Somehow I missed this (and I’m surprised it didn’t get much attention) but last month was the 25th anniversary of the Digital Millennium Copyright Act (DMCA) being signed into law. I only spotted it because The Register just had an article looking back at 25 years of the DMCA.
Given how central to various internet debates the DMCA was for the first decade of the 2000s, it’s kind of amazing how little attention it has received over the past few years, as more and more attention has shifted away from the DMCA and towards other aspects of internet policy, from Section 230 of the CDA to new attempts to regulate the internet like KOSA or the Earn It Act.
But, the DMCA is still a really important law, and its history is important as well. While many people know that the DMCA was passed to get the US in compliance with the 1996 World Intellectual Property Act, the reality is more nefarious and problematic. Bruce Lehman, the Assistant Secretary of Commerce and USPTO boss under President Bill Clinton, effectively created the concept of the DMCA in the early 90s, and was unable to get Congress to pass it.
As he (somewhat gleefully) admitted at a conference 10 years ago (on the 15th anniversary), he deliberately then went to Geneva to engineer the WIPO Copyright Treaty to force the US Congress to endorse his DMCA concept. This sort of policy laundering through international treaties has become important, especially on the copyright front, even as it raises serious questions about sovereignty.
In the early 2000s, the internet freedom crowd universally hated the idea of the DMCA and called for it to be revoked. However, as time has gone by, it’s become clear that while the DMCA is mostly problematic, there are a few elements that have been helpful to the internet (hint: they’re the parts that the legacy copyright industry is still trying desperately to change).
The DMCA had two major components that people talk about: 1201 and 512. There were other parts of the law, but they were kind of meaningless unless you’re interested in vessel hull designs and stuff.
512 is the part that probably is most well known and gets talked about most often. It’s the part with the “safe harbors” that say that if you host user generated content and have a registered DMCA agent with the Copyright Office, if a copyright holder finds an infringing work on your platform, they can send a takedown notice to get it taken down, and if you then take it down (the uploader can counternotice), then you can’t be held liable for the alleged infringement.
This setup has a few pros, but many cons. On the plus side, it made it safe for websites to allow people to post all kinds of content without (much) fear of a copyright lawsuit. To some extent, it helped make it possible for social media and other user-generated content sites to exist. On the minus side, though, it basically became a tool for mass censorship. Because it was basically the only law around that was structured in a way that put tremendous pressure on websites to remove content upon merely a notice, the DMCA takedown process has been regularly abused to remove (or attempt to remove) all kinds of non-infringing content.
I still think that the DMCA’s notice-and-takedown provisions create a huge 1st Amendment problem, in that they put tremendous government pressure on websites to remove content based entirely on the say-so of whoever wants the content removed, and not based on an official adjudication by a court as to whether or not something is actually infringing. In practice that has meant a ton of overblocking.
For what it’s worth, the boundaries of 512’s safe harbors were also somewhat unclear, which has resulted in a bunch of litigation about just how much it actually protects, including the famous case filed by Viacom against YouTube, which YouTube eventually won (though, hilariously, at one point Viacom was forced to admit that about 100 of the videos it was suing over, it had uploaded itself). That case helped to establish that the 512 safe harbors really did protect sites like YouTube.
Of course, in the years since, the copyright industry has continued to sue, and they continue to act like the DMCA actually requires universal licensing, even though it literally does not.
It still seems that it would have been much clearer, smarter, better, and more in-line with the 1st Amendment, if we didn’t have a separate DMCA safe harbor (which requires sites to meet certain conditions, and abide by takedown demands to retain the safe harbor), and just included copyright law under Section 230 of the Communications Decency Act. Section 230 currently exempts intellectual property law, which is why the copyright claims fall under the DMCA safe harbors, rather than 230’s broad immunity. But if copyright claims were covered by 230, it would be much clearer that websites are protected.
So, to a large extent, 512 has been problematic, in that it has enabled the vast suppression of protected speech, and has also resulted in a ton of lawsuits over its boundaries. But, for the most part, the lawsuits have been decided in ways that protect the internet and speech. And, getting rid of 512 would probably make things much worse (unless Section 230 was changed to cover copyright, which seems unlikely to happen). On top of that, most proposed changes to 512 would inevitably make it much, much worse.
Then there’s Section 1201. That’s the anti-circumvention part of the DMCA, and seems to be almost entirely evil. This is the DRM part of the law, that basically said doing anything related to getting around “technical protection measures,” was itself copyright infringement, even if the reason you were getting around the “TPM” had nothing whatsoever to do with copyright infringement.
This has resulted in all sorts of nonsense, and serves no real purpose other than to enable companies to abuse the law to enable lock-in and remove consumer rights. The weak triennial review process, by which the Librarian of Congress agrees to exempts certain technologies from 1201 has gotten better over time, but has not fixed the fundamental problems of 1201, which is inherently a law that says you can’t modify products you actually own.
I still think that on the whole, the DMCA has been mostly negative, but the safe harbors have at least served to make at least parts of the internet good, enabling many of the online services we all enjoy today to exist (even if the lawsuits killed a few companies along the way). I also think that any attempt to open it up today would almost certainly result in something way, way, way worse.
However, I do wish that as more and more lawmakers (not just in the US, but around the world), keep moving towards DMCA-like approaches to other kinds of content, that they would actually take a look at just how disastrous the notice-and-takedown provisions of the DMCA have been for protected speech, and how widely abused they are to take down valuable, protected speech.
Back in May of this year, the USPTO put out a request for public comments from interested parties in how to modernize its policies and/or copyright law to combat counterfeiting and online piracy. The world’s easiest prediction would have been that the copyright industries would request more stringent copyright rules and heavier and faster policing of copyright by literally anyone other than those from the copyright industries. That they did so is simply par for the course.
But one of the requests that stood out came from several major professional sports leagues, such as the UFC, the NBA, and NFL. Those leagues complain that the DMCA takedown process both doesn’t work for sites that aren’t hosted in the United States and that the takedown process takes too long when it comes to live sports broadcasts.
The Digital Millennium Copyright Act of 1998 requires websites to “expeditiously” remove infringing material upon being notified of its existence. But pirated livestreams of sports events often aren’t taken down while the events are ongoing, said comments submitted last week by Ultimate Fighting Championship, the National Basketball Association, and National Football League.
The leagues urged the US “to establish that, in the case of live content, the requirement to ‘expeditiously’ remove infringing content means that content must be removed ‘instantaneously or near-instantaneously’ in response to a takedown request.” The leagues claimed the change “would be a relatively modest and non-controversial update to the DMCA that could be included in the broader reforms being considered by Congress or could be addressed separately.” They also want stricter “verification measures before a user is permitted to livestream.”
I’ll leave aside the simple fact that “near instantaneous” is still ambiguous for the moment. What these leagues are asking for simply isn’t realistic. There isn’t a bench of copyright police out there at these ISPs with nothing to do just waiting with an itchy trigger finger to block the next site immediately that David Stern requests they block. Nor should they be, frankly. The existing law provides for takedowns, but the reality is that these leagues either are plenty successful and shouldn’t be worrying much about these streams of events, because those streaming wouldn’t by legit buyers anyway, or this is such a huge problem that it becomes a business model issue, rather than a technology issue.
As for this being a “modest and non-controversial update” to the law to remove the time for review of the requested site-block, well, you need only review the history of site-blocking regimes around the world to realize what a laughable statement that is. That link will take you to gobs of stories about countries that do this kind of regular and fast site-blocking and all of the corruption, censorship, and feature-creeping that has come along for the ride. All while, by the way, collateral damage goes up in those countries and the rates of piracy barely move.
So are these leagues really wanting their public comment to be that the problem with American copyright law is that we aren’t similar enough to the Russian and Chinese regimes? Really?
Fortunately, some tech industry groups are providing rebuttals. The Computer & Communications Industry Association (CCIA) pointed out that blanket speed-run takedown rules put upon ISPs and websites would create for them a massive chilling effect.
Under both existing copyright law and trademark law, there is no obligation on the part of online service providers to proactively monitor or enforce infringements. Rather, this is a matter of discretion and policy for each service, and should remain that way. The imposition of proactive enforcement obligations would be less effective, would inevitably negatively impact free speech and legitimate trade, and would introduce untold unintended consequences—digital services would be disincentivized from innovating and would do only what the law required, benefiting no one.
The CCIA also told the US that “the most effective way to prevent infringement is to ensure that members of the public, most of whom want to pay for content, can lawfully consume works digitally whenever and wherever they want.”
And because this train never fails to be on time, the Premier League’s answer to that is, of course, “make the robots do it.”
The US received comments about Automated Content Recognition (ACR) systems from England’s Premier League. ACR systems can “prevent unauthorized streams being uploaded onto the Internet,” the league said.
