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Victims Fight Back Against DMCA Abuse

Posted by Zonk on Fri Mar 16, 2007 02:55 PM
from the hey-not-so-fast dept.
Censorship Media Government The Courts The Internet News
Cadence writes "The DMCA is being used a lot recently to demand takedowns of all sorts of content on the Internet. But how many of those DMCA-fueled demands are abusive? Lately, some victims of takedown demands have begun to fight back with the help of the EFF, including some against Viacom: 'Finally, a Viacom executive admitted last month that less than 60 of his company's 100,000 takedown requests to YouTube were invalid. John Palfrey of Harvard's Berkman Center wonders what rights those 60 people have? We may find out. The EFF called for people who had videos pulled inappropriately to contact the group, though the EFF tells The National Law Journal that it cannot comment on its future legal plans. One of the reasons companies misuse the DMCA and cease-and-desist copyright letters is that the tools can quickly accomplish what they want to have happen; stuff they don't like goes bye-bye in a hurry. When the alternative is moving slowly through the court system, letters look like an excellent alternative.'"
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  • 60 out of 100,000? (Score:5, Insightful)

    by jdhutchins (559010) on Friday March 16 2007, @03:00PM (#18379577)
    He says they made fewer than 60 mistakes out of 100,000 notices? I'd say that's pretty good... it's a 0.06% error. Any system is going to have mistakes, but it seems like they've worked out bugs and they're doing a good job.

    • Re: (Score:2, Insightful)

      by stratjakt (596332)
      I thought the same thing, I doubt a human would have such a low failure rate.

      • Re:60 out of 100,000? (Score:4, Insightful)

        by Red Flayer (890720) on Friday March 16 2007, @03:10PM (#18379717) Journal

        I thought the same thing, I doubt a human would have such a low failure rate.
        Why wasn't a human reviewing each of the videos? If a human was reviewing the videos for which takedown notices were sent, how did they not notice the obvious, such as parody clips featuring different actors?

        Whether it's 60 of 100, 60 of 100,000 or 60 of 1x10^9, those 60 are still abuses of the DMCA and should be treated as such, including liability for Viacom.
        • If somebody's uploading entire TV series -- and this does happen -- episode by episode, breaking down each into pieces, and accurately describing them -- it doesn't really seem necessary to watch each individual piece. Identify the bulk-uploader, take a look at a couple, flag the entire series of uploads as infringing.

          • Re:60 out of 100,000? (Score:4, Insightful)

            by Red Flayer (890720) on Friday March 16 2007, @03:48PM (#18380255) Journal

            If somebody's uploading entire TV series -- and this does happen -- episode by episode, breaking down each into pieces, and accurately describing them -- it doesn't really seem necessary to watch each individual piece. Identify the bulk-uploader, take a look at a couple, flag the entire series of uploads as infringing.
            I disagree. If each upload is to be treated as a separate violation of the DMCA, then it is the responsibility of the organization filing the takedown notice to ensure that each upload is, in actuality, infringing.

            • I disagree. If each upload is to be treated as a separate violation of the DMCA, then it is the responsibility of the organization filing the takedown notice to ensure that each upload is, in actuality, infringing.

              Or watch a handful, establish that they are by and large infringements and flag them all. What judge is going to complain that you flagged 90 videos of 'Different Strokes' when 2 were some guy's backyard stunt video? You've already established a pattern of behavior.

              • If you want to cut corners and save costs by not reviewing each video, I don't mind -- just be prepared for the liability stemming from the ones you took down in error. I'm sure you can establish optimal review rates, it's a very simple calculation.

                Oh, and patterns of behavior -- they don't count for much in court.

              • said by someone whose IP is not infringed every few seconds


                Or someone who values free speech over profits.
        • Because even if it takes the reviewer 1 minute to decide on each upload, those 100,000 videos would take 1,666 hours to review. And if they sit on YouTube for a week, all the pirates will have downloaded them already. To get them reviewed in one work day it would take 208 people. And you think those 208 people are going to have less than a 0.06% error rate?

          • Re: (Score:3, Insightful)

            by Red Flayer (890720)
            Immaterial. They should still have the burden of positive validation of infringement before taking action under the DMCA, and liability for failing to meet that requirement.

            And your calculation is way off, since there are not 100,000 per work day.

