Carl Malamud Asks YouTube To Institute Three Strikes Policy For Those Who Abuse Takedowns

from the a-potential-solution dept

We write frequently about those who abuse the DMCA either directly for the sake of censorship or, more commonly, because some are in such a rush to take down anything and everything that they don't bother (or care) to check to see if what they're taking down is actually infringing. The latter, while common, could potentially expose those issuing the takedowns to serious legal liability, though the courts are still figuring out to what extent.

Last week, we wrote about Boston public television station WGBH issuing a bogus takedown on some public domain (government created) video that Carl Malamud had uploaded to YouTube. That doesn't look like an automated takedown, but rather someone working for WGBH's legal team who just decided that anything with "American Experience" in a title must be infringing. Malamud has now published the letter that he sent YouTube, about the whole situation. It includes some more details concerning the insulting manner in which WGBH's legal team, Susan Kantrowitz and Eric Brass, handled the situation, including Brass telling Malamud that this wasn't a big deal because deleting this "particular film" was not that important.
Meanwhile, I finally reached the WGBH legal department. Susan L. Kantrowitz, General Counsel, wrote to me that “It is highly unusual for Amex to be in a title and not be one of our shows” and they would “address it on Monday.” Eric Brass, Corporate Counsel, wrote that “the take down request very well may have been an error, but given that it is late on a Friday afternoon in August, I may not be able to get back to you (or YouTube) until Monday.” He then wrote me back and indicated that while perhaps my YouTube account was important, this “particular film” was certainly not. I spoke to him on the phone and he repeated that no harm had been done, but and that after he completed his investigation he would,“follow up with something in writing that might be helpful for you if a question arises down the road about the take down.”

I want to stress that the timing of this takedown was not mine, it was instigated by WGBH and it was done deliberately as a formal legal action. Mr. Brass seemed quite peeved that I was upset, even though I was just minding my own business on the Internet when some hooligans from Boston came over and smacked me for no reason at all, then left for a weekend at the Cape.

The process of creating a copyright strike is not a casual one. WGBH had to go through several screens to identify the video, fill out their contact information, and checked numerous boxes indicating that they understood this was the beginning of a legal process, then signed a statement indicating that all statements were true and that they were in fact the true and correct owners of that film or portions of that film. In order to respond to that legal accusation, I had to go through a similar process of swearing under oath and accepting a court’s jurisdiction for my counter-claim.
Because of all of this, Malamud has suggested that YouTube institute a similar reverse three strikes policy for those who abuse the DMCA takedown process:
I believe that incorrectly posting a video that is under copyright is in fact worthy of a copyright strike. However, I think the opposite of that should be true. WGBH committed a copyright foul and should be prohibited from having the capability to take another user’s films down for a six-month period. If they commit 3 copyright fouls, their account should be revoked. WGBH personnel should be required to go to copyright school so that they fully understand their responsibilities under the law.

Given the blithe and uncaring attitude of WGBH legal staff, they should also be required to undergo copyright school. Their blase attitude was not impressive, and I can just imagine the reaction of WGBH if somebody had improperly taken down one of their media properties would not have been nearly so casual.
The idea of a reverse three strikes policy is not a new one. We first wrote about it back in 2008. Unfortunately, under the current wording of the DMCA, it would be very difficult to do it properly, but it does seem worth considering, considering just how frequency such a power is abused.

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  • icon
    Violynne (profile), 24 Aug 2015 @ 11:56am

    No dice. We already tried this several years ago with Google pretty much telling us since we bring them no financial revenue to go pound sand.

    Google's "policy" is to cater those who pay the ad bills.

    Everyone else are mindless drone who have no voice in what Google does.

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

    • identicon
      Nomad of Norad, 24 Aug 2015 @ 7:51pm

      Re:

      "No dice. We already tried this several years ago with Google pretty much telling us since we bring them no financial revenue to go pound sand.

      Google's "policy" is to cater those who pay the ad bills.

      Everyone else are mindless drone who have no voice in what Google does."