YouTube and Facebook already have such systems, the Premier League said. But for platforms without ACR, the Premier League said it wants live takedown tools that rights owners would operate themselves.
Left unsaid in that comment is the notion that these automated systems absolutely suck and cause a ton of false-positives in their takedowns, which is a nicer way of saying that they erroneously and preemptively block perfectly legal speech all the damned time. Stories about automated copyright bots taking down legitimate content are legion. Suggesting their wider use combined with instantaneous censorship is absurd.
If the leagues want to see improvements in our copyright regime, it would be nice if they came to the table with some actually new and nuanced ideas. The above are mere retreads, combined with a request for speed that doesn’t comport with reality. Do better, leagues.
To be honest, I’m somewhat amazed that more copyright lawsuits haven’t been filed against Twitter yet. There have been multiple reports of how the company’s DMCA takedown response systems have been broken/ignored since Musk took over. Without looking for it, I’ve seen full length high def movies show up in my Twitter feed (including movies still in theaters).
Still, it’s a bit surprising that the first such lawsuit is not from a Hollywood studio, but rather a big giant list of music publishers. And I’m pretty sure that Twitter has a strong case, if Elon bothers to hire competent copyright attorneys.
The backstory here is that music publishers (who are different than the record labels, even if some are connected to labels) have been demanding that Twitter license content for years. And, for years, Twitter correctly pointed out that it abides by the DMCA, and takes down copyright-infringing works when it receives a proper takedown notice. This is exactly what the law allows them to do, and it’s not as if Twitter is where people go to listen to music (and what music does get posted is generally hosted elsewhere and posted in a promotional manner). So, really, the idea that Twitter had to get a license from the publishers was always a stretch.
Still, almost immediately after Elon announced his bid for Twitter, the music publishers started agitating for him to license compositions. But, this is Elon Musk we’re talking about. The man won’t even pay his rent, or his cloud computing bills. Did anyone actually think he would pay for publisher licenses he doesn’t even need? So, it was little surprise when there were reports earlier this year that the talks had “stalled.”
And now there’s a lawsuit. But it doesn’t seem like a particularly strong one:
This is a civil action seeking damages and injunctive relief for Twitter’s willful copyright infringement. Twitter fuels its business with countless infringing copies of musical compositions, violating Publishers’ and others’ exclusive rights under copyright law. While numerous Twitter competitors recognize the need for proper licenses and agreements for the use of musical compositions on their platforms, Twitter does not, and instead breeds massive copyright infringement that harms music creators.
I mean, first of all… what? I’ve been an avid Twitter users from 2008 through 2022 and I honestly can’t recall ever encountering music in any significant way, or if I did, it was links to licensed sources such as Spotify, Apple Music, YouTube or whatever.
The only reason to do such a license is if you’re actually hosting music (and even then the DMCA should protect you, but most sites choose to get a license mainly to get the industry to stop constantly screaming at them and so that they don’t have to constantly play DMCA takedown whac-a-mole).
And, some of this is just nonsense:
Twitter knows perfectly well that neither it nor users of the Twitter platform have secured licenses for the rampant use of music being made on its platform as complained of herein. Nonetheless, in connection with its highly interactive platform, Twitter consistently and knowingly hosts and streams infringing copies of musical compositions, including ones uploaded by or streamed to Tennessee residents and including specific infringing material that Twitter knows is infringing. Twitter also routinely continues to provide specific known repeat infringers with use of the Twitter platform, which they use for more infringement.
The standard here has to be specific, actual knowledge of infringing works, not general knowledge that some people on the platform sometimes post infringing works. And while the paragraph above alleges “specific infringing material that Twitter knows is infringing,” it’s not actually that simple. That’s the same sort of argument that Viacom made against YouTube and failed with. In that case, Viacom also insisted that YouTube had to know these works were infringing and the court said that’s not how it works. And it’s even more limited in this case because the publishers say that Twitter “knows” that its “users” have not secured licenses, but does not suggest how they know this at all. It’s entirely possible that some of the users have, in fact, secured licenses. Or, as noted, that they’re just posting videos from elsewhere that is licensed. The publishers know this, so this is just misleading nonsense.
Twitter profits handsomely from its infringement of Publishers’ repertoires of musical compositions. The audio and audio-visual recordings embodying those compositions attract and retain users (both account holders and visitors) and drive engagement, thereby furthering Twitter’s lucrative advertising business and other revenue streams.
I doubt this very much. First, again, who goes to Twitter for the music? Second, (also, again) the vast majority of music is linked to on other sites, not hosted by Twitter. Yes, Twitter hosts some video, and yes, Elon expanded how much can be posted, but it’s still a stretch to argue that Twitter is “profiting” from music on its platform.
This is just typical National Music Publishers Association (NMPA) nonsense, in which they falsely insist that no one does anything for any reason except to seek out their music, and that they should be paid for every listen.
Still, there are some things in here that suggest that Musk, in ways that only an incompetent Musk would do, has made his own situation worse. The key bits:
Twitter has repeatedly failed to take the most basic step of expeditiously removing, or disabling access to, the infringing material identified by the infringement notices. Twitter has also continued to assist known repeat infringers with their infringement. Those repeat offenders do not face a realistic threat of Twitter terminating their accounts and thus the cycle of infringement continues across the Twitter platform.
If that’s actually what’s happening, then that would be problematic. The complaint does point to an example of “a known repeat infringer” which at least raises some questions:
The screenshot below illustrates Twitter’s monetization of infringing content. This infringing tweet is from a known repeat infringer who has been the subject of at least nine infringement notices to Twitter, identifying at least fourteen infringing tweets, which contained unauthorized copies of Publishers’ musical compositions. Directly below the infringing tweet is a paid “Promoted” tweet selected by Twitter. To the right of the infringing tweet is a paid “Promoted” account recommended by Twitter. Twitter’s account recommendations also include another known repeat infringer, Twitter Account A, identified in paragraph 166 below.
I’m at least a little confused by this. From what I see there, it’s not at all clear that the original tweet is hosted audio. It’s possible, but normally when there’s a video player it shows with the indicators of a video player. And, honestly, the fact that there are other promoted tweets or recommendations is mostly meaningless for the copyright issues at play.
As for the repeat infringer question, the DMCA requires that companies have a “reasonably implemented” repeat infringer policy, but does not specify exactly how it works, so just claiming that there are repeat infringers on the site, without more info, does not prove that Twitter would be liable for infringement (it could be, I’m just noting that the complaint is pretty weak on this point). The legal battles around this are always about whether or not a particular policy is reasonably implemented, and without more info it’s difficult to know if Twitter’s would be.
Later in the lawsuit there are lots of complaints about how long it takes Twitter to review DMCA takedowns, which might be indicative of a real problem… but might not be:
The precise extent of Twitter’s lengthy delays will be the subject of discovery and analysis, including through a review of Twitter’s records. In the meantime, by way of an example, the musical composition “What a Wonderful World,” written by Bob Thiele and George David Weiss and performed by Louis Armstrong, is a timeless classic, chosen by Rolling Stone in September 2021 as one of the top 200 songs of all time. Unauthorized audio and audio-visual recordings that embody “What a Wonderful World” are rampant on the Twitter platform, and Twitter has failed repeatedly to take them down in an expeditious manner. Across all the NMPA Notices sent to Twitter that identified the musical composition for “What a Wonderful World” by name, along with precise URLs for the tweets containing the infringing uses of that composition, Twitter failed to take down at least 240 infringing tweets incorporating “What a Wonderful World” within 14 days after the NMPA Notice was sent. Even more troubling, over 120 of those tweets were still available at least a month after the associated NMPA notice was sent to Twitter, and more than two dozen tweets were still available on Twitter over two months after NMPA sent a notice identifying them as infringing.
Seems like an odd choice to use, as an example, a song that is literally 56 years old, which at the time it was published had a maximum copyright term of 56 years? Yes, the song is still under copyright thanks to endless copyright term extensions, but… still. You’d think they’d pick another song.
Also, the lawsuit misrepresents Twitter’s marketing claims about Twitter and music, which tend to be about communities of fans, not posting actual music (again, that’s not really a Twitter thing).
Twitter has been outspoken about how important music is to Twitter and users of its platform. In its marketing, blogs, or tweets, Twitter stated:
a. “[M]usic is the largest community” on Twitter’s platform, where “people are more likely to follow a music-related account than any other type of account on Twitter.”
b. The Twitter platform is “the ultimate connection to the music world for fans and brands.”
c. “Every day, more than 30 million tweets are published about music around the world . . . [which is] more than 20,000 every minute.”
Twitter even has its own “@TwitterMusic” account on its platform dedicated to top music trends, which has a massive following of 11.5 million users
I mean, literally none of that has anything to do with infringing content. It’s mostly about music fans and connecting with artists. Not listening to music on the platform. It’s just designed to sound bad, despite being wholly unrelated to the actual copyright question.