    • Re:60 out of 100,000? (Score:5, Insightful)

      by Dunbal (464142) on Friday March 16 2007, @03:03PM (#18379613)
      He says they made fewer than 60 mistakes out of 100,000 notices? I'd say that's pretty good

            No he only admitted to 60 mistakes... it's not the same.

      • Re: (Score:3, Insightful)

        by TubeSteak (669689)

        No he only admitted to 60 mistakes... it's not the same.
        Isn't that worse?
        They knew or now know (to be determined in court) that those 60 did not infringe on their copyright.

        You'd think a well written DMCA law would lay out what the consequences/penalties are in those situations.

        If they knew about it and went ahead anyways, that's worse than accidentally DMCAing some videos & discovering post-facto that it was a mistake.

        • I swear... (Score:5, Informative)

          by rbochan (827946) on Friday March 16 2007, @03:27PM (#18379961) Homepage

          You'd think a well written DMCA law would lay out what the consequences/penalties are in those situations.

          "I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner of an exclusive right that is infringed."

          • Re: (Score:3, Interesting)

            by iminplaya (723125)
            Yet another reason to invoke the corporate death penalty. We must demand revocation of corporate charters if we are ever to see a turnaround. We give them this authority. Time to it back, or progress will remain up against a brick wall, and groups like Viacom will own exclusive access to all sensory inputs...if Microsoft didn't get there first.

            If there is to be any conviction for perjury in this case, it will be some some poor, mid-level bastard who was convinced he was doing the "right thing" who will take

            • If there is to be any conviction for perjury in this case, it will be some some poor, mid-level bastard who was convinced he was doing the "right thing" who will take the fall. The people who arrange all this will walk away very rich indeed.

              Pssst, "if there is to be any conviction for perjury in this case, it will be some some" guy who signed the dotted line on the takedown notice.

              That's the wonderful thing about legal notices, someone has to sign it & that person (&/or their lawyer) can directly be

                • Re: (Score:2, Insightful)

                  by maxume (22995)
                  "One would be to vote for a government more sympathetic toward the citizenry as opposed to big business."

                  Are those things necessarily in opposition?

          • Re: (Score:3, Interesting)

            by TubeSteak (669689)
            You'd be surprised how infrequently anyone is prosecuted for perjury.

            It's very rare in civil cases & TFA suggests that VIACOM is only learning about these non-infringers when they tell YouTube that they did not infringe.

            I think increasing the cost of a DMCA takedown notice would resolve the issue. Add an automatic 'you were wrong' penalty if anyone sends out more than X notices or some other arbitrary criteria.

            It'll only hit the people pumping out the takedowns and (if the penalty is large enough) will
            • There needs to be something to stop takedown notices from people who dont like what you have hosted as well.

              I've gotten one or two but I've been able to fend them off mainly because I use dedis.
              I've heard of people on shared hosting where the files just get deleted without warning.
              It scares the shit out of shared hosts.
              • If it's a DMCA takedown notice, for immunity (from the uploader, not the one claiming infringement) the service provider is supposed to notify the uploader so that the uploader can file a counter-notice. At that point, it's between the uploader and the one alleging infringement.
            • "You'd be surprised how infrequently anyone is prosecuted for perjury."

              Tell that to Scooter Libby... ;)
            • You'd be surprised how infrequently anyone is prosecuted for perjury.

              Even in criminal cases where someone has blatantly lied...

              I think increasing the cost of a DMCA takedown notice would resolve the issue.

              e.g. Getting rid of the whole idea and requring a "court injunction" before any "takedown" happens.
          • So the person who has had the rights infringed by Viacom, does not have to sue, all they have to do is file a complaint and their local law enforcement agency will pursue Viacom for perjury, and whom ever was silly enough to sign the DMCA take down notice will have a nice little rest in their local federal hotel.

    • Re: (Score:2, Interesting)

      by PhoenixFire213 (839961)
      Who said they were mistakes? They only said they were invalid ;)

    • Re: (Score:2, Insightful)

      by Seumas (6865)
      Yeah, unless you're one of the sixty.

    • Re:60 out of 100,000? (Score:5, Funny)

      by Anonymous Coward on Friday March 16 2007, @03:08PM (#18379689)

      He says they made fewer than 60 mistakes out of 100,000 notices?
      Yes, according to an unsourced slashdot story, an unnamed viacom executive made this claim in some context, at an unspecified time.

