Copyright Gets In The Way Of Chef Andres' 'Recipes For The People'; Because The DMCA Takedown System Is Still Broken

from the copyright-not-for-the-people dept

On Tuesday evening, famed chef (and all around wonderful human being) José Andrés tweeted about how Twitter had taken down his videos "without really a detailed explanation of why or whom."

As he notes, "I'm guilty before a judge will rule..." Of course, while his anger was pointed at Twitter, the real problem is not Twitter, but rather the DMCA's Section 512, whose entire design is that you are guilty before any judge will rule. This is why we've been pointing out that the notice-and-takedown process of the DMCA seems to raise serious 1st Amendment issues. It's very much guilty until proven innocent, by design, with censorship built in (and yes, I mean censorship because it's compelled by the state).

What's really stunning, of course, is that this is happening at the same time when the Copyright Office is claiming that we should make this problem much, much worse by giving people and companies more power to censor and force content down prior to any judicial review. And, of course, you have willing elected officials trying to make this happen.

The details of the Chef Andrés' story are instructive of just how problematic the notice-and-takedown system is, and has been. He's been creating a bunch of amazing videos under the #RecipesForThePeople hashtag, where he and his daughters cook up simple meals that anyone can prepare at home during lockdown. You should watch them. They're a joy to watch. In each one, beyond cooking a relatively simple meal, he does it to music (often dancing and/or singing along while cooking). As he explains, the music all comes from musicians he knows -- such as Lin Manuel Miranda -- who gave him permission to do so:

There are a bunch more, but they're really a joy to watch. And while Lin Manuel Miranda gave his permission, that doesn't much matter in reality, because the entire DMCA 512 notice-and-takedown system is based on the idea that you just keep on sending takedowns. And even if permission has been granted, why that's just too difficult to continue to track. So the takedowns still get sent, and Twitter is pressured into taking it down, or it could face massive liability for copyright infringement's statutory damages.

While this story might just seem like a "mistake" it's actually illustrative for a variety of important debates we're having -- both the debate about making the DMCA even worse and the Section 230 debates. We pointed out that the Copyright Office (and people in Congress talking about 512 reform) have so far mostly ignored false takedown notices. But they happen every damn day. We hear about ones like this one, because it happened to someone who is pretty famous and so it makes news. But if it happened to someone less well known -- they might just be out of luck.

And it also impacts the Section 230 debates, because so much of the reform ideas put forth would effectively turn other issues into a similar DMCA style "notice-and-takedown." Indeed, that's part of the DOJ's proposal to create a "knowledge" standard that would require sites to remove content. Under such a regime, again, you have a system like this one, in which once a platform is notified, assuming it cannot tell whether or not the content is legit or licensed or whatnot, it has every incentive to just pull it down -- "before a judge will rule..."

Filed Under: censorship, chef andres, dmca, dmca 512, hamilton, jose andres, lin manuel miranda, notice and takedown, section 230
Companies: twitter


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  • icon
    John85851 (profile), 18 Jun 2020 @ 10:01am

    Time to shut down Twitter

    Is it time to shut down Twitter or at least move to another platform?
    Between these copyright issues, the rants and threats from Trump, the trolls attacking female and African-American celebrities (and people in general), and general disinformation by bots, what good is coming out of Twitter?

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

    • icon
      Stephen T. Stone (profile), 18 Jun 2020 @ 10:09am

      Another platform will have its own issues — some of which may be similar to Twitter’s. Besides, the larger issue lies not with the service you’re using, but the culture created by its users (and admins).

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

      • identicon
        David, 18 Jun 2020 @ 10:25am

        Re:

        Well, how about making it a choice? You can use Twitter but forfeit the right to vote in an election. Unless you get about 50% of fact-based questions answered right?

        I know, I am dreaming. The problem is that a democracy does not work when people don't know what they are talking, and more poignantly voting about.

        So it is the highest duty of any politician in a society governed by democratic procedures to make sure everyone is as well educated about all known facts as possible, and then promote one's own ideas about what actions best to pursue in recognition of those facts.