Now, there are some things that Elon has done that may cause him trouble in court. Recently departed trust & safety boss Ella Irwin (stupidly) announced that the company wouldn’t suspend users unless “it is clear the user knew the content was illegal.”
While that may seem commendable in some ways, it might conflict with the DMCA’s requirements regarding repeat infringer policies. At least, the NMPA sure claims it does:
Twitter has told users of its platform that “[w]e don’t suspend users for posting reported content unless it is clear that the user knew the content was illegal.” But Twitter’s practice is unreasonable and contrary to law. Infringement occurs as a matter of law. Direct infringement is a strict liability offense, without any requirement that the infringer know the content they post is illegal.
Except… that’s not entirely accurate by the NMPA either. While the courts have definitely moved in that direction, some still do recognize the concept of innocent infringement (and, frankly, copyright law would be a lot more reasonable if the courts went back to understanding this).
There are other Elon decisions that the complaint calls out, but some are silly and have nothing to do with the copyright questions:
Instead of grounding decisions on sound policy development and reasonable implementation, Twitter has outsourced trust and safety decisions to Twitter polls, i.e., votes among users of the Twitter platform, through a feature on the platform used for polling.
But… there is another thing the lawsuit calls out which MANY copyright lawyers freaked out about last month, when a Twitter user appeared to complain that they were being unfairly hit with copyright claims and Elon told the user to try “turning on subscriptions.”
I saw multiple copyright lawyers freak out about this and try to warn Musk that this tweet would show up in copyright lawsuits. At the time, I looked into the issue and… while it looks bad, it’s not as bad as it seems. The “Figen” account does not appear to actually be infringing on copyrights. It actually is linking to the original uploads by the original users (those might be infringing, but most did appear to be from the original creator of the work). This is a confusing bit of how Twitter works, when you can “repost” someone else’s video, but you’re really just linking to their upload.
Still, this incident shows up in the lawsuit (somewhat obliquely):
By way of another example, a user tweeted that Twitter should not suspend accounts for receiving multiple copyright notices but rather should only disable the copyrighted videos. That user asserted that the user does not earn money from the videos they share, or understand that they are copyrighted, and that copyright owners should ask Twitter users to remove the videos rather than submit notices to Twitter. Twitter replied publicly to this user, but without asking the user not to infringe, without referring the user to Twitter’s Copyright policy, and without telling the user that copyright infringement is unlawful regardless of whether the user makes money from it or realizes that a particular video is infringing. Instead, Twitter suggested that the user “consider turning on subscriptions”—a feature of Twitter Blue that garners revenue for Twitter, enables the user to receive payments from other users of the Twitter platform, and, because the infringing tweets are behind a paywall, makes it more difficult for copyright owners to find.
So, this one goes both ways. If you understand that Figen wasn’t actually infringing, then Elon’s statement isn’t so bad. But it’s not even clear that Elon realized this user wasn’t actually infringing. And if he did believe the account was infringing then… yeah… that’s bad. But, also, it’s not at all a surprise this showed up in a lawsuit.
And then there’s this:
I mean, this is another case where Elon is correct, but that plays badly if you’re in a lawsuit for ignoring DMCA takedowns, and of course the NMPA calls it out.
Twitter’s most senior executive has previously described the Digital Millennium Copyright Act (“DMCA”)—a statute that, among other things, provides for notice and takedown of infringing copyrighted material—as a “plague on humanity.”… This statement and others like it exert pressure on Twitter employees, including those in its trust and safety team, on issues relating to copyright and infringement.
So, anyway, this is not a particularly strong lawsuit, but it’s not a joke either. It’s got many aspects where Elon and his inability to shut the fuck up clearly made things worse. But it does seem like the kind of copyright lawsuit that Twitter could win if it had competent copyright litigators to handle it.
Which means, the question is: can Elon actually hire a competent copyright litigator these days?
You may recall that, back in August, we wrote about the bizarre situation of a company called “Business Casual” and its CEO, Alex Edson. Business Casual makes highly produced videos. It made a few on historical topics, including taking some public domain images and modifying them significantly to make “paralax images” that added a sort of 3D feel. Edson/Business Casual claim (credibly!) that RT Arabic, the Arabic language wing of Russia Today, owned by TV-Novosti, copied parts of some of their videos. There were some DMCA claims he filed and then a lawsuit against TV-Novosti.
All that is… perfectly reasonable?
But then, for unclear reasons, Edson decided to sue YouTube/Google as well, claiming direct infringement among other things. That lawsuit did not go well. Not well at all.
It got much more bizarre over the summer, because Edson’s lawyer, Ron Coleman (who these days seems to specialize in fighting ridiculously bad culture war lawsuits which have no chance of success) kept filing for delays on filing for permission to file an amended complaint, saying that Edson was dealing with debilitating health problems. But… the very day that he filed the third such “Edson’s ill, we need more time,” motion (directly stating that Edson “is in agonizing pain and cannot function at this time“), a very healthy looking Edson was releasing a two hour long video on YouTube (complete with a very bad Putin impersonator) explaining — poorly — some details of copyright law, and claiming that YouTube is an “anti-American” company. He also claims, in truly dramatic fashion, that YouTube’s lawyers are “pathological liars” among other things.
While YouTube’s lawyers alerted the judge to this video, the judge ignored it and still granted the extension. Coleman eventually got around to submitting the actual filing. And, right before Thanksgiving the judge ruled on it — again highlighting how truly bad the legal arguments being made are.
First, Edson/Business Casual argue that YouTube failed to apply its “repeat infringer” policy to TV-Novosti by not suspending the account (or rather, suspending it only briefly). But, as the judge notes, the DMCA’s repeat infringer policy requirement (DMCA 512(i)), are only about whether or not a website is eligible for the DMCA’s safe harbors. It’s not its very own cause of action. But Coleman seems to think it is. The judge disabuses him of this:
Plainly, the plaintiff here is attempting to assert an
independent claim against YouTube for its alleged failure to
discontinue TV-Novosti’s account in accordance with its Repeat
Infringer Policy. Lest there be any doubt on this point, the
plaintiff asserts in its motion papers that YouTube’s failure to
“terminate the accounts of repeat infringers . is why we are
here.” Pl.’s Reply at 1. But as this Court already made clear,
Business Casual “misconstrues the safe harbor provisions of the
DMCA and how [those provisions] interact with the other federal
copyright laws.” First Opinion, 2022 WL 837596, at *5. The DMCA
does not establish an affirmative cause of action. Rather, the
DMCA provides internet service providers (“ISPs”) with potential
“safe harbor” defenses that will shield ISPs from liability for
copyright infringement so long as certain statutory criteria,
including the maintenance of a policy for terminating “repeat
infringers,” are met. See Arista Records LLC v. Usenet.com,
Inc., No. 07-cv-8822, 2008 WL 4974823, at *4 (S.D.N.Y. Nov. 24,
2008); Martin v. Tumblr, Inc., No. 15-cv-8338, 2017 WL 11665339,
at *4 (S.D.N.Y. Feb. 10, 2017) (DMCA provision “does not create
a right of action, but rather creates a defense to liability, or
safe harbor”); see also 17 U.S.C. § 512(i)(l)(A) (an ISP will
qualify for the “limitations on liability established by this
section . only if the [ISP] . has adopted and reasonably
implemented” a “policy that provides for the termination” of
“repeat infringers”). Put differently, an ISP’s compliance with
the DMCA’s safe harbor provisions does not come into play until
a plaintiff pleads a viable copyright infringement claim against
the ISP in the first instance, at which point, the ISP may
assert its eligibility for a safe harbor as a defense to
liability. See Arista Records, 2008 WL 4974823, at *4 (DMCA’s
“limitations of liability apply if the provider is found to be
already liable under existing principles of law”).
In short, Business Casual cannot transform the DMCA’s
prerequisites for a safe harbor defense into the basis for an
affirmative claim against YouTube. That is not how the statute
was written, and it is not for the Court to permit a cause of
action that Congress did not create. The allegations concerning
YouTube’s failure to terminate TV-Novosti’s channels would be
relevant here only if the plaintiff had first pleaded a
plausible claim for copyright infringement, thereby shifting the
burden to YouTube to establish its entitlement to a DMCA safe
But… therein lies a problem. Because there is no plausible claim of liability for YouTube. There may well be a plausible claim against TV-Novosti, but that doesn’t magically make YouTube liable as well. Indeed, this case is complicated by the fact that Business Casual uploads its videos to YouTube granting YouTube a license to them. That doesn’t mean that TV-Novosti gets a license, but it does mean that suing YouTube for infringement (especially direct infringement) makes no sense, as it already has a license to the work, and therefore cannot be infringing:
In any event, the plaintiff’s Amended Complaint fails to
state a claim for direct copyright infringement because it is
devoid of allegations casting doubt on the existence, validity,
or enforceability of the License. As noted in the First Opinion,
“it is a hallmark principle of copyright law that licensors may
not sue their licensees for copyright infringement,” Jasper v.
