We've seen all sorts of problems with the DMCA's notice and takedown system that is frequently abused. Many companies, either because they want to avoid any risk of liability or because they don't actually understand the details of the law, resort to a stance of automatically taking down anything upon receipt of a takedown notice, no matter how bogus. Some companies have gotten much better at reviewing the details of takedown notices before agreeing to just take down the content. However, some are going even further in trying to find that right balance. A little over a year ago, we wrote about Github moving to a system whereby the company will notify
users of DMCA notices first, and give them a chance to modify the code before
it's taken down.
Now it appears that the (really awesome) crowdfunding site Patreon is doing something similar, notifying users before taking down any content
We do a lot of user research here at Patreon to improve our product, and even our non-product services. When asked about DMCA notices, one thing that many creators mentioned is that they just wanted to be warned and have the option to act on it themselves instead of having an automated system remove the content.
As a result, we are giving creators 48 hours to handle a DMCA notice on their own before we step in to take action ourselves. This does increase our legal risk, as the “expeditious” removal speed required by the DMCA is not very clear, but we feel very strongly about warning our creators and giving them a chance to act.
Sometimes a DMCA notice requires removal of specific content on a creator’s page. In that case we tell the creator that they have 48 hours to remove the content themselves before we will remove it for them.
As I noted when Github made its change, this move is great, even if it's a little surprising. We've long advocated for a system that is a "notice and notice" system, rather than a "notice and takedown." Under such a regime, things would act much more like the way Github and Patreon are now handling things -- giving the user notice
to either make changes or counternotice the request before
the content is actually taken down. As Patreon's lawyer notes, this does increase the liability to Patreon, because someone certainly could sue, and say that the 48 hours doesn't meet the DMCA's "expeditious" requirement for removals. However, if more companies move to a system like Patreon's and Github's, perhaps we could move the norm from today's notice and automatic takedown, to one that is effectively "notice and notice," which would lead to many fewer malicious takedowns.
Patreon is also doing its best to help users understand how to properly provide a counternotice (also something that Github did), but even going a step beyond that, pointing users to discounted legal support if they want a lawyer to review a counternotice:
We also forward them the DMCA notice we received and specific instructions on how to send a counter-notice. Sending a counter-notice carries a lot of legal risk for creators, so we have partnered with attorneys who represent creators to offer a guaranteed flat rate of $350 for a counter-notice review to take some of the uncertainty out of the process. If you aren’t using an attorney, then counter-notice instructions can be confusing, so we’ve made every effort to simplify them.
While you might assume that not many people will want to pay $350 -- if it's a Patreon user who's making a lot more money than that, it could obviously be well worth it.
One other feature of Patreon's new DMCA policy that's pretty interesting, and as far as I know, totally unique in the space, is to actively help
users who the company feels it needs to takedown their entire page, but who it doesn't feel are engaged in "blatant piracy," to immediately set up a new page:
Unfortunately, in other cases a DMCA notice requires removal of a creator’s entire page. When the notice is for derivative works, and not blatant piracy, we are always happy to have the creator come back to Patreon with a new page. Many creators take their first steps by using others’ content as a starting point. They sometimes create content that isn’t protected by fair use, but still requires huge amounts of hard work and talent. In those cases, we encourage them to come back to make a new page and use those skills to create original works.
To help facilitate this we also send them a CSV file of all of their patrons and encourage them to create a new Patreon page immediately so they can start migrating patrons in the 48 hours before we take their page down.
I will say that this part, at the very least, has me a little
confused. If the work is that unique, then there should be a pretty strong fair use argument in response -- and the DMCA wouldn't "require" the removal of the page. But it is a legally wishy-washy area, so I can see why Patreon might take this stance. Of course, as we saw with the recent Cox/BMG legal fight
, the reason Cox lost its DMCA safe harbor protections was because it would automatically help to bring back on customers it had cut off. That's a slightly
different situation, because it involved the "repeat infringer" policy, rather than a response to a single DMCA takedown request -- but again it shows that Patreon is at least shouldering some increased legal liability in the belief that its users deserve a better overall experience than the default manner in which the DMCA process encourages companies to act.
Kudos to Patreon for taking this step, though it really demonstrates (yet again) how out of step with reality the DMCA is today, in that such user-friendly policies actually put the company at greater legal risk.