        The U.S. as well as its political system has become a total failure in that respect. Politics are no longer about convincing people what plan would be best for dealing with facts known through wide dissemination, but rather about convincing people about falsehoods and making sure as few facts as possible are established for the sake of decision-making.

        Voters are not asked to choose between strategies any more, they are asked to choose between realities. That's really, really sick.

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

        • icon
          Stephen T. Stone (profile), 18 Jun 2020 @ 11:05am

          That’s nice.

          But what the blue blazing fuck does any of that have to do with the article in general or my comment in particular?

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

          • identicon
            David, 18 Jun 2020 @ 1:02pm

            Re:

            But what the blue blazing fuck does any of that have to do with the article in general or my comment in particular?

            "Besides, the larger issue lies not with the service you’re using, but the culture created by its users (and admins)."

            The filter bubbles of social media support the creation and maintenance of separate realities.

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

        • identicon
          Anonymous Coward, 18 Jun 2020 @ 12:38pm

          Re: Re:

          The idea that one is allowed to waive or forfeit their inalienable rights before the fact is ridiculous. I can understand the contractual promises to not sue if something goes wrong, but that is a bit different than giving up one's right to vote.

          No - I am not prepared to give up any rights and certainly not for something silly like twitter.

          Politics has always been about bullshit, all those words and virtually no action. Every decade or so there is a huge movement among the populace which actually results in change. The change is a bunch of words on paper that mean something to many but means nothing to those who enforce the law. Rinse, repeat.

          Voters are asked to pick a cult of personality. It would make more sense to me if we voted on the issues, I must be crazy!

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

        • icon
          Thad (profile), 18 Jun 2020 @ 1:48pm

          Re: Re:

          Well, how about making it a choice? You can use Twitter but forfeit the right to vote in an election. Unless you get about 50% of fact-based questions answered right?

          Yeeeeeah, we banned requiring tests in order to vote on account of it was racist as fuck, so maybe let's not.

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

    • icon
      Anonymous Anonymous Coward (profile), 18 Jun 2020 @ 10:14am

      Re: Time to shut down Twitter

      Twitter isn't the problem as all platforms are saddled with the same issue. That platforms don't have better transparency in these matters, or a better method to refute such claims is another story. They can, and they should, even if it requires more work.

      The issue is, in reality, the 'notice-and-takedown' part where the accused if found guilty without any kind of third party review (like a court as at this time no other entity has the power). This is the part that deserves a critical 1st Amendment challenge, but there are at least two problems with that. First we need someone with standing AND the financial resources to back up their argument to make a commitment (which could take years and big bucks). Second we need courts to recognize what is actually happening (i.e. take judicial notice of 512 requests that are not in fact in good faith or even truthful) and do something about it. The part of 512 that addresses this issue is woefully inadequate and not even followed up on when it is appropriate.

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

    • icon
      Mike Masnick (profile), 18 Jun 2020 @ 10:34am

      Re: Time to shut down Twitter

      Is it time to shut down Twitter or at least move to another platform?

      I am confused as to how this is a Twitter problem? This is a copyright problem. Any other platform would (and does) face the same issues.

      Between these copyright issues, the rants and threats from Trump, the trolls attacking female and African-American celebrities (and people in general), and general disinformation by bots, what good is coming out of Twitter?

      Lots and lots of amazing stuff comes out of twitter. I get way more value out of it than just about any other site.

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

      • icon
        Koby (profile), 18 Jun 2020 @ 12:15pm

        Re: Re: Time to shut down Twitter

        I am confused as to how this is a Twitter problem? This is a copyright problem. Any other platform would (and does) face the same issues.

        Two thoughts:

        1.) As a system becomes larger, more automation is needed. What if smaller companies were to use human reviews, who could provide an actual explanation of what happened, instead of a useless automated form page?