Sony Music Ent., Inc., 378 F. Supp. 2d 334, 339 (S.D.N.Y. 2005),
and here, Business Casual granted to YouTube a broad License to
“use,” “reproduce, distribute, prepare derivative works [from],
display, and perform” the content in Business Casual’s YouTube
videos, see First Opinion, 2022 WL 837596, at *5. Accordingly,
under the plain language of the License, Business Casual cannot
hold YouTube directly liable for hosting or displaying video
content that Business Casual has uploaded to YouTube’s platform.
That would include the hosting or displaying of the copyrighted
video segments that appeared on TV-Novosti’s YouTube channel,
because Business Casual had authorized YouTube to display those
segments when it uploaded the Rockefeller and J.P. Morgan Videos
Business Casual tried to argue that nothing in the license allowed YouTube to then license that work to TV-Novosti, but as the judge explains, that’s not how any of this works.
But this argument misunderstands the
import of the License and the nature of YouTube’s license
defense. The relevant question here is not whether YouTube was
entitled to authorize TV-Novosti’s use of Business Casual’s
copyrighted video content. Rather, the question is whether
YouTube’s use of the plaintiff’s content — here, the display of
copyrighted video segments that Business Casual had previously
uploaded to YouTube — fell within YouTube’s broad rights as the
licensee of the plaintiff’s YouTube videos. As discussed above,
the License does cover that use.
What about contributory or vicarious infringement? No, those don’t fly either. Those things require at least some level of knowledge or profiting off of the infringement by YouTube, which is not shown at all.
Like the Original Complaint, the Amended Complaint contains
no allegation that YouTube knew of the allegedly infringing TVNovosti videos before Business Casual lodged its DMCA takedown
notices. To the contrary, the Amended Complaint alleges that TVNovosti manipulated the video content for the precise purpose of
evading YouTube’s detection. Moreover, because YouTube promptly
and permanently removed the First, Second, and Third RT Videos
from its platform once it received the plaintiff’s DMCA notices,
the Amended Complaint does not permit an inference that YouTube
acted in concert with TV-Novosti.
The Amended Complaint also fails to state a claim for
vicarious infringement. To hold a defendant vicariously liable
for another party’s infringing act, a plaintiff must allege
plausibly that the defendant “profit[ed] from [the] direct
infringement while declining to exercise a right to stop or
limit it.” Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd.,
545 U.S. 913, 930 (2005). In this case, the plaintiff’s
allegations foreclose an inference that YouTube declined to
exercise its right to stop TV-Novosti’s alleged infringement.
To the contrary, the allegations indicate that YouTube removed
the First, Second, and Third RT Videos, and thereby stopped the
alleged infringement, shortly after Business Casual notified
YouTube of its copyright concerns.
One other point that the Business Casual complaint kept making is that it took YouTube 23 days to remove one of the videos after receiving one of its DMCA takedown notices. This is used to argue that YouTube wasn’t expeditiously removing infringing works. But, this is presented out of context. As the judge makes clear:
Finally, the Amended Complaint takes issue with the fact
that YouTube removed the Second RT Video 23 days after receiving
the plaintiff’s second DMCA notice. To the extent the plaintiff
intends to suggest that the length of this 23-day period renders
YouTube secondarily liable for TV-Novosti’s infringement, such
an argument is meritless. As before, Business Casual “has not
pointed to any authority” suggesting that YouTube was obligated
to investigate Business Casual’s complaint on “a more compressed
timeline.” First Opinion, 2022 WL 837596, at *4. Moreover, the
new allegations in the Amended Complaint indicate that YouTube
spent the 23-day period actively communicating with Business
Casual and evaluating the alleged infringement, see Am. Compl.
tt 118-119, 123-126, foreclosing any inference that YouTube
simply sat back and allowed the alleged infringement to occur.
Accordingly, the purported delay in YouTube’s removal of the
Second RT Video does not support a contributory or vicarious
infringement claim against YouTube.
In other words, while it did take 23 days, much of that was spent with YouTube communicating back and forth with Business Casual to make sure the work was actually infringing. That’s not ignoring infringement, it’s making sure that it’s not incorrectly taking down non-infringing videos.
Of course, Business Casual immediately appealed, and copyright cases can be a bit of a crapshoot in the appeals court, including the 2nd Circuit. But this seems like a fairly slam dunk bullshit case by someone who does not appear to understand the fundamentals of copyright law, but seems more focused on creating a stupid culture war by misstating how copyright works.
In our somewhat limited discussions about video game publisher Bungie, our remarks about the company certainly haven’t always been positive. And perhaps that colored my thinking when I recently wrote about a DMCA takedown blitz occurring among the Destiny community, with all kinds of uploads from fans being on the receiving end of takedowns on YouTube. But Bungie insisted it wasn’t them, a claim bolstered by the fact that some of Bungie’s own official videos on its channel also got hit with takedowns. Still, the statement from the company about all of this left some room for interpretation, with Bungie indicating that these takedowns weren’t happening at “the request” of Bungie, leading plenty of folks to assume this was an automated copyright enforcement bot or a 3rd party enforcement agency going rogue.
Well, I think we can safely put that theory to rest now. Bungie has not only sued 10 “John Does” over all of this, but also used its filing to take YouTube’s DMCA takedown process to the woodshed and absolutely beat the shit out of it. The filing starts off with a description of just what happened here: new Gmail accounts created to fraudulently impersonate Bungie enforcers of copyright, strikes coming from those newly created Gmail accounts, as well as a deep campaign by those accounts to claim that the actual legit Gmail accounts used for enforcement of Bungie copyrights were the fraudulent ones.
And then the filing goes in on YouTube’s process:
Doe Defendants were able to do this because of a hole in YouTube’s DMCA-process security, which allows any person to claim to be representing any rights holder in the world for purposes of issuing a DMCA takedown.
In other words, as far as YouTube is concerned, any person, anywhere in the world, can issue takedown notices on behalf of any rights holder, anywhere. A disgruntled infringer or a competitive content producer, for example, can issue takedown notices purportedly on behalf of Disney, or Fox, or Universal—or even Google itself. All they need to do is: (1) fill out the video removal form… (2) have a Google account—including, upon information and belief, one created that same day and with fake information; and (3) fill out information and click verification buttons fraudulently certifying that they have the right to submit the takedown request, with no verification done by YouTube.
Welcome to the team, Bungie. Here at Techdirt, we’ve been shouting to the world about how wide open the DMCA notice and takedown process is to fraud and abuse for years. Nice of you folks to finally catch up.
The filing then goes into great detail about the harm this has caused Bungie. To the company’s credit, the filing details Bungie’s fairly lenient policy on what fans can share and upload when it comes to footage of the company’s products. Still, Bungie has also utilized a third party, CSC, to takedown some videos featuring music from its games. This fraudulent blitz appears to have occurred after those CSC takedowns. The filing also notes the deluge of negative press and public response due to these takedowns.
Between March 2 and March 16, CSC initiated and completed 41 DMCA takedowns of YouTube videos on Bungie’s behalf. All of them “related to music from Destiny 2’s original soundtracks,” the lawsuit said.
The YouTubers whose videos were taken down included the Doe defendants, the lawsuit said. “Beginning on or about March 17, 2022, Doe Defendants began submitting unauthorized DMCA takedown notices to YouTube for videos that allegedly infringed Bungie’s copyrights,” the complaint said. “Upon information and belief, Doe Defendants created fake [name]email@example.com Google accounts in order to submit the Fraudulent Takedown Notices.” In the notices, the defendants “identified themselves as ‘Bungie, Inc.'” or “as Bungie’s authorized agents.”
Oddly, at least one bit of communication from someone claiming to be sending false takedown notices said they did it intending to get caught so as to spotlight how shitty YouTube’s DMCA policy is.
I was directly affected by false takedowns from “David Thomson” several months ago, and many others were issued false takedowns by this person over the past several years. I believed with enough attention, Bungie might have been prompted to step in. The first few channels that were hit by takedowns didn’t seem to grab anyone’s attention, so I had to escalate the matter.
Bungie, for its part, is simply not playing around with this. The company is asking for $150k per fraudulent takedown notice sent and is seeking to unmask the ten John Does it has filed against.
So, while this is all very strange, it is clear these takedowns weren’t Bungie’s doing. It’s also very clear that everyone hates YouTube’s DMCA takedown process.
A year ago, the wonderful podcast, 99% Invisible, had a great episode exploring the history of state slogans and other statements ending up on license plates. It’s very entertaining and worth listening to. As part of it, it highlights an important free speech lawsuit, brought by George Maynard, a Jehovah’s Witness, to argue that New Hampshire’s “Live Free or Die!” motto on all license plates violated his own 1st Amendment rights in compelling him to advertise a slogan he felt went against his own religious beliefs.