      You're assuming it would be Google crafting the policy, out of their own good will to Mankind. I'm picturing the new policy being signed into law by our duly elected officials, as an updated version of the DMCA rules. Basically, to continue being protected under the DMCA safeharbor guidelines, Google and other such companies would have to honor these rules too, or face fines themselves. That is, if it becomes clear that a given takedown request was invalid, Google (and thus Youtube) would be *required* by law to put the video back up without much delay once they realized the DMCA takedown was invalid, *and* would be required by law to remove any relevant "strike against this user" that came about due to the fraudulent DMCA takedown. AND ALSO the company that issued the bogus DMCA takedown would now have to pay a substantial enough fine to make issuing bogus takedowns not worth the risk and/or make sure they don't accidentally send one very often, AND they'd be required to pay any and all legal expenses of the user (or organization if it was an organization that owns that Youtube channel) they sent the bogus takedown against.

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

      • icon
        Nop (profile), 25 Aug 2015 @ 1:49am

        Re: Re:

        Google (and thus Youtube) would be *required* by law to put the video back up without much delay once they realized the DMCA takedown was invalid


        As much as I agree with you on the ethics of the situation, there is zero chance of a court forcing a private business into hosting content if they don't want to. Moreover, I'm 100% sure that the YT TOS says that they can take down anything they like for any reason or no reason.
        Better to concentrate on punishing the actor making the false accusations.

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

      • identicon
        Anonymous Coward, 25 Aug 2015 @ 2:05am

        Re: Re:

        That is, if it becomes clear that a given takedown request was invalid, Google (and thus Youtube) would be *required* by law to put the video back up without much delay once they realized the DMCA takedown was invalid,

        That assumes that the affected person can gain the attention of someone at YouTube to review the takedown, and that often requires that the problem makes it to the pages of the likes of Techdirt.

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

  • icon
    That One Guy (profile), 24 Aug 2015 @ 12:25pm

    "What do you mean filing fraudulent legal claims now has a downside?!"

    This is absolutely something that needs to happen. I personally wouldn't set the initial 'strike' penalty quite so high, perhaps a week or maybe a month, since everyone can make a mistake, but there absolutely does need to be a penalty for bogus takedown requests, and it needs to be at a minimum just as serious as the penalty for infringement.

    The only way fraudulent DMCA or takedown requests will ever be dealt with is if there's an actual penalty for issuing them. So long as that's not the case, so long as people and companies can just automate takedown demands with no penalty at all, no matter how clearly fraudulent the demand is, it will keep on happening, and the problem will only get worse, never better.

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

    • icon
      JoeCool (profile), 24 Aug 2015 @ 5:01pm

      Re: "What do you mean filing fraudulent legal claims now has a downside?!"

      So what should happen is that EVERY time a claim is made that fails, they have to go to copyright school before they can make another claim. No bans, no fines, just another round of school before they can make more claims. If they make 100 bad claims, 100 times in copyright school.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 24 Aug 2015 @ 1:03pm

    Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

    So it's complete non-starter. But as usual, you like anything that will help piracy and hamper copyright.

    Next pro-piracy idea, please.

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

    • identicon
      Anonymous Coward, 24 Aug 2015 @ 1:05pm

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      You have no idea what the word honest means.

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

    • icon
      That One Guy (profile), 24 Aug 2015 @ 1:14pm

      Careful there, your hypocrisy is showing

      So if you're going to defend the actions here as an 'honest mistake', when it was obviously anything but, you just destroyed any ability you might have had to criticize those engaged in copyright infringement.

      After all, clearly someone downloading a song/movie/book that they don't actually own was just making an 'honest mistake', so no need to worry, it's no big deal.

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

    • icon
      The Groove Tiger (profile), 24 Aug 2015 @ 2:04pm

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      Excellent. Anonymous Coward just declared every instance of "honest mistakes" on "file sharing" sites a complete non-starter.

      We need to spread the word to every copyright holder out there, that any attempt to pursue legal action against any of those who make these "honest mistakes" are complete non-starters and that they mustn't bother.

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

    • icon
      DannyB (profile), 24 Aug 2015 @ 2:05pm

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      This is not a pro-piracy idea.

      It is clearly an anti-piracy idea. You ask everyone else to come up with how to fix the problems for you. When good ideas are given, you dismiss them.

