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If We're Going To Change DMCA's 'Notice & Takedown,' Let's Focus On How Widely It's Abused

from the time-to-fix-the-real-problems dept

Earlier today, we wrote about a push by copyright maximalists for a new censorship regime that they call "notice and staydown" as a sort of replacement for SOPA. The idea would be to shred the existing DMCA safe harbors (which give service providers protection from legal liability if they take down content upon notification by the copyright holder that it's infringing), and make some dangerous requirements that service providers would then have to proactively police their sites to guarantee that no other versions of that content ever show up (even if the other versions may be legal). But, if we're looking at the notice and takedown provisions of the DMCA, we should really be exploring how much damage they do. Rather than "notice and staydown" or even "notice and takedown" it's time we move to a much more reasonable "notice and notice" system.

Thankfully, Automattic's (makers of WordPress) general counsel, Paul Sieminski's testimony at yesterday's hearing highlighted this problem in a big way, pointing out that Automattic sees plenty of DMCA takedown abuse.
At Automattic, we've seen an increasing amount of abuse of the DMCA's takedown process. The DMCA's takedown process provides what can be an easy avenue for censorship: simply send in a DMCA notice claiming copyrights in a piece of content that you don't agree with. Regardless of whether you own the copyright, the service provider that hosts the content must take it down or risk being out of compliance with the DMCA.

Recent cases of abuse have been well documented. For example, we recently filed an amicus brief in support of Stephanie Lenz's lawsuit against Universal Music Group. In that case, Ms. Lenz posted a home video of her young child dancing in their family kitchen to a song by the artist Prince. Soon after posting, Universal Music (Prince's record label) sent a DMCA takedown notice to remove the video, claiming it infringed on their copyright in the music playing in the background.

In our amicus brief, we, along with the internet companies who joined us, outlined many other recent examples of misuse of the DMCA that we've seen on our respective platforms. For example:
  • A medical transcription training service using forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
  • A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
  • A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
  • An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
  • A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.
Sieminksi also discussed Automattic's recent decision to sue over two particularly egregious abusive DMCA notices -- and to highlight how there's really very little in the way of recourse for those whose legitimate content is taken down over such abusive tactics.

And this is not a small problem. The same day, the folks over at CDT released a detailed report on meritless DMCA takedowns of political ads, noting how frequently the DMCA is used to censor important political speech. Pointing out that these takedowns clearly have nothing to do with copyright and everything to do with censoring political speech, CDT notes just how damaging the DMCA has become on this front.

In addition to that, Ed Black from CCIA published a piece about how important it is to stop the abuses of DMCA takedowns, highlighting how it's often used to attack competitors or content someone just doesn't like:

Congressional inquiry could shed light on how DMCA takedown tools have been abused. For example, academic researchers found a large number of cases in which businesses targeted competitors, such as one case identified in the recent Google Transparency Report where a driving school sought its competitor's homepage to be disappeared from search results, on the basis that the competitor had copied an alphabetized list of cities. Other examples of attempted takedowns involved an employer targeting blog posts by a disgruntled employee and a movie studio seeking to suppress a review.

DMCA abuse has also stifled speech over unfavorable interviews, embarrassing news stories, and political campaign videos. Some rights-holders fired multiple takedowns at an unflattering documentary about their legal war with the Pirate Bay. HBO even sent takedowns over lawful open source software, and just last week, it was reported that the DMCA was used to try to take down publicly available facts (which likely aren't even protected by copyright).

Finally, Public Knowledge's Sherwin Siy has a great opinion piece at Wired, in which he talks about how the "notice and takedown" system was designed as a "compromise" between copyright holders and service providers, but completely left out the people that copyright is supposed to benefit the most: the public:
This is not a two-sided issue. By only looking at copyright holders and online services, we neglect the interests of the most populous sector involved in copyright law: the public.

The safe harbors essentially are a safe harbor for online services, which host users' content like YouTube or Facebook. If a user of those services uploads something that infringes copyright, the host's liability is limited so long as it acts promptly to a takedown notice from the copyright holder. Each side gets something: the copyright holder gets a rapid removal of the infringing content, and the host gets safety from a potentially costly infringement lawsuit. But what happens to the users? Their uploads have been removed, and they're still potentially on the hook for massive statutory damages in a lawsuit.
We've discussed in the past how there are serious First Amendment concerns about "notice and takedown" provisions, in that they use government pressure to stifle free speech, placing huge potential liability on companies who don't disappear content based solely on the say-so of a single party.