        2.) If there wasn't so much of a monopoly, perhaps a platform that gets a reputation for unwarranted takedowns would lose customers. A platform that
        a fights on behalf of its users, sees bogus takedown, leaves the content up, and fires off a nastrygram to the copyright troll might earn a lot of community goodwill. Other platforms might then be required to follow suit.

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

        • icon
          Stephen T. Stone (profile), 18 Jun 2020 @ 12:21pm

          A platform that fights on behalf of its users, sees bogus takedown, leaves the content up, and fires off a nastrygram to the copyright troll might earn a lot of community goodwill.

          It’ll also face legal liability for that content. The DMCA requires a service provider to disable access to the contested content once it receives a takedown notification. Only by doing so can the service provider keep their “safe harbor” protections.

          A company like Twitter or YouTube can afford to fight a bogus takedown by leaving the content up. They have high-priced lawyers and lots of money. The average admin of a Mastodon instance, on the other hand, doesn’t have those same resources.

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

        • identicon
          Anonymous Coward, 18 Jun 2020 @ 12:51pm

          Re: Re: Re: Time to shut down Twitter

          The Problem is not Twitter, it is the law and its abuse by in other people. A company cannot adjudicate the legality of any claim that it receives, unless it is prepared to risk statutory damage for any mistake it makes in not taking down material. The only reasonable action is to take down the disputed material, as the law requires.

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

        • identicon
          Anonymous Coward, 18 Jun 2020 @ 10:29pm

          Re: Re: Re: Time to shut down Twitter

          What if smaller companies were to use human reviews, who could provide an actual explanation of what happened, instead of a useless automated form page?

          Either the total amount of content goes down, or the total amount of content is the same. If the total amount of content is the same, then human moderation is not feasible regardless of how many companies there are. If the total amount of content is drastically reduced, then human moderation is feasible regardless of how many companies there are. Either way, you have not gained anything in terms of "ease of human (or automated) moderation" by increasing the number of companies.

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

        • icon
          PaulT (profile), 19 Jun 2020 @ 6:49am

          Re: Re: Re: Time to shut down Twitter

          "What if smaller companies were to use human reviews, who could provide an actual explanation of what happened, instead of a useless automated form page?"

          OK. How would you prevent other platforms from growing naturally to the point where this is impossible, as Twitter has? How would you do this without destroying free speech rights?

          "If there wasn't so much of a monopoly"

          As we keep telling you pricks, there isn't one. It's not Twitter's fault that Gab is full of racist idiots that prevent normal people from signing up.

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

    • icon
      PaulT (profile), 19 Jun 2020 @ 6:43am

      Re: Time to shut down Twitter

      "Is it time to shut down Twitter or at least move to another platform?"

      Maybe, but that's down to the users. They're free to move whenever they want. It's the idiots trying to force something else that are the issue.

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

  • identicon
    Anonymous Coward, 18 Jun 2020 @ 11:06am

    Is it time to shut down Twitter or at least move to another platform?

    My (tending-to-Libertarian) perspective is that too many people aren't willing to give other people any alternatives, once they've made their own choice.

    Twitter can do what it likes. That includes deleting any antifa, maga, pro-Bump, or pro-Triden posts. (They could even delete libertarian posts, which are naturally disjoint from any of the other named groupings.)

    I can't move to another platform, I never went to Twitter in the first place. (I'm no journalist, nor yet a working scientific researcher.) But anyone else is (and should be) free to move from/to Twitter, for whatever they get out of it.

    It seems to me, though, that the only effective moderation is community-driven: that companies like Google and Amazon could build communities based on posts liked and disliked: so the antifa hatemongers and neo-nazis could post all day, without either seeing each others' posts, or even knowing what each other didn't see. It would take most of the fun away from trolling to know that the only folk who were seeing you were other trolls.

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

    • icon
      Stephen T. Stone (profile), 18 Jun 2020 @ 12:14pm

      companies like Google and Amazon could build communities based on posts liked and disliked

      What happens when communities overlap, though? Anime fans don’t all march in lockstep vis-á-vis their political views. How could Twitter, for example, filter conservative anime fans out of a liberal anime fan’s timeline without its filters hitting false positives? What happens if the filters silence someone in, say, an antifascist group who doesn’t share the same media interests as the others in that group?