      I think a better idea is that there should be a statutory fine of $150,00 per bogus takedown. Where bogus means one of several things:
      * the takedown is not from a copyright owner or registered agent
      * the material clearly does not infringe, on its face. (Example: personal recording of nature sounds, birds singing does not infringe major copyright holder's music)
      * the takedown was based on insufficient investigation (which would have immediately prevented the prior example of nature sounds). Example: filing a takedown based simply on the title. Oh, it has a word from my title, so it MUST be infringement!

      These ideas are not pro piracy. These ideas protect LEGITIMATE CONTENT PRODUCERS. People who put videos up on YouTube that do NOT infringe copyright. People whose channels are threatened by careless or malicious DMCA notices.

      I'm not talking about a DMCA notice that has a minor defect. I'm talking about DMCA notices that should never have been filed without making sure of what they are filing over. Or that were not filed by someone authorized to file.

      What is your opinion on that?

      It helps legitimate content producers. So you should be in favor of it.

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

      • icon
        nasch (profile), 25 Aug 2015 @ 12:43pm

        Re: Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

        It helps legitimate content producers. So you should be in favor of it.

        He doesn't really care about content producers, but about content middlemen and gatekeepers. Your proposal doesn't really help them so it wouldn't interest him, as you can see from his lack of response.

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

        • icon
          DannyB (profile), 26 Aug 2015 @ 8:42am

          Re: Re: Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

          Yes. I know that. But thanks.

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

    • identicon
      Anonymous Coward, 24 Aug 2015 @ 5:40pm

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      The point is that the law is very unforgiving against anyone who infringes or hosts third party infringing content when compared to those who file invalid takedown requests. The opposite should be true since someone sending a takedown request is in a much better position to know if they own the copy protection privileges than anyone else. Holding those who file bogus takedown requests up to an equivalent or higher standard than those who infringe is not pro piracy. It's common sense.

      But you wish to hold them to a lower standard and claim that doing otherwise is pro piracy. Holding them to a standard that even slightly punishes them for repeat offences is being unforgiving and inconsiderate of the fact that humans make mistakes. Holding infringers and service providers up to a much higher standard is not enough. You are such a hypocritical shill with your double standards.

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

    • icon
      JMT (profile), 24 Aug 2015 @ 10:44pm

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      Please explain how this could possibly help piracy and hamper copyright. That's a complete head-scratcher.

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

    • identicon
      Anonymous Coward, 25 Aug 2015 @ 2:23am

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      "Honest mistakes happen too..."

      Yes, but there's a point where false takedowns cease to become an "honest mistake" and is nothing less than dishonest and unscrupulous.

      You and yours passed that point several hundred false takedowns ago.

      "But as usual, you like anything that will help piracy and hamper copyright."

      Another lie from you. Requiring takedowns to be made honestly, and punishing those who make false takedowns does not "hamper copyright", it strengthens it by making sure only legitimate takedowns can be made.

      It's not "pro-piracy", it's anti-copyright abuse. You need to stop lying.

      Yes or no - will you stop lying?

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

    • identicon
      Ruben, 25 Aug 2015 @ 7:40am

      Re: Honest mistakes happen too -- just like on "file sharing" sites -- and Youtube is not about to attempt judging!

      Let's just abolish courts.

      After all, accusation = guilt anyways.

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 1:04pm

    It could actually be EASILY implemented.

    Yes, Google can't actually outright "deny" the DMCA requests, but over the years Google has made it SUPER SIMPLE for some big companies to take down stuff. So the three strike policy should be about STRIPPING THEM OUT of that extra-special power that Google has been giving them.

    Force them to do a DMCA request for every single instance of a single video - as it should be. Let's see how much they like that.

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

    • icon
      John Fenderson (profile), 24 Aug 2015 @ 1:45pm

      Re:

      "Google can't actually outright "deny" the DMCA requests"

      Actually, Google can deny any such requests it wishes. There is no legal requirement for them to honor any of them. They honor them because doing so gets them a shield from some legal liabilities.

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

      • identicon
        Anonymous Coward, 24 Aug 2015 @ 6:16pm

        Re: Re:

        The point is that our current broken legal system strongly encourages them to do what they are currently doing by favoring takedown requesters over potential infringers. Ignoring a valid request is far more legally risky than falsely removing legitimate content. That needs to change.