And the simple fact is that there are better systems that would minimize the censorship risk. A basic "notice and notice" system is greatly preferable to a notice-and-takedown system (and, of course, the ridiculous notice-and-staydown). Under a notice-and-notice system, after receiving a notice, the service provider alerts the actual person who uploaded/created the content that is being targeted as infringing, providing them an opportunity to respond prior to taking down the content. There could be a set time, after which a lack of response would lead to a takedown. That way, most legitimate content is not censored, and the power of the DMCA safe harbors as a tool for censorship is greatly limited. Actually infringing content still gets removed in a timely fashion. It's such a reasonable solution that it will never happen with this Congress.

Reader Comments (rss)

(Flattened / Threaded)

    Gwiz (profile), Mar 14th, 2014 @ 1:51pm

    A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.

    That is so meta.


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

    Anonymous Anonymous Coward, Mar 14th, 2014 @ 1:52pm

    Constituents or Paymasters

    The question remains as to whether the congresscritters listen to their constituents or their paymasters?


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

    jupiterkansas (profile), Mar 14th, 2014 @ 2:04pm

    Re: Constituents or Paymasters

    I doubt their constituents are saying much on the matter.


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

    Anonymous Coward, Mar 14th, 2014 @ 2:11pm

    What they did not mention is that many private individuals hit by an invalid takedown:
    a) Do notknow how to fight it.
    b) Cannot afford the legal fees to consult a lawyer, never mind fight such a notice.


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

    Anonymous Coward, Mar 14th, 2014 @ 2:13pm

    dont be so damn ridiculous! what will be concentrated on is the 'Fair use' and other parts that protect the public. the industries will want those bits removed so they can remain longer in the analogue age, longer in the courtroom, suing as many as possible and longer being able to extort money from people! they want all protections for the public removed and fines increased, prison sentences increased and even the death penalty on the table, all for copying a movie!!


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

    Adrian Lopez, Mar 14th, 2014 @ 2:14pm

    Notice and notice

    A "notice and notice" system does seem like the best compromise, although it could still be used to either suppress anonymous criticism (because either the anonymous user's identity is unknown to the ISP, or the user is unwilling to reveal it), or unmask anonymous speakers (the ISP will take down the speaker's content unless his/her identity is first disclosed).

    The "notice and staydown" system, however, is ridiculous. Content removed after the first person accused of infringement fails to file a counter-notice will also be removed for users whose posts aren't named in the counter-notice, thus depriving them of the opportunity to respond. This is especially relevant for future infringements, where the infringement might take place long after the filing of the DMCA notice, leaving users without a notice to which they can respond.


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

    zip, Mar 14th, 2014 @ 2:39pm

    What DMCA compliance should have looked like

    Before being bought by the US company Highwinds, the Dutch hosting provider Eweka previously had a fair and rational takedown policy:

    3. Decision
    3.1. After receipt of the notice Eweka will forward the notice to the contact address of the subscriber known to Eweka.
    3.2 The subscriber will get at least one (1) day to respond to the allegation contained in the notice that the content posted is unlawful, unless in Eweka’s view the case is such that the response of the subscriber cannot be awaited. Eweka will include the response of the subscriber, if any, in its assessment of the unlawful character of the content concerned.
    3.3. Eweka will decide within five (5) business days on correctly and fully completed notices, unless Eweka is of the view that this decision will take more time.
    4. Assessment
    4.1. Eweka will assess the notices in accordance with Dutch law.
    4.2. If Eweka grants the request, it will first request that its subscriber immediately remove the content. If the subscriber does not immediately comply with this request, or if he proves that the content concerned is not manifestly unlawful, Eweka is entitled to immediately remove or make inaccessible the content.


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

    Anonymous Coward, Mar 14th, 2014 @ 2:44pm

    Re: Constituents or Paymasters

    politician: "speak up, we can't hear you over the sound of the money counting machine!"


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

    MOre, Mar 14th, 2014 @ 2:45pm

    Not Logical

    Automattic's arguments are somewhat misleading, because each of the cases that you cite here are in fact actionable under the current law. Falsely claiming to represent a newspaper, example, is a direct violation of the DMCA, and they could just directly sue the person filing. It would be a slam dunk win. Further, they could contact the newspaper in question and see about pressing a criminal case for fraud.