      I like that you’re trying to think of new ideas, but you need consider possible flaws and loopholes to your idea. Think about how people might exploit your idea for their own ends. Would the work needed to prevent/mitigate those exploits be worth it?

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

  • icon
    crinisen (profile), 18 Jun 2020 @ 12:18pm

    Takedown Challenges in progess?

    I might have missed them, but is there anyone (ok anyone close to sane) challenging the takedown provision on first amendment grounds? I don't even recall if anyone tried before it rolled out as unconstitutional per-se but even if they had it seems obvious that any assumptions used there might be invalid.

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

    • identicon
      Anonymous Coward, 18 Jun 2020 @ 12:46pm

      Re: Takedown Challenges in progess?

      The first amendment is applicable toward the US government; fed, state, local, etc. It is not applicable toward private enterprise.

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

      • icon
        Anonymous Anonymous Coward (profile), 18 Jun 2020 @ 1:37pm

        Re: Re: Takedown Challenges in progess?

        As pointed out in the article, the private platforms are acting in response to a law, which is in fact from the government. Since that law requires takedowns even for illegitimate reasons at the request of third parties, and there is no due process in the process, it could be argued that it is the government mandating censorship , rather than a platform performing moderation.

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

        • icon
          crinisen (profile), 18 Jun 2020 @ 1:53pm

          Re: Re: Re: Takedown Challenges in progess?

          This is basically what I meant. Someone suing the Government saying their First or Fifth Amendment rights were harmed because the Government placed a law that puts liability on a third party if they don't censor based on an accusation. However I already see a potential issue with this as someone could say they already have that liability, this just gives them a quicker out and thus the law doesn't "censor".

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

  • identicon
    Anonymous Coward, 18 Jun 2020 @ 12:29pm

    First amendment?

    Mike,

    You repeatedly talk of how the DCMA poses first amendment issues, but isn't there also a fourteenth amendment issue? Possibly a much bigger one. After all, here we see a pretty much government mandated punishment with no due process whatsoever (and damn near no process at all). There was no trial, no right to refute, no right to effective appeal. No right to even know what you're accused of doing.

    Isn't that a pretty direct 14th amendment violation?

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

    • identicon
      Anonymous Coward, 18 Jun 2020 @ 12:49pm

      Re: First amendment?

      You have noticed that the words and the actions are not in sync so to speak, but it is only for certain people that the laws do not apply.

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

  • icon
    ECA (profile), 18 Jun 2020 @ 12:56pm

    Cant wait.

    That a person say ".....,...,m.........."
    Anything, that can be quoted back to another source, even a song or movie..
    And you will get a DMCA.

    We already have STATES declaring that the Laws are Copy written..
    "If you want a copy that will be $5 per page, with a Min 20 pages."

    "Ignorance of the law is no excuse..."
    Then you pay the $5 per page not me....At least give me a copy so I know what Im screwing up.

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

    • icon
      ECA (profile), 18 Jun 2020 @ 12:58pm

      Re: Cant wait.

      Why is it Im TOLD the law, but never get to read the book(s)..
      Convoluted piles of monkey poo??
      Stuff that hasnt changed in 100+ years and is obsolete?
      Changes that Favor certain groups over others??

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

  • identicon
    Anonymous Coward, 18 Jun 2020 @ 1:26pm

    What happens when communities overlap, though? Anime fans don’t all march in lockstep vis-á-vis their political views. How could Twitter, for example, filter conservative anime fans out of a liberal anime fan’s timeline without its filters hitting false positives? What happens if the filters silence someone in, say, an antifascist group who doesn’t share the same media interests as the others in that group?

    The ideal would be that off-topic posts would be hidden--any kind of politics would be hidden from Anime tags. The more subtle benefit would be that the onus would be emphatically on posters to send to the right topic. If your posts are being hidden from the Anime group (and only shown to Antifa browsers), then it is not Twitter's fault for censoring you, but your fault for posting to the wrong tag.