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

        • identicon
          Anonymous Coward, 24 Aug 2015 @ 6:19pm

          Re: Re: Re:

          An increased legal risk shouldn't be directed at google. An increased legal risk for bogus takedown requests should be directed at the requester.

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

      • identicon
        Anonymous Coward, 25 Aug 2015 @ 7:12am

        Re: Re:

        Considering that Google doesn't actually host content, I'm not sure if the DMCA even technically applies to them.

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

  • icon
    Uriel-238 (profile), 24 Aug 2015 @ 1:10pm

    Poetry.

    I was just minding my own business on the Internet when some hooligans from Boston came over and smacked me for no reason at all, then left for a weekend at the Cape.

    This phrase made my day.

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 1:16pm

    Holy Crap! he'll be whisked off to somewhere, never to be heard of again and that's just for suggesting such a thing! how dare he give the abusers the same as the rest of us! the entertainment industries will be on this like a rash!! i can hear Dodd now, 'what? make us adhere to something like everyone else? what's wrong with you? you want to take away our advantage? we have this for life + 70years, dont you know??!!

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

    • icon
      Sheogorath (profile), 24 Aug 2015 @ 1:59pm

      Re:

      Not in my case, life + 50 for me. Hey, they're my copyrights. If I want to restore them to the original Berne Convention term in my will, I'm perfectly entitled to do so. :)

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 1:29pm

    All of this could have been avoided if Eric Brass had just offered to send Mr. Malamud a tote-bag and a VHS box set of I, Claudius.

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 1:39pm

    "It is highly unusual for Amex to be in a title and not be one of our shows” and they would “address it on Monday.” "


    Now WGBH is gonna have problems with American Express.

    Its highly unlikely anyone would say AMEX w/o meaning american express.

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

    • identicon
      Anonymous Coward, 24 Aug 2015 @ 1:53pm

      Re:

      Exactly. I heard "Amex", and also thought of American Express. As a matter of fact it's a trademark.

      Malamud can worry about an equally useless trademark complaint too.

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

  • icon
    Gary (profile), 24 Aug 2015 @ 1:51pm

    Fraud

    I think lawyers committing this sort of fraud should be sanctioned by the bar.

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

  • identicon
    David, 24 Aug 2015 @ 2:01pm

    We need more videos

    Talking about this new "American Experience" of improper takedowns.

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

  • icon
    ECA (profile), 24 Aug 2015 @ 2:18pm

    i suggested this long ago

    But it wont happen..

    NOW, I could suggest something With this..

    1. that a DMCA take down must be 90% in its complaint list..
    If looking for spider man 2...the Movie..the list must hit that name 90% or better..
    2. NOT a single word Search/title..you would get so many False hits, its stupid.

    There probably are a few more, but lets start with those.

    IT WONT HAPPEN..why? because the corps that post their own movie on Youtube, would remove their OWN media..which they HIT with DMCA all the time..Even the ones Pay to PLAY..

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

  • identicon
    Joe, 24 Aug 2015 @ 2:18pm

    I think banning someone from making DMCA requests would fail, but you can incentivize accuracy. For example, 3 invalid requests within a 3 month period would trigger a manual review process on any new claims made in the next 3 months. Each manual review would incur a fee of $200.

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

    • icon
      Sheogorath (profile), 24 Aug 2015 @ 2:52pm

      Re:

      That's unfair. The manual review fee should be $500. They can afford it, after all. ;)

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

      • icon
        tqk (profile), 24 Aug 2015 @ 3:19pm

        Smeg.

        That's unfair. The manual review fee should be $500. They can afford it, after all. ;)

        And the takedown will occur during the next manual review takedown event which occurs *about* every six months, give or take six months or thereabouts, within reason, depending on how they feel at the time and whether they can spare the resources, not to mention any other considerations which may arise, which probably will.

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

  • icon
    Nathan F (profile), 24 Aug 2015 @ 2:36pm

    Maybe a slightly easier idea to get through. When someone goes to fill out the takedown paperwork include another page where they have to physically watch/listen to the item in question before it can be finally submitted.

    That way when they (inevitable) screw up a take down they can't just say 'Oh.. my bad, it had the same name as xyz.. no harm done!'