    The model case runs down the same lines. If the model doesn't own the rights, then it's a clear violation of DMCA and away you go.

    What I don't think anyone gets here is the "notice and takedown" is not the way the law is written, it's the choice that ISPs and service providers have made to limit liability. Rather than contact their client and accept a counter notice, a process that would relieve the service provider of liability, they instead just accept the notice and remove the content directly.

    Much of the problem stems from the anonymous or near anonymous status of posters on these services. You can sign up for a wordpress blog with a disposable email account, one that you never check. Very little extra information is required to get the account setup. At that point, Automattic leaves themselves in the position of being the only one who can get contacted in DMCA cases, and they must make choices. Automattic could resolve the issue by requiring more information from their customers and setting up a way to properly pass notices and accept counter notices, but they choose not to.

    If you really want to discuss DMCA, ask Automattic how many valid DMCA notices they get. Ask Google, and they will tell you they get millions of valid DMCA clams a month, some that they decline but were filed in good faith, and a small percentage that are sent with malicious intent. That a company the size of and with the financial ability of Google doesn't see a big enough problem to take legal action pretty much sums up the issue.

    If you really want to discuss DMCA, why look only at small scale individual cases and ignore the widespread abuse of the system? Can you look at business models built on abusing the DMCA process by knowingly posting copyright material (or allowing it to be posted), removing it only when notified by the rights holder? Or perhaps the companies who remove content by merely moving it to another URL, which wasn't in the notice? What about the site like Mega who permit a single copy to be owned by multiple users, and then only disabling specific listed URLs and not the rest? Those are the situations that generate the bulk of the infringement and the bulk of the notices, not a model with model regret or someone making fraudulent ownership claims.

    It is easy to cite outrageous examples of abuse of the DMCA, in the same manner that you can cite outrageous examples of abuse of the legal process by some to file frivolous lawsuits. The action of those few does not damn the entire system, they don't represent the goals, ideals, or nature of the system.

    Notice and takedown is a choice made by the service provider. They can legally do notice and notice right now, but a they are on the hook if there is no counter notice filed. Notice and notice means "notice and turn a blind eye", which would give anonymous posters incredible power to post copyright material without fear of removal, as notice and notice would lift the liability on the service provider. Anonymous posters would never truly be liable for their posts, and as a result, you would end up with a situation similar to the current problems faced by those who want to deal with slanderous or libelous material online: the phantom defendant. DMCA was carefully constructed so that there is always a way to deal with the issue, ultimately going up the chain of those who have some influence over a site, page, or file being online. It gives copyright abuses fewer places to hide, and no way to hide behind an service provider to protect them from the legal implications of their actions.


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

    Mason Wheeler (profile), Mar 14th, 2014 @ 3:45pm

    Re: Not Logical

    Ask Google, and they will tell you they get millions of valid DMCA clams a month, some that they decline but were filed in good faith, and a small percentage that are sent with malicious intent.

    That's an odd claim, because I was right about to use Google to make the opposite point: according to a study Google did on DMCA takedown notices received by Google, (see footnote 3 on page 9,) 57% were made by businesses targeted directly at their competition, and 37% were not valid copyright claims in the first place. Depending on how much overlap there is between the two categories, that suggests that as few as 6% of all takedown notices are legitimate attempts to stop piracy.

    Anything that's abused 94% of the time that it gets used is something you do not want around. Imagine if 94% of the time, automobiles were used for vehicular assault rather than as a means of transportation. Would we not declare the automobile a menace to public safety and ban the use of them almost immediately?

    And even if it weren't for the ridiculously high rate of abuse, the DMCA takedown system would still be a legal abomination, because of its reliance on extralegal resolutions to legal problems. To take any punitive action on accusation alone, rather than on proof and findings of fact by a court of law, deprives the accused of their right to due process and the presumption of innocence.

    No, the takedown process has to go. It's been a menace to the Internet since day 1, and it serves as the foundation for further abuses (SOPA, ACTA, etc. all based their censorship principles on the basic presumption of legitimacy for extralegal takedowns enshrined in the DMCA.)


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

    Kronomex, Mar 14th, 2014 @ 3:45pm

    The whole situation with DMCA's has gone into the realms of utter insanity. Will anything be done reign it in? Probably not. Censorship by any other name.