It reminded me how frequently the Jehovah’s Witnesses, and their organization, the Watch Tower Bible and Tract Society, have been involved on the right side of important 1st Amendment lawsuits. And it’s why it’s so unfortunate that they’re now appearing to throw all of that away by abusing copyright law to try to stifle speech and intimidate critics. Public Citizen Litigation Group’s Paul Levy has all of the unfortunate details. He starts out by highlighting some of the other important 1st Amendment cases in the Watch Tower’s past:
Beginning with Lovell v. City of Griffin, in 1938, the Jehovah’s Witnesses began an admirable string of cases in the Supreme Court that have helped to establish the First Amendment rights that we enjoy today. I had the good fortune of being able to help them win one of the most recent, when I did a moot court for their in-house counsel, Paul Polidoro, when he was arguing Watch Tower Bible and Tract Society v. Village of Stratton in the Supreme Court, arguing for the right of Jehovah’s Witnesses to go door to door spreading their religious messages (and accepting donations) without having to provide their names. This long history of litigating to advance First Amendment protections, coupled with the Witnesses’ status as a minority religious sect that has encountered plenty of community prejudice, had always left me with a soft spot for the group.
But now they’re looking to throw all of that away. We’ve talked recently about the similar abuse of the DMCA 512(h) subpoena process to try to identify the critic of a billionaire, but here it looks like The Watch Tower folks have turned it into a systematic part of their effort to attack, intimidate, and silence critics. Levy notes that Watch Tower has filed an astounding 72 copyright subpoenas since 2017. And it appears that basically all of them are to suppress speech, rather than for any legitimate reason:
As can be seen from this list of Watch Tower copyright infringement lawsuits, Watch Tower has never used the information obtained from these subpoenas to file an infringement action. The only infringement lawsuit that Watch Tower has filed against the target of one of its DMCA subpoenas is a current case (discussed below) in which enforcement of the subpoena was denied!
Part of the problem, of course, is copyright law, which — at the strong urging of the copyright industry — inserted the very low bar for DMCA 512(h) subpoenas, making it easy to abuse them, whether for copyright trolling or for suppressing speech. And, as Levy notes, Watch Tower lawyers seem to be well aware of what they’re doing here.
The apparent attractions of using DMCA subpoenas to identify critics based on copyright claims instead of filing a John Doe lawsuit include the filing fee, which is much lower than an infringement action, and the ease of submitting an application, which involves only a pro forma affidavit that does not require the sort of allegations commonly needed for an infringement action. Indeed, Watch Tower’s in-house counsel (the same Paul Polidoro who helped develop the First Amendment right to speak anonymously) issues many of the subpoena requests himself, which can then easily be filed in the White Plains courthouse near the Watch Tower headquarters. It is only if the subpoena target finds counsel and seeks to quash the subpoena that Watch Tower has to justify its actions.
And that almost never happens. Instead, what appears to happen is that the targets of these subpoenas cave in quickly – as Watch Tower puts it “without the need for judicial intervention, including through written or oral communications with the infringer.” See ¶ 60 of this affidavit. And once they are identified, Watch Tower members have good reason to cave in, wholly apart from the merits, because Watch Tower has a program for systematically condemning “apostates” and subjecting them to “disfellowship” or shunning. This means that their friends and family members have to turn their backs on them and ignore anything they may say. For someone who has grown up in a small sect, or who has become invested in the sect by turning away from association with others, the threatened loss of their social world can be terrifying. Indeed, few bloggers can afford to defend a copyright infringement lawsuit on the merits, no matter how weak the copyright claim; and Jehovah’s Witnesses do not tend to be wealthy. So when they receive “communications” from Watch Tower, they know what they have to do to protect themselves.
Basically Watch Tower appears to know it’s abusing copyright for the sake of silencing critics and is happy about it.
That takes us to the reason for Levy’s post, which is to discuss how he’s now gotten involved in one such case:
We are now representing such an “apostate’” who fought back and won. Our client is a YouTube user who is a former member of the Jehovah’s Witnesses and who, using the pseudonym Kevin McFree, has posted a series of vlogs about the church. One of his first videos was 13 minutes long and used fragments of an as-of-that-time unpublished video made by Watch Tower that he had obtained from a confidential source. His vlog ran the excerpts and commented on them somewhat sardonically, making references that are, apparently, inside jokes in the Jehovah’s Witness community. Watch Tower Bible and Tract Society secured a 512(h) subpoena to YouTube; McFree secured excellent pro bono counsel, who successfully moved to quash. The court found fair use by analyzing the fair use factors in detail. The court drew on an earlier Watch Tower DMCA subpoena case, in which the target of a subpoena to Reddit was able to secure representation by the Electronic Frontier Foundation and got the subpoena quashed, also on fair use grounds.
While the subpoena case was still pending, Watch Tower had sued McFree for copyright infringement. McFree had been unable to obtain pro bono counsel to defend against that law suit, and made the mistake of telling Watch Tower that. Armed with that knowledge, Watch Tower, instead of filing an appeal from its loss in the subpoena case, where it would have had to litigate against counsel, revved up its infringement lawsuit, presumably hoping to be able to overwhelm an anonymous pro se defendant, and maybe hoping that a different federal judge might have a different take on the fair use issue. And it has tried to avoid having to relitigate the subpoena issue by asking to be allowed to effect service by email.
The complaint is replete with signs of indiscriminate bullying. Because the copyright was not registered until months after the infringement began, and ended, there cannot be any claim for statutory damages or attorney fees. But the complaint deliberately claims those onerous financial remedies, no doubt to increase the in terrorem effect of the lawsuit.
We are resisting. We are arguing that the present law suit, and any possible subpoena to identity McFree, are precluded by res judicata, but we are ready to oppose a subpoena to identify McFree using the full range of issues (including fair use and copyright misuse) that can be invoked to defeat a subpoena pursued for the claimed purpose of pursuing litigation against an anonymous speaker, whether under cases such as Arista Records v. Doe, which set the standard for identifying anonymous speakers sued for infringing copyrights through the use of file-sharing platforms, and Dendrite and its progeny, which set the national standard for identifying anonymous speakers whose substantive speech is claimed to be actionable.
It’s kind of incredible to see an organization that has fought (and won) so many important 1st Amendment cases, including those in support of anonymous free speech, now doing so much to attack that. But it’s even more problematic that modern copyright law enables such abuses.
Anyway, Levy is also looking for other lawyers to step up and help push back against this nonsense, if we have any lawyers reading this who are looking for some righteous pro bono efforts to get involved in:
But a broader project is needed. We need to find a way to stop Watch Tower’s reign of terror against bloggers who engage in fair use. We at Public Citizen can only take so many such cases. I’d be glad to hear from other lawyers, especially those able to practice in the Southern District of New York where Watch Tower has consistently filed its DMCA subpoenas, who are ready to provide pro bono representation (even as local counsel for others) to oppose DMCA subpoenas seeking to identify those who make use of Watch Tower materials for the purpose of commentary.
A perfect opportunity for knowledgeable lawyers to stand up for free speech, anonymity, and against problematic copyright laws.
A whole bunch of people wasted Tuesday talking about technical measures. What technical measures, you might ask? The ones vaguely alluded to in the DMCA. Subsection 512(i) conditions the safe harbors on platforms (more formally called “Online Service Providers,” or OSPs, for the purposes of the DMCA) “accommodat[ing] and […] not interfer[ing] with standard technical measures.” The statute goes on to describe them in general terms as “technical measures […] used by copyright owners to identify and protect copyrighted works” that meet a few other criteria, including that they don?t unduly burden OSPs.
In 1998 when the DMCA was passed no technical measures met all the criteria. And, still, today, none do either. So it should have been a very short hearing. But it wasn?t. Instead we spent all day, plus lots of time earlier filing comments, all at the instigation of Senators Tillis and Leahy, having some people point out that no technical measure currently existing can meet this statutory criteria to help police for infringement without massive, unacceptable cost to OSPs and the expression ? including copyrightable expression ? they facilitate, and having other people instead stamp their feet and hold their breath, pretend up is down, left is right, and the world is flat, in order to declare that some somehow do anyway and that platforms should incur any cost necessary to deploy them.
And as for which technical measures we were talking about? we never really got there. There were references to fingerprinting technologies, like ContentID, the huge, expensive, and perpetually inaccurate system Google uses to identify potentially infringing files. There were references to watermarking systems, which some (like us) noted create significant surveillance concerns as people?s consumption of expression is now especially trackable. And there were references to upload filters as well, like the EU keeps wanting to mandate. But at no point was any specific technology ever identified so we could assess the benefits and harms of even encouraging, much less mandating, its broader use. We just all sort of nodded knowingly at each other, as if we all shared some unspoken knowledge of some technology that could somehow magically work this unprecedented miracle to make all rightsholders perfectly happy while not crushing OSPs? abilities to continue to facilitate expression, create market opportunities for creators, and connect creators to audiences. Nor outright crush lawful expression itself as so many of these systems are already doing. When, of course, no such technology currently exists, nor is likely to exist any time soon, if ever at all.