      That's good enough for me! The system works!
    • That they are committing a crime when they send a DMCA takedown request for content that they don't own the copyright. 1 is too many. Its like saying I drive sober 100,000 times in my life so i shouldn't get in trouble for the 60 times that i drive drunk. Perjury is a crime and our legal system should not ignore it. Hell just ask scooter libby about perjury .

      The statute also establishes procedures for proper notification, and rules as to its effect. (Section 512(c)(3)). Under the notice and takedown pr

        • Pulling over someone that you suspect of dui is a crime? You're analogy fails. Sending a DMCA notice for content you don't own is a crime. Its funny how people overlook crimes because its some big business thats committing them.
    • He says they made fewer than 60 mistakes out of 100,000 notices? I'd say that's pretty good... it's a 0.06% error.

      He has admitted to the 60. There's no way to know how many of the other 99,940 might also be mistakes. Also he has an interest in mimimising the number of "mistakes" admitted to. The "error rate" would depend on how many of the 100,000 requests involve a good chance that there is infringement of Viacom's copyright.

  • Here's one improperly pulled video (Score:5, Informative)

    by Anonymous Coward on Friday March 16 2007, @03:05PM (#18379655)
    Here's One video that was improperly pulled [typophile.com] (it was a parody, not a copy, and most definitely not someone rebroadcasting a Viacom segment without permission).

    And, yes, I do think Viacom has a right to defend their copyrights, but pulling parodys is clearing going too far.

        • Re:Round and round the mullberry bush? (Score:5, Informative)

          by 91degrees (207121) on Friday March 16 2007, @04:02PM (#18380451) Journal
          If all it takes is a 'counter-notification' to get the content back up, why doesn't everyone just throw back a counter-notification, pending a counter-counter-notification, ad infinitum?

          It doesn't quite work like that:)

          After a counter notification, the submitter has taken full responsibility for the legality of the work, and authorises YouTube to give contact details to the complainant. And further takedowns must be ignored by YouTube. The dispute is now between the poster and the complainant.

        • Re:Round and round the mullberry bush? (Score:5, Informative)

          by The Empiricist (854346) on Friday March 16 2007, @04:25PM (#18380763)

          If all it takes is a 'counter-notification' to get the content back up, why doesn't everyone just throw back a counter-notification, pending a counter-counter-notification, ad infinitum?
          17 USC Sec. 512 [cornell.edu] is not worded recursively. User uploads content to system or network controlled or operated by Service Provider. Copyright Owner sends take-down notification to Service Provider alleging that content uploaded by User infringes valid copyright. At that point User can send counter-notification to Service Provider stating that material was taken down as a result of mistake (perhaps of law) or misidentification of material. Service Provider forwards a copy of the counter-notification to Copyright Owner. At this point, Copyright Owner can do nothing, in which case the material must be posted back within 10-14 business days of receipt of the counter-notification. The only way to prevent re-posting of the material is for Copyright Owner to file suit against User and to then notify Service Provider. There is no counter-counter-notification---just a lawsuit.

          Still, contrast this with the European Union's takedown procedures, laid out in Directive 2000/31/EC [eu.int], Article 14(b), which limits the liability of a provider who "upon obtaining... knowledge or awareness [of illegal activity or information], acts expeditiously to remove or to disable access to the information." As one blogger put it, "the main difference between the U.S. and the EU on matters of notice and takedown is that the EU removes all of the formalities that exist under U.S. law and, with them, all of the protections." [plagiarismtoday.com]

  • One of the reasons companies misuse the DMCA and cease-and-desist copyright letters is ...

    First you have to prove that the DMCA is being "misused", and wasn't intended for this purpose since day 1.
    • First you have to prove that the DMCA is being "misused", and wasn't intended for this purpose since day 1

      Okay [chillingeffects.org]... Done.

  • Search Method Used? (Score:3, Interesting)

    by Bones3D_mac (324952) on Friday March 16 2007, @03:47PM (#18380239)
    It'd be interesting to know just what kind of search method was used to issue these takedown notices. Does a GREP search script have the legal authority to send a cease & desist order without human intervention? It's hard to imagine all 100,000 cases were human reviewed...

  • OTOH (Score:4, Informative)

    by sakusha (441986) on Friday March 16 2007, @04:23PM (#18380745)
    There is another side of the story. I have personally found the DMCA to be invaluable in protecting my interests against greedy, unscrupulous corporations. The little guy (like me) has so few tools to protect his rights, the DMCA allowed me to stop a corporation from misappropriating my works, without having to resort to expensive litigation. All I had to do was file a few letters, I even copied the text from sample DMCA letters in the archives at Berkman. It was easy, and a hell of a lot cheaper than hiring a lawyer. Result: total victory against the infringer.
    • Result: total victory against the infringer.