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

    Rekrul, Mar 14th, 2014 @ 4:08pm

    What Automatic said at the hearing:

    The DMCA takedown procedure has been widely abused to censor competitors, remove criticism, take down content content that's fair use and take down content mistakenly.

    What the politicians heard:

    WAAAH! The wonderful, super-honest corporations are bullying us nerds and we don't like it! WAAAH!


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

    Digitari, Mar 14th, 2014 @ 8:32pm

    Re: Not Logical

    said the anonymous commenter


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

    Anonymous Coward, Mar 15th, 2014 @ 12:30am

    Re: Not Logical

    Ah, the good old, "It's a choice!" canard. If a government is saying that you have a choice of being jointly and severally liable, or you can do an action to stop that from happening, then it's not really a damn choice.

    'Notice, counternotice and takedown' would be a far more honest strategy, but that would involvew actual costs, and NO-ONE EVER wants that! HONEST!

    Even if I do have problems with my concept above, it is still far more honorable than a system in ehich there is no legal recompense for copyfraudulent actions, either for financial gain or for harrassment purposes.


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

    Strafe, Mar 15th, 2014 @ 2:23am

    Re: Not Logical

    Going to court should be a last response, not a first response. It's expensive for both parties and the justice system doesn't need another burden placed upon it, not when there are (possibly better) alternatives. The best system for dealing with any kind of abuse is always going to be one where it doesn't happen at all, or happens only minimally, due to an incentive. The only way that can happen is through a rewrite of the DMCA to make it clearer as to what is and isn't allowed, and what the potential damages will be if senders of false notices decide to ignore it.

    If you still want court to be a first response (are you a lawyer?), then the law still needs to be rewritten so that no financial hardship is placed on those being falsely accused. When this happens to someone, it's usually a case of the rich and powerful picking on the little guy whom can't afford a lawyer and/or the investment of time required. If there was some guarantee that all legal fees, plus any loss of income, either due to the content being wrongfully taken down or having to miss work because of court dates, would be paid for by the offending party in full, I'd probably be fine with court being a first response.


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

    Anonymous Coward, Mar 15th, 2014 @ 3:28am

    Fixing DMCA

    I think there pretty trivial way to convince the Congress that DMCA should
    be fixed.
    We need to organize campain to use DMCA to take down congressmen web pages....


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

    Josh King (profile), Mar 15th, 2014 @ 9:51am

    Most UGC sites can do notice-and-notice today and still take advantage of the DMCA safe harbors. It's what we do at Avvo. But we're dealing with a relatively small number of DMCA notices; I imagine it would be trickier to do at the massive scale of, say, YouTube.

    However, and assuming this ridiculous notice-and-staydown proposal dies the death it richly deserves, what if a critical mass of sites openly agreed to follow a notice-and-notice process within the scope of the existing law? It could become a norm without needing legislative intervention.


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

    Anonymous Coward, Mar 16th, 2014 @ 8:35pm

    Re: Not Logical

    actually in the situation notice and notice would be exactly the same as notice and take down because the failure to respond would result in a take down or a presumptive win by the copyright holder. If you truly wanted a fair system you should make it notice and notice and give the copyright holder the right to object. If they do the content comes down but the uploader has the right to sue for statutory damages of 25k per user prevented from seeing the content.


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

    Randy Pickard, Mar 29th, 2014 @ 8:59am

    Re: Re: Not Logical

    Your math is a bit off. I file DMCA's daily reporting copyright infringing counterfeiters that are attempting to rip off consumers. Thus, 100% of my DMCA requests are against competitors. Of the 37% among total claims that were not valid claims, a large percentage of those are due to the sites being unavailable when the Google spider attempts to visit them. Thus, both the 57% and 37% numbers are inaccurate in regard to being abusive requests. And then to assume that the two inaccurate numbers are additive is ridiculous. It's hard to come across hard data, but I doubt that even as much as 2% of the total reports are abusive. Despite 1,000,000 URL takedown requests a day, Google is infested with counterfeiters


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

    Randy Pickard, Mar 29th, 2014 @ 9:12am

    Notice and Takedown

    The comments on this board seem rather one sided in regard to DMCA's being used for censorship and competitive abuses. But the other side of the coin is how ineffective the current legislation is as a tool for minimizing the capability of copyright infringing counterfeiters from ripping off consumers. You can read the other side of the story if you search of my post on "DMCA Whack-A-Mole and Google's Failure to Filter Copyright Infringers"


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

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