Since the Copia Institute participated in this exercise in futility, we used the opportunity to remind everyone ? and the record ? in our comment and testimony that the entire conversation was happening in the shadow of the Constitution. For instance, while a system of safe harbors for OSPs is not inherently in tension with the First Amendment ? indeed, protecting the platforms that facilitate Internet expression is a critical statutory tool for advancing First Amendment interests online ? recent interpretations of the statutory language of Section 512 have been increasingly putting this safe harbor system at odds with the constitutional proscription against making a law that would impinge free expression. Any system, be it legal or technical, that causes lawful expression to be removed, or to not be allowed to be expressed at all, deeply offends the First Amendment. Such harm cannot and should not be tolerated in any statute or policy promulgated by the Copyright Office. The regulatory priority therefore ought to be, and must be, to abate this constitutional injury that?s already been occurring and keep it from accruing further. And under no circumstances should any provision of Section 512, including and especially the technical measures provision, be amended or interpreted in a way that increases the frequency or severity of this constitutional harm that the statute has already invited.
Because it also offends the spirit if not letter of the Progress Clause animating copyright law. You cannot foster creative expression by creating a system of censorship that in any way injures the public?s ability to express themselves or to consume others? expression. So it is critically important to recognize how any technological measure might do that, because it will only hurt the creative expression copyright law is itself supposed to foster, as well as all the public benefit it?s supposed to deliver.
In November, we wrote about a very bizarre case in which someone was using a highly questionable copyright claim to try to identify an anonymous Twitter user with the username @CallMeMoneyBags. The account had made fun of various rich people, including a hedge fund billionaire named Brian Sheth. In some of those tweets, Money Bags posted images that appeared to be standard social media type images of a woman, and the account claimed that she was Sheth’s mistress. Some time later, an operation called Bayside Advisory LLC, that has very little other presence in the world, registered the copyright on those images, and sent a DMCA 512(h) subpoena to Twitter, seeking to identify the user.
The obvious suspicion was that Sheth was somehow involved and was seeking to identify his critic, though Bayside’s lawyer has fairly strenuously denied Sheth having any involvement.
Either way, Twitter stood up for the user, noting that this seemed to be an abuse of copyright law to identify someone for non-copyright reasons, that the use of the images was almost certainly fair use, and that the 1st Amendment should protect Money Bag’s identify from being shared. The judge — somewhat oddly — said that the fair use determination couldn’t be made with out Money Bags weighing in and ordered Twitter to alert the user. Twitter claims it did its best to do so, but the Money Bags account (which has not tweeted since last October…) did not file anything with the court, leading to a bizarre ruling in which Twitter was ordered to reveal the identify of Money Bags.
The First Amendment protects anonymous speakers from retaliation and other harms by allowing them to separate their identity from the content of their speech to avoid retaliation and
other harms. Anonymity is a distinct constitutional right: ?an author?s decision to remain
anonymous, like other decisions concerning omissions or additions to the content of a publication,
is an aspect of the freedom of speech protected by the First Amendment.? McIntyre v. Ohio
Elections Comm?n, 514 U.S. 334, 342 (1995). It is well-settled that the First Amendment protects
anonymity online, as it ?facilitates the rich, diverse, and far-ranging exchange of ideas,? Doe v.
2TheMart.com, Inc., 140 F. Supp. 2d 1088, 1092 (W.D. Wash. 2001), and ensures that a speaker
can use ?one of the vehicles for expressing his views that is most likely to result in those views
reaching the intended audience.? Highfields, 385 F. Supp. 2d at 981. It is also well-settled that
litigants who do not like the content of Internet speech by anonymous speakers will often misuse
?discovery procedures to ascertain the identities of unknown defendants in order to harass,
intimidate or silence critics in the public forum opportunities presented by the Internet.? Dendrite
Int?l v. Doe No. 3, 775 A.2d 756, 771 (N.J. App. Div. 2001).
Thus, although the right to anonymity is not absolute, courts subject discovery requests
like the subpoena here to robust First Amendment scrutiny. And in the Ninth Circuit, as the
Magistrate implicitly acknowledged, that scrutiny generally follows the Highfields standard when
the individual targeted is engaging in free expression. Under Highfields, courts must first
determine whether the party seeking the subpoena can demonstrate that its legal claims have merit.
Highfields, 385 F. Supp. 2d at 975-76. If so, the court must look beyond the content of the speech
at issue to ensure that identifying the speaker is necessary and, on balance, outweighs the harm
unmasking may cause.
The filing notes that the magistrate judge who ordered the unmasking apparently seemed to skip a few steps:
The Magistrate further confused matters by suggesting that a fair use analysis could be a
proxy for the robust two-step First Amendment analysis Highfields requires. Order at 7. This
suggestion follows a decision, in In re DMCA Subpoena, 441 F. Supp. 3d at 882, to resolve a
similar case purely on fair use grounds, on the theory that Highfields ?is not well-suited for a
copyright dispute? and ?the First Amendment does not protect anonymous speech that infringed
That theory was legally incorrect. While fair use is a free-speech safety valve that helps
reconcile the First Amendment and the Copyright Act with respect to restrictions on expression,
anonymity is a distinct First Amendment right.1 Signature Mgmt., 876 F.3d at 839. Moreover,
DMCA subpoenas like those at issue here and in In re DMCA Subpoena, concern attempts to
unmask internet users who are engaged in commentary. In such cases, as with the blogger in
Signature Mgmt., unmasking is likely to chill lawful as well as allegedly infringing speech. They
thus raise precisely the same speech concerns identified in Highfields: the use of the discovery
process ?to impose a considerable price? on a speaker?s anonymity….
ndeed, where a use is likely or even colorably a lawful fair use, allowing a fair use analysis
alone to substitute for a full Highfields review gets the question precisely backwards, given the
doctrine?s ?constitutional significance as a guarantor to access and use for First Amendment
purposes.? Suntrust Bank v. Houghton Mifflin, 268 F.3d 1257, 1260 n.3 (11th Cir. 2001). Fair use
prevents copyright holders from thwarting well-established speech protections by improperly
punishing lawful expression, from critical reviews, to protest videos that happen to capture
background music, to documentaries incorporating found footage, and so on. But the existence of
one form of speech protection (the right to engage in fair use) should not be used as an excuse to
give shorter shrift to another (the right to speak anonymously).
It also calls out the oddity of demanding that Money Bags weigh in, when its Bayside and whoever is behind it that bears the burden of proving that this use was actually infringing:
Bayside incorrectly claims that Twitter (and by implication, its user) bears the burden of
demonstrating that the use in question was a lawful fair use. Opposition to Motion to Quash (Dkt.
No. 9) at 15. The party seeking discovery normally bears the burden of showing its legal claims
have merit. Highfields, 385 F. Supp. 2d at 975-76. In this pre-litigation stage, that burden should
not shift to the anonymous speaker, for at least three reasons.
First, constitutional rights, such as the right to anonymity, trump statutory rights such as
copyright. Silvers v. Sony Pictures Entm?t, Inc., 402 F.3d 881, 883-84 (9th Cir. 2005). Moreover,
fair use has an additional constitutional dimension because it serves as a First Amendment ?safety
valve? that helps reconcile the right to speak freely and the right to restrict speech. William F.
Patry & Shira Perlmutter, Fair Use Misconstrued: Profit, Presumptions, and Parody, 11 Cardozo
Arts & Ent. L.J. 667, 668 (1993). Shifting the Highfields burden to the speaker would create a
cruel irony: an anonymous speaker would be less able to take advantage of one First Amendment
safeguard?the right to anonymity?solely because their speech relies on another?the right to
fair use. Notably, the Ninth Circuit has stressed that fair use is not an affirmative defense that
merely excuses unlawful conduct; rather, it is an affirmative right that is raised as a defense simply
as a matter of procedural posture. Lenz v. Universal, 815 F.3d 1145, 1152 (9th Cir. 2016).
Second, Bayside itself was required to assess whether the use in question was fair before it
sent its DMCA takedown notices to Twitter; it cannot now complain if the Court asks it to explain
that assessment before ordering unmasking. In re DMCA Subpoena, 441 F. Supp. 3d at 886 (citing
Lenz., 815 F.3d at 1153: ?a copyright holder must consider the existence of fair use before sending
a takedown notification under ? 512(c)?)