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

    • icon
      Stephen T. Stone (profile), 18 Jun 2020 @ 1:56pm

      Please use the Reply function next time.

      Both seasons of Ghost in the Shell: Stand-Alone Complex are politically charged action-dramas. The second season, for example, has an overarching storyline involving refugees. A keyword filter set to catch political terms might pick out “refugees” and hide a post with that word even though the post only talks about the storylines of GITS:SAC. How could someone possibly discuss the storylines of that show without activating the filters?

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

  • identicon
    Anonymous Coward, 18 Jun 2020 @ 2:20pm

    Well, were the videos taken down for the music (used with permission)? Or were the notices sent by some service representing the rights of... Chef Andrés?

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

    • identicon
      Rocky, 18 Jun 2020 @ 3:35pm

      Re:

      Heck, considering to the lengths some go I wouldn't be surprised if an image-stock company thought his plating infringed some copyrighted photo of food.

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

  • icon
    That Anonymous Coward (profile), 18 Jun 2020 @ 5:24pm

    The greatest trick the DMCA ever pulled was making people think the platform screwed them & not some stupidly written law that is completely lopsided in its heavy handed approach to protect imaginary dollars being lost.

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

  • icon
    vadim (profile), 18 Jun 2020 @ 6:48pm

    DMCA Takedowns

    The only way to stop this abuse of DMCA is to start using it against lawmakers themselves.
    People need to start send DMCA takedown notices to all material published by lawmakers, to let them taste their own medicine....
    The change will come rapidly.

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

  • icon
    Zane (profile), 19 Jun 2020 @ 12:59am

    Artists fault

    I don’t see this as a copyright issue. Only the copyright holder or someone authorised to act for him can make such requests.
    If the person didn’t have any right to make the DMCA request, then Twitter should take some action against the person who made the takedown request. It sounds like that is not the issue here though.

    It seems that the artist wanted DMCA takedown requests but forgot he had already given permission (or not told the person acting for him) – well that is an issue with the artists actions. An artist doesn’t have to do takedown requests – this artist obviously wants control of how his work is used, otherwise why do any takedown requests?

    I get how passionate you are against copyright. But there are limits to how much you can blame copyright for everything. Twitter had to take a copyright holders claim that a person doesn’t have rights to post content at face value. Maybe there does need to be a penalty for those who make inaccurate requests, or those like this artist who says he did give permission, but wasted everyones time by doing a DMCA request anyway.

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

    • identicon
      Anonymous Coward, 19 Jun 2020 @ 1:34am

      Re: Artists fault

      But there are limits to how much you can blame copyright for everything.

      Funny, because so far there hasn't been any limits for copyright to blame everything.

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

    • icon
      Stephen T. Stone (profile), 19 Jun 2020 @ 5:45am

      If the person didn’t have any right to make the DMCA request, then Twitter should take some action against the person who made the takedown request.

      The DMCA’s provisions for filing false DMCA claims have no teeth; that lack of bite is why Twitter isn’t going to do shit about false DMCA claims.

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

    • identicon
      Anonymous Coward, 19 Jun 2020 @ 5:51am

      Re: Artists fault

      You say "Twitter should take some action" ... but they can't, legally. There is no provision in copyright law for the service providers to do anything but accept the takedown demands as having been made in good faith by the appropriate parties. Providers can ignore the demands which they believe to be invalid, but only at their own peril. Each provider sets their own standards based on the risk they are willing to shoulder, which is not very much.

      The DMCA also fails to provide any accommodation for licensed music. So when an user has permission, as this one did, it does not matter; there is simply no way to register that license and ward off further takedowns. Anyone can still demand and get a takedown, because the service provider is obligated to treat it as prima facie legitimate, as well as to register a "strike" against the alleged infringer, leading to termination of the user's account, even if the user successfully challenges the takedown and gets the content reinstated.

      Then there are the providers' own non-DMCA copyright enforcement systems which have separate rules and procedures, e.g. YouTube's content ID, which is just as lopsided in favor of the wrong parties.

      So yes, it is very much a copyright (law) problem.

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

      • icon
        Zane (profile), 20 Jun 2020 @ 6:45am

        Re: Re: Artists fault

        The DMCA also fails to provide any accommodation for licensed music. So when an user has permission, as this one did, it does not matter; there is simply no way to register that license and ward off further takedowns

        DMCA takedowns can only be initiated by the copyright holder or someone representing his wishes. It's a given that most copyright holders would be aware of who they had licensed content to. I'm sure Twitter has the resources to sue anyone who are making wrongful takedowns requests. So yes there are legal avenues. Although I'm not convinced it really is a significant issue, but if it was a few targetted lawsuits would make certain people do some checks first.
        Indeed wouldn't you just go to the copyright holder who you licenced the material to and say "hey you did a takedown request - but you shouldn't - I've got permission." who then should cancel the takedown.

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

        • identicon
          Anonymous Coward, 20 Jun 2020 @ 8:26pm

          Re: Re: Re: Artists fault

          It's a given that most copyright holders would be aware of who they had licensed content to

          Not really. There's plenty of cases mentioned on Techdirt - and other sites - where copyright holders just outright mess up on what they demand takedowns on. For what it's worth, Viacom sued YouTube because they demanded YouTube to take down content... posted by Viacom.

          I'm sure Twitter has the resources to sue anyone who are making wrongful takedowns requests

          Let's say they do - why would Twitter do so? It doesn't cost Twitter as much to comply with taking down user-generated content.

          So yes there are legal avenues

          Which are about as useful as a ship's captain asking surviving passengers from a shipwreck to raise their hand if they didn't make it off the ship safely.

          Indeed wouldn't you just go to the copyright holder who you licenced the material to and say "hey you did a takedown request - but you shouldn't - I've got permission." who then should cancel the takedown

          Or they double down and force you to take the matter to court, which is unlikely given your far, far limited resources compared to theirs.

          You seem to really, really want to break your back carrying copyright law's water.

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

    • identicon
      Anonymous Coward, 19 Jun 2020 @ 7:21am

      Re: Artists fault

      If the person didn’t have any right to make the DMCA request, then Twitter should take some action against the person who made the takedown request.

      Twitter is a third party in copyright disputes, and does not have the information needed to evaluate claims,and possibly lacks standing to bring a claim as they are not the injured part. The poster is the injured party when false claims are made, and how many of those can afford to bring legal action?

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

      • icon
        Zane (profile), 20 Jun 2020 @ 6:54am

        Re: Re: Artists fault

        Twitter or some other body could fund action in cooperation of the "injured party". Just a few test cases would be enough to put an end to the issue (if it really exists). An invalid takedown request is perjury - and as such anyone making a false takedown requests can be pursued through the courts.

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

  • This comment has been flagged by the community. Click here to show it
    identicon
    AC, 19 Jun 2020 @ 7:33am

    Typical

    Mike:The DMCA takedown system is broken. Also Mike: Anyone who wants to change the DMCA takedown system are corrupt copyright maximalists. *Sigh* You've gotten really lazy, Mike.

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

    • identicon
      TFG, 19 Jun 2020 @ 9:02am

      Re: Typical

      As per usual, you misrepresent everything said. You've never been not lazy, AC.

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

    • icon
      Mike Masnick (profile), 20 Jun 2020 @ 11:08pm

      Re: Typical

      Anyone who wants to change the DMCA takedown system are corrupt copyright maximalists.

      I have not said this. There's a weird cohort of people who insist that I don't want changes to the DMCA. They're wrong. I want massive changes to the DMCA.

      However, the only person currently pursuing changes to the DMCA is Thom Tillis who ABSOLUTELY IS a copyright maximalist. I'd be thrilled if other people in Congress wanted to actually fix the DMCA.

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


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