rather that digital media didn't exist at all.

     

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