Third, placing the burden on the party seeking to unmask a Doe makes practical sense at
this early stage, when many relevant facts lie with the rightsholder. Here, for example, Bayside
presumably knows?though it has declined to address?the original purpose of the works. And as
the copyright holder, it is best positioned to explain how the use at issue might affect a licensing
market. While the copyright holder cannot see into the mind of the user, the user?s purpose is easy
to surmise here, and the same is likely to be true in any 512(h) case involving expressive uses.
With respect to the nature of the work, any party can adequately address that factor. Indeed, both
Bayside and Twitter have done so.
The filing also notes that this is an obvious fair use situation, and the judge can recognize that:
While courts often reserve fair use determinations for summary judgment or trial, in
appropriate circumstances it is possible to make the determination based on the use itself. See In
re DMCA Section 512(h) Subpoena to YouTube (Google, Inc.), No. 7:18-MC-00268 (NSR), 2022
WL 160270 (S.D.N.Y. Jan. 18, 2022) (rejecting the argument that fair use cannot be determined
during a motion to quash proceeding). In Burnett v. Twentieth Century Fox, for example, a federal
district court dismissed a copyright claim?without leave to amend?at the pleading stage based
on a finding of fair use. 491 F. Supp. 2d 962, 967, 975 (C.D. Cal. 2007); see also Leadsinger v.
BMG Music Pub., 512 F.3d 522, 532?33 (9th. Cir. 2008) (affirming motion to dismiss, without
leave to amend, fair use allegations where three factors ?unequivocally militated? against fair use).
See also, e.g., Sedgwick Claims Mgmt. Servs., Inc. v. Delsman, 2009 WL 2157573 at *4 (N.D. Cal.
July 17, 2009), aff?d, 422 F. App?x 651 (9th Cir. 2011); Savage v. Council on Am.-Islamic Rels., Inc., 2008 WL 2951281 at *4 (N.D. Cal. July 25, 2008); City of Inglewood v. Teixeira, 2015
WL 5025839 at *12 (C.D. Cal. Aug. 20, 2015); Marano v. Metro. Museum of Art, 472 F. Supp. 3d
76, 82?83, 88 (S.D.N.Y. 2020), aff?d, 844 F. App?x 436 (2d Cir. 2021); Lombardo v. Dr. Seuss
Enters., L.P., 279 F. Supp. 3d 497, 504?05 (S.D.N.Y. 2017), aff?d, 729 F. App?x 131 (2d Cir.
2018); Hughes v. Benjamin, 437 F. Supp. 3d 382, 389, 394 (S.D.N.Y. 2020); Denison v. Larkin,
64 F. Supp. 3d 1127, 1135 (N.D. Ill. 2014).
These ruling are possible because many fair uses are obvious. A court does not need to
consult a user to determine that the use of an excerpt in a book review, the use of a thumbnail
photograph in an academic article commenting on the photographer?s work, or the inclusion of an
image in a protest sign are lawful uses. There is no need to seek a declaration from a journalist
when they quote a series of social media posts while reporting on real-time events.
And the uses by Money Bags were pretty obviously fair use:
First, the tweets appear to be noncommercial, transformative, critical commentary?classic
fair uses. The tweets present photographs of a woman, identified as ?the new Mrs. Brian Sheth?
as part of commentary on Mr. Sheth, the clear implication being that Mr. Sheth has used his wealth
to ?invest? in a new, young, wife. As the holder of rights in the photographs, Bayside could have
explained the original purpose of the photographs; it has chosen not to do so. In any event, it
seems unlikely that Bayside?s original purpose was to illustrate criticism and commentary
regarding a billionaire investor. Hence, the user ?used the [works] to express ?something new, with
a further purpose or different character, altering the first with new expression, meaning, or
message.?? In re DMCA Subpoena to Reddit, Inc., 441 F. Supp. 3d at 883 (quoting Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994)). While undoubtedly crass, the user?s purpose
is transformative and, Bayside?s speculation notwithstanding, there is nothing to suggest it was
The filing also calls out the magistrate judge’s unwillingness to consider Twitter’s own arguments:
Of course, there was a party in court able and willing to offer evidence and argument on
fair use: Twitter. The Magistrate?s refusal to credit Twitter?s own evidence, Order at 7-8, sends a
dangerous message to online speakers: either show up and fully litigate their anonymity?risking
their right to remain anonymous in the process?or face summary loss of their anonymity when
they do not appear. Order at 7. That outcome inevitably ?impose[s] a considerable price? on
internet users? ability to exercise their rights to speak anonymously. Highfields, 385 F. Supp. 2d
at 980-81. And ?when word gets out that the price tag of effective sardonic speech is this high, that
speech will likely disappear.?
Hopefully the court reconsiders the original ruling…
Techdirt regular John Roddy highlighted a truly bizarre fight happening in a California court that may or may not involve billionaire Brian Sheth. Sheth was a cofounder of the high-flying Vista Equity Partners, and left it a year ago in a high profile exit, after the firm’s other cofounder, Robert Smith, entered into a non-prosecution agreement with the DOJ and agreed to pay $139 million and “abandon” $182 million in deductions, related to charges of tax fraud. In the Forbes link above, Sheth claims he sought to have Smith leave Vista following this revelation, but “Smith prevailed” and so Sheth left. Nothing in that article makes Sheth look particularly bad.
However… an anonymous Twitter user @CallMeMoneyBags has been tweeting criticism of lots of folks involved in the private equity space, including Brian Sheth. A year ago, just about the same time that Sheth left Vista, MoneyBags tweeted a bunch of tweets referring to Sheth, and including snapshots of women who were sometimes scantily clad. The text of the tweets wasn’t particularly bad. One of them just says “Brian Sheth is the King of Private Equity” with some hashtags:
Some of the tweets could be read obliquely to suggest infidelity:
You’ll notice that the screenshots of those tweets show the media disabled over a copyright claim, and that’s the next stage of this mystery. An entity called “Bayside Advisory LLC,” which barely seems to exist, sent Twitter a copyright infringement notice for the images in those tweets, and then immediately filed a DMCA 512(h) subpoena to Twitter demanding that it identify the person behind @CallMeMoneyBags.
Twitter, properly moved to quash the subpoena, noting that this was all highly sketchy, and that the standard to force the disclosure of an anonymous poster is quite high, and it was not met here. Twitter rightfully noted that it was also somewhat perplexed by who the hell Bayside Advisory LLC was, and whether it had any connection to Sheth:
None of the Tweets mention Bayside…. Twitter?s counsel has attempted to learn the
connection between Bayside and Sheth or the images at issue but has been unsuccessful….
Bayside does not appear to be registered to conduct business in California, and public searches of
Bayside reveal only an Ohio real estate holdings company with no apparent connection to Sheth
and no specialization in creating or acquiring copyrights of candid photographs.
There’s been a fair bit of back and forth, but to summarize, Twitter argues (correctly) that the 1st Amendment protects anonymity. “Bayside” (whoever that is) argues back (misleadingly) that copyright infringement is not protected by the 1st Amendment. Twitter argues (correctly) that fair use is not infringement, and Bayside argues that it’s not fair use. Twitter then argues again that (1) it is fair use, and (2) even if it’s not fair use, Bayside doesn’t meet the very high bar to expose an anonymous social media user.
Throughout all of this Bayside keeps insisting that it has no connection to Sheth at all and is merely a concerned copyright holder trying to police infringement. This seems exceedingly difficult to believe. However, the company filed a disclosure insisting that there were no other parties of interest in this case, and says that Twitter is wrong in implying that Sheth or someone connected to him are trying to expose MoneyBags:
Twitter falsely claims that Bayside is attempting to unmask a Twitter user
(?MoneyBags?) for commenting on a newsworthy billionaire, thereby chilling MoneyBags? First
Amendment speech. (Dkt. 13 at 5). Bayside is not. As was clear in its opposition to the motion to
quash (Dkt. 9), Bayside seeks the identity of a copyright infringer pursuant to the DMCA. The
First Amendment does not afford protection for copyright infringement, nor are copyright
infringer identities protected from disclosure by the First Amendment. Harper & Row
Publishers, Inc. v. Nation Enters., 471 U.S. 539, 556 (1985); Arista Records, LLC v. Doe 3, 604
F.3d 110, 118 (2d Cir. 2010). Bayside has never requested MoneyBags? tweets be removed. The
commentary in those tweets remained after Bayside?s DMCA notice, and their textual comment
is of no concern to Bayside. What is of great concern to Bayside is the unauthorized use of
several of its copyrighted Photographs simply as an illustrative aid to those tweets, which does
not constitute fair use.
?the photos are exclusively and solely owned and controlled by our client Bayside Advisory LLC, the photos are registered
with the United States Copyright Office reflecting that Bayside is the sole owner, Mr. Sheth
never had any ownership or control interest in the photos and that Mr. Sheth does not own
or control any interest in Bayside.?