      Yes, but at what cost? The lives of thousands are being dragged through the legal muck of the court system and millions more of us live with the constant threat of that action looming above our heads, even for content that we have already paid for, because we want to format shift our purchases. Not to mention the effect on scholarly research, especially as it pertains to cryptography and other selected topics in the fields of Computer Science and Mathematics.
    • Well gosh since it seems to be working for you then we should certainly not look further into those who are using the DMCA inappropriately. Come now why is this anecdotal evidence relevant to the conversation at hand?
      • Come now why is this anecdotal evidence relevant to the conversation at hand?

        The above comment might lead to a lot more little guys zorching big corporations in the pocket book when said big corporations have used copyrighted works without permission.

        For instance: FOSS authors might find circumstances where they could invoke the DMCA against a company that incorporated their work in a product distributed without source code by a company that refuses to come clean.

        Make enough pain for companies with bucks o
      • I've written a few brief notes on this case in other threads on Slashdot, but I've never laid out the full story. And oh boy is it an amazing story. But I've been hesitant to lay out the details for fear of becoming the target of rabid anti-DMCA nutcases. I am still considering how to proceed with the matter, I'm sure I will eventually reveal all, but not today.
  • a Viacom executive admitted last month that less than 60 of his company's 100,000 takedown requests to YouTube were invalid

    Less than 60 were invalid? So most of the 100,000 *were* valid?

    Or is this just another case of the /. janitors not proofreading properly *again*?
    • Actually, the user should probably sue Google in this case. Viacom is only liable if it's a bad-faith notice or improperly field; an honest mistake where they actually believed that it was infringing on their IP rights is permissible.

      *Google/YouTube*, on the other hand, is only shielded from a lawsuit by the uploader if the takedown procedure was followed and Google/YouTube notifies the uploader in a timely fashion and accepts and properly handles any valid counter-notification letter provided by the uploa
      • What about that was Google/YouTube's fault? If they are served with a take down notice, they have to take it down. If they delay they can face huge lawsuits for not acting in a timely manner. All YouTube did was obey the law, a law that is being abused far to often and abused in this instance. If my content was taken down, I would go after Viacom for filing an unlawful take down, since they have to claim ownership of my material to use the take down. There are two fronts here, on one side Viacom violat
      • Uh... Its a free video upload site. Why would anyone cry that much over a deleted video?
        • Depends what it is. I could see an uploader being pissed if it's

          (a) his content, and
          (b) he's deliberately uploading it there for a promotional effort -- like teasers for content he's offering for $

    • Re: (Score:3, Informative)

      by Stonehand (71085)
      Same way the users are likely to find them. Search. Subscriptions. Channels. And realizing that a single uploader may be responsible for a large number of obviously infringing videos -- if he's uploading entire seasons of television shows, with multiple parts per episode, labeled as such, it's probably unnecessary to watch every single video that matches the pattern.

      I just tried a search for 'season episode'. 21,500 results reported. The first page includes 'Everybody Loves Raymond'. I look at the us

    • Re:An error rate of (Score:4, Insightful)

      by Wingnut64 (446382) on Friday March 16 2007, @04:02PM (#18380445)
      Legal notices containing the phrase "I swear, under penalty of perjury" and "I am the copyright owner" should not be very tolerant of any error rate; especially considering that the hosting companies often comply without even looking at the content in question.

      PROOF the DMCA is FLAWED!
      If there's no accountability for parties that commit perjury while using this law then I think we can agree that it's flawed?
      • Common it was just a blojob. You would have lied too.

        Since when does perjury mean much. Except when we are trying to get the president or vice president? WE definatly have some mixed signals going on here.
      • Perjury doesn't mean being wrong. It means being intentionally wrong.
    • ... there has ALWAYS been a way to reverse a DMCA takedown notice, in fact the DMCA tells you how to do it as it's included in the act. [recipe deleted]

      Seems to me that an ISP that takes down a customer's content in response to a DMCA takedown notice should provide a notice to the customer that includes (in addition to the complainant's identity and address so customer can sue HIM) a recipe for making the response required to let the ISP put the content back up.

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