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

Copyright

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.

Filed Under: abuse, carl malamud, censorship, copyright, copyright school, dmca, takedowns, three strikes
Companies: wgbh, youtube