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

  • icon
    tracyanne (profile), 24 Aug 2015 @ 5:21pm

    If fraudulent DMCA take downs go unpunished

    Why are not more, or any, people making fraudulent take down requests on MPAA/RIAA stuff. Sooner or later that has got to cause some one somewhere to sit up and take notice.

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 6:17pm

    Get over yourselves.

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

  • identicon
    Anonymous Coward, 24 Aug 2015 @ 6:50pm

    Won't do much good. Assuming YT were to actually create such a policy, what we'd see next is major entertainment companies spinning up loads of shell corporations, and then sending three takedowns via Shell 1, three more via Shell 2, three more via Shell 3, etc...

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

    • identicon
      Nomad of Norad, 24 Aug 2015 @ 8:02pm

      Re:

      The solution then would be, instead, to make them pay a fine for each bogus takedown, possibly one that grows ever larger the more bogus takedowns that company has sent. And if they set up a series of subsidiary companies to get around this, tie the fines to the conglomerate as a whole, not just to the individual subsidiary, and if it appears from the outside that the purpose behind them making the smaller company is purely to get around the issue, the fines should in fact be even bigger.

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

  • icon
    Uriel-238 (profile), 24 Aug 2015 @ 7:09pm

    The shell company game

    I'm pretty sure that would get evident, tedious and intolerable fast.

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

    • identicon
      Anonymous Coward, 25 Aug 2015 @ 12:06am

      Re: The shell company game

      Remember that the movie Industry is one that creates a new companies at the drop of a hat, as it enable them to ensure that a film never makes a profit. Just look at the credits for any movie to see how many companies are involved in getting the movie from the camera to the studio. They do not find the process to be at all tedious, especially as it allows them to keep all the income and avoid paying taxes by avoiding ever making a profit.

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

  • identicon
    DigDug, 24 Aug 2015 @ 11:29pm

    As long as the 3 strikes means they have no more copyrights...

    Just make the penalty for the 3rd invalid copyright request means that ALL of the copyrights owned by the entity making the invalid takedown request go in to the public domain regardless of time left to expiry.

    Watch all the big corporations cry in agony as within the first 16 seconds of the new law passing, a massive trove of copyrights enter public domain for all eternity.

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

  • identicon
    Anonymous Coward, 25 Aug 2015 @ 8:35am

    Belated suggestion

    For customers, donors, voters and those summoned to jury duty (i.e. all us wogs) I suggest the following: View the false DMCA take down notice as a form of copyright infringement. There must be an affirmation of owning the copyright; using a copyright one doesn't own or license is copyright infringement. Therefore each entity that issues a false DMCA notice is a copyright infringement perp. In many U. S. states the law says a perp who is harmed by their actions aren't able to sue their victim. I say that, regardless of the details of the law, as a juror I generally find perps without any credibility. Therefore, for the foreseeable future WGBH is simply not credible. Not as a juror, not as a customer, not as a donor, I will not and suggest that you do not believe anything they say. Similarly, disbelieve all of Hollywood and their servants for the same reasons. Therefore, if Hollywood, WGBH, the AG of Mississippi or any prosecutor attempts to persuade jurors about copyright infringement, then the above listed are not credible. Call it a customer, donor, voter and juror implementation of "Unclean Hands".

    Jury duty may be a pain, but like the law itself, jury duty is a tool. Both the law and jury duty have a sharp edge. We, the wogs of the nation, are the holders of the tool of jury duty. Please use jury duty wisely.

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

  • icon
    Coyne Tibbets (profile), 25 Aug 2015 @ 11:52am

    Suggestion for an approach

    This will never go anywhere. Companies will simply whine that, "It's too hard to overcome piracy if we have to ensure everything we take down is actually ours." Congress will give in to the whine.

    What Congress might go for is more of a proof-of-ill-intent. Errors will happen, yes, but if your erroneous executed take-downs exceed 2.5% of your executed requests during any one month period, you should become subject to penalties of $100 to $5,000 per improper take-down, depending on malice.

    ($100 per patient data exposure per day is what HIPAA uses, and believe me, we do pay attention to that. Expose 1000 patients for a 30 day period and that adds up to $3 million.)

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

  • identicon
    Anonymous Coward, 25 Aug 2015 @ 5:43pm

    isn't there already supposedly a penalty for filing false DMCA claims and that it is simply that there has never been any attempt to enforce it?

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


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