Dodgey DMCA Use May Lead To 'YouTube Veto Power'

BillGatesLoveChild writes "Bob Cringely reports that an interview potentially embarrassing to Steve Jobs was taken off YouTube. The interview was from Cringely's 1990s show Triumph of the Nerds. YouTube said it responded to a DMCA complaint made by NBD Television Ltd in London. Trouble is, NBD is not the copyright holder. They have nothing at all to do with the show and don't even sell it. PBS, who made and holds the copyright said they knew nothing of the complaint. Cringely tried to contact NBD Television Ltd who wouldn't respond. Neither would Youtube, who only speaks by form letter. 'Why did NBD Television make the complaint? Why did YouTube blindly enforce it? Is Steve Jobs behind this, or is it just another media company misusing the DMCA, at that, not even with their own copyrighted material? Why should a London-based company be able to issue DMCA takedowns, yet not be liable when they abuse the law?'"

You just answered your own question

[Nom du Keyboard (633989)]

Why should a London-based company be able to issue DMCA takedowns, yet not be liable when they abuse the law?'

You just answered your own question. Someone got them to issue an invalid takedown notice because they can't get in trouble for doing so like any USA company that wasn't Oregon PBS could.

Not entirely.

[jd (1658)]

London is outside US jurisdiction, unless Tony Blair is off his medicines again, which raises all kinds of jurisdiction issues. The copying (not storing, copying) would have occurred in England. This is an English company. English law is the only law that can be applied to an alleged civil offense in England. Unless someone was planning on applying for an extradition order against YouTube's servers, I don't see how anything that might have transpired along the banks of ye olde Thames could possibly have anything to do with an American law.

Oh, and they CAN get into trouble. A lot of trouble. The ITN network has considerable control over the non-BBC broadcasters, and the BBC ultimately issues the broadcasting licenses themselves. There is also the Governmental broadcasting watchdog, which has the power to fine (and otherwise cripple) broadcasters who break the law. The Listener's Association is nowhere near as powerful a lobbying group as it once was, and is generally highly conservative, but even they would likely rip into a rogue broadcaster like a pack of rabid wolves on speed.

In short, if enough people in Britain actually wanted to kick up a fuss and applied sufficient pressure, anyone involved in the signing of this DMCA application could find themselves begging in Hyde Park sometime next week. Of course, that's if people complain. If they don't and those with a voice show all the verbal muscle of a wet dishcloth, then nothing will get done and nobody should be surprised. Laws are not broken by corporations because nobody finds out (they usually do). Laws are broken by corporations because even when people know, nobody does anything any different, and the corporations know and expect this. Righteous indignation on a blog site may be fair comment, but if that's where you leave it, you might as well not have bothered.

Re:Not entirely.

[rohan972 (880586)]

London is outside US jurisdiction, unless Tony Blair is off his medicines again, which raises all kinds of jurisdiction issues. The copying (not storing, copying) would have occurred in England. This is an English company. English law is the only law that can be applied to an alleged civil offense in England.

Actually, British copyrights are enforceable in the US, and vice versa. It's called the Berne Convention [wikipedia.org]

Re:

[Sancho (17056)]

I was aware that British copyrights were enforceable--I was not aware that they were enforceable under the specific laws of the US. Seems to me that they would have to send a takedown notice under the Berne convention rather than under the DMCA.

Re:Not entirely.

[cpt kangarooski (3773)]

Actually, that is untrue. The Berne Convention -- which is utter crap, btw, and should be gotten rid of and not replaced -- does not claim to make a copyright granted in country A enforceable in country B. Rather, it deals with the granting of copyrights; if a work is created in country A, and is copyrightable in country B, then country B must also grant a copyright on the work. It also deals with setting a minimum for what is copyrightable, and how long those copyrights last, etc.

So if you are a British author, then you likely have a US copyright, but it is only that copyright, and not your UK copyright, that can be enforced in the US.

Indeed, you cannot make a claim in the US founded on the Berne Convention; it is not a source of US copyright law. (See 17 USC 104(c) for this)

Re:Not entirely.

[Gordonjcp (186804)]

and the BBC ultimately issues the broadcasting licenses themselves.

Actually, OFCom does.

because.

[User 956 (568564)]

Why did YouTube blindly enforce it?

Because they're required by law to. A DMCA takedown request is basically a statement, made under penalty of perjury, that the information is correct.

Re:because.

[supersat (639745)]

From what I understand, they aren't actually required to act on a takedown notice. However, if they fail to do so, they are no longer shielded from liability if the claim is valid. On the other hand, if they do act on the notice, they can't be held liable if the claim is bogus. So, most service providers will act on ANY DMCA notice, regardless of validity, just to be on the safe side.

However, I do know that some service providers have refused to act on certain DMCA notices where it's clear that issuer of the notice has no rights to the material in question.

Re:

[Sancho (17056)]

Nope. That's the fun of the DMCA.

The DMCA basically makes it so that sites such as Youtube are not considered to be hosting the content--instead, whoever put it on their servers is. However, because Youtube is hosting the content (and can remove it), the DMCA allows a person to claim ownership and demand that they remove it. If Youtube does anything other than remove it, they become the content hoster in the eyes of the law.

If the actual hoster files a counter-claim under the DMCA, the content goes back

Re:

[squiggleslash (241428)]

Nope, but don't read too much into that.

The idea of the DMCA here was to shield larger ISPs (or, to be more specific, internet service companies, including web hosting companies, that have a huge number of customers whose activities they cannot possibly track or be responsible for every action of, so not just GreatHosting.Web, but everything from Geocities.com to, whatever Viacom and Mark Cuban might argue, YouTube) from being responsible for the copyright violations of their customers.

To do this shiel

Re:

[zerocool