DMCA Takedowns Under the Microscope

-- By BrianS - 24 Mar 2010

Introduction: Section 512(c)

I have previously noted that the DMCA's anti-circumvention provisions changed the penumbras of copyright law significantly. So too has the DMCA's takedown provision, 17 U.S.C. section 512(c), modified the playing field for content owners, content creators, and content hosts. Under section 512(c), rightholders can issue notifications to ISPs requesting that they remove user-uploaded content on the ISP's site because it allegedly violates U.S. copyright law. See, e.g., Info on 512(c); SSRN paper. This essay examines the actual use of section 512(c)'s takedown provision in the field.

The Hall of "Fame"

Since section 512(c)'s enactment, thousands of takedown notices have been issued. Many of those notices have been issued in good faith and in compliance with the intended effect of section 512(c). Others, however, have not. For example, after blogger Perez Hilton issued a video clip criticizing Miss California Carrie Prejean for being opposed to same sex marriages, the Natioanl Organization for Marriage used a few seconds of his critical video in a response ad. Perez then issued a takedown notice alleging copyright infringement for what was clearly a fair use. As others have noted, this was clearly an abuse of the DMCA process. Similarly, NPR issued a takedown notice when an anti-same sex marriage group used 21 seconds of an NPR clip to try to make a point in its political ad. And in a third example, after the National Organization for Marriage made a video depicting the rise in gay rights as a coming storm, a second organization obtained and released clips of the rather horrific auditions for NOM's ad. Reporter Rachel Maddow played some of those auditions (the relevant clip begins two minutes into the video) on her show to make the comedic point that "pretending to be a straight person hurt by gay marriage [] is apparently very, very challenging." In response, of course, NOM issued a takedown notice. MSNBC's use was clearly a fair use and an NOM's takedown thus an abuse of the DMCA. And these are not the only examples. Instead, some studies have argued that 30% of takedowns present substantive flaws suggesting the takedown seeks removal of noninfringing works.

The Unblinking Eye

Issuing takedown notices takes time; processing and responding to them takes time as well. Some content hosts have responded by seeking to automate the process. Perhaps the best known monitor is YouTube's ContentID. ContentID? matches reference audio or video files provided to YouTube? by rightholders against user-uploaded content. When signing-up to use ContentID? , the rightholder instructs the program what it should do when it finds a match: "monetize, track, or block" the user-uploaded content. Once the rightholder has done so, ContentID? is [[http://www.youtube.com/t/contentid]["[f]ully Automated. Once you're set up, Audio ID and Video ID identify, claim, and apply policies to YouTube? videos for you."]]

The problem is obvious: ContentID? is only comparing materials of user-uploaded content, not evaluating the manner of use.

Conclusion

Sources to Integrate:

Viacom - We Goofed on that Takedown with Colbert...

What fair use? Three strikes and you're out... of YouTube

YouTube's January Fair Use Massacre

Google's submission on 92A

EFF's User-generated content principles

Fair use and DMCA takedowns

ContentID as automatic take downs