For what it’s worth, it does appear that Bayside Advisory LLC, using a US Postal Service postal box based in Menlo Park, California, did in fact file a copyright registration for six photos after MoneyBags posted the tweets. The registration claims that two of the photos (registered as a “group”) were “published” in 2017 and the four others (also registered together as a group) were “published” in July of 2020. In those registrations, Bayside names Brenda Diaz as the photographer of all six photos. Notably, Bayside insists that protecting copyright is part of what it does:
Contrary to Twitter?s baseless conjecture, Bayside is a
communications and strategic advisory firm that, among other things, advises and partners with
creators, artists, and entrepreneurs to protect, promote, and champion creative expression.
Bayside owns a catalog of photographs (the Photographs are only a small part of the catalog) to
exploit for those purposes. What Twitter is attempting to do with its motion to quash is diminish
the rights of copyright holders by forcing them to navigate the court system and fight diligently,
and at great cost and expense, to get basic information about those who infringe their copyrights.
That would be a hell of a lot more compelling if… the two registrations at issue here weren’t the only two registrations for published works that Bayside Advisory has. Earlier this summer (many, many months later) Bayside Advisory did register two more groups of unpublished photographs, but the idea that these photos are “only a small part of its catalog” is, at the very least, not clearly seen in its copyright registration practices.
Now, many months later, the judge has finally issued an order… which only punts the matter for the time being. Basically, the judge says it doesn’t have enough info about @CallMeMoneyBags’ use of the photos to determine whether or not they are protected by fair use, because MoneyBags is not a party here and hasn’t filed anything on his (or her) behalf. So the court says that it has to hear from MoneyBags in order to get the full record and make a fair use determination, and whether or not MoneyBags’ anonymity should also be protected:
To the extent the court must reach the issue of whether @CallMeMoneyBags?s use of the
photos constitutes fair use, it lacks a well-developed record on which to base any ruling. … In this case, Twitter states that ?[i]t appears the anonymous Twitter user here posted those candid photographs
for the purpose of criticizing or satirizing Sheth.? Mot. to Quash 12. Twitter speculates. The
purpose and meaning of the tweets is not clear. They include hashtag references which are not
obvious. Evidence regarding the user?s purpose and intended meaning is likely available only
from the individual(s) who posted the tweets. … The facts relevant to the first factor may also impact the third, which
examines ?the amount and substantiality of the portion used in relation to the copyrighted work as
a whole.?… As the Supreme Court has
explained, when examining the third factor, ?the enquiry will harken back to the first of the
statutory factors? because ?the extent of permissible copying varies with the purpose and character
of the use.?
Additionally, to the extent the court determines it is necessary and appropriate to ?balance
?the magnitude of the harms that would be caused to the competing interest by a ruling in favor of
[Bayside] and by a ruling in favor of [Twitter and the user of the @CallMeMoneyBags account],??
the court lacks sufficient information to do so…. As noted, Twitter contends that
unmasking @CallMeMoneyBags ?may invite social ostracism, expose them to harassment, or
prevent future employment opportunities,? but this too is speculative.
Accordingly, the court shall give the user(s) of the @CallMeMoneyBags account an
opportunity to provide information supporting the foregoing inquiries, including evidence
regarding any claim of fair use of the photos and the harms that could result if the court rules in
favor of Bayside on the motions to quash and to compel. Twitter shall immediately serve a copy
of this order along with the complete briefing on Twitter?s motion to quash and Bayside?s motion
to compel on the email address associated with the @CallMeMoneyBags account, and file a
declaration attesting to the same by November 10, 2021. By no later than December 10, 2021, the
user(s) of the @CallMeMoneyBags account may specially appear and file evidence regarding fair
use and/or the harms that may result if the court denies the motion to quash and grants the motion
to compel. The user(s) may appear anonymously for the purpose of submitting such evidence.
The court will take the matter under submission after December 10, 2021.
Twitter has since told the court that it has sent this ruling to @CallMeMoneyBags, and one hopes that MoneyBags can find himself (or herself) a decent lawyer who understands both fair use and anonymity…
And, of course, there’s a lot that’s perplexing here. The most obvious candidate for wanting to identify MoneyBags would be Sheth, but Bayside is emphatic (in its court filings) that it’s not Sheth, but it’s not at all clear who is actually behind Bayside or what Bayside actually does. But if it’s not Sheth, then who would be so insistent on finding out who is behind the account, and spending what appears to be significant amount on a lawyer who used to run legal affairs for Universal Music Publishing Group? That’s not how most people react to random snapshots being placed on Twitter. It’s possible that it’s somehow connected to the photographer, Diaz, but, if so, why did she hand over just those six images to Bayside to register and fight this fight? It’s all… very perplexing.
Either way, kudos to Twitter for (1) fighting for the right to post anonymously, to criticize people while doing so, and (2) fighting for fair use.
Summary: There are many content moderation challenges that companies face, but complications arise when users or companies try to make use of copyright law as a tool to block criticism. In the US, the laws around content that allegedly infringes on a copyright holder’s rights are different than most other types of content, and that creates some interesting challenges in the content moderation space.
Specifically, under Section 512 of the Digital Millennium Copyright Act (DMCA), online service providers who do not wish to be held liable for user-posted material that infringes copyright need to take a few steps to be free of liability. Key among those steps is having a “notice-and-takedown” process, in which a copyright holder can notify the website of allegedly infringing material; and if the website removes access to the work, it cannot be held liable for the infringement.
This process creates a strong incentive for websites to remove content upon receiving a takedown notice, as doing so automatically protects the site. However, this strong incentive for the removal of content has also created a different kind of incentive: those who wish to have content removed from the internet can submit takedown notices claiming copyright infringement, even if the work does not infringe on copyright. This creates an interesting challenge for companies hosting content: determining when a copyright takedown notice has been submitted for illegitimate purposes.
In September of 2020, news was released that Nikola, an alternative energy truck company’s promotional video showing its new hydrogen fuel cell truck driving along a highway was false. A report by a research firm criticized the company, saying that the truck did not move under its own propulsion. As it turned out, the truck did not actually have a hydrogen fuel cell and was instead filmed rolling downhill; Nikola admitted that it had faked its promotional video. In Nikola’s response, it admits that the truck did not move on its own, but it still claimed that the original report was “false and defamatory.” While the response from Nikola does highlight areas where it disagrees with the way in which the research firm wrote about the company’s efforts, it does not identify any actual “false” statements of fact.
Soon after this, many YouTube creators who made videos about the situation discovered that their videos about the incident were being removed due to copyright claims from Nikola. While video creators did use some of the footage of the faked promotional video in their YouTube videos, they also noted that it was clearly fair use, as they were reporting on the controversy and just using a short snippet of Nikola’s faked promotional video, often presenting it in much longer videos with commentary.
When asked about the situation, Nikola and YouTube spokespeople seemed to give very different responses. Ars Technica’s Jon Brodkin posted the comments from each side by side:
“YouTube regularly identifies copyright violations of Nikola content and shares the lists of videos with us,” a Nikola spokesperson told Ars. “Based on YouTube’s information, our initial action was to submit takedown requests to remove the content that was used without our permission. We will continue to evaluate flagged videos on a case-by-case basis.”
YouTube offered a different description, saying that Nikola simply took advantage of the Copyright Match Tool that’s available to people in the YouTube Partner Program.
“Nikola has access to our copyright match tool, which does not automatically remove any videos,” YouTube told the [Financial Times]. “Users must fill out a copyright removal request form, and when doing so we remind them to consider exceptions to copyright law. Anyone who believes their reuse of a video or segment is protected by fair use can file a counter-notice.”
Given the potential liability from not taking down an infringing video, how much should YouTube investigate whether or not a copyright claim is legitimate?
Is there a scalable process that will allow the company to review copyright takedowns to determine whether or not they are seeking to take down content for unrelated reasons?
What kind of review process should be put in place to handle situations, like what happened with Nikola, where a set of videos are reported as copyright violations and are taken down because those videos featured the copyrighted material as news or commentary, and the copyright infringement takedown requests were improper?
Improper takedowns can reflect poorly on the internet platform that removes the content, but often make sense to avoid potential liability. Are there better ways to balance these two competing pressures?
Copyright is one of the few laws in the US that can be used to pressure a website to take down content. Given that the incentives support both overblocking and false reporting, are there better approaches that might protect speech, while giving companies more ability to investigate the legitimacy of infringement claims?
Under the current DMCA 512 structure, users can file a counternotice with the website, but the copyright holder is also informed of this and given 10 days to file a lawsuit. The threat of a lawsuit often disincentivizes counternotices. Are there better systems enabling those who feel wrongfully targeted to express their concerns about a copyright claim?
Resolution: After the press picked up on the story of these questionable takedown notices, many of the YouTube creators found that the takedown demands had been dropped by Nikola.
In July of 2021, nine months after the news broke of the faked videos, Nikola’s founder Trevor Milton was charged with securities fraud by the SEC for the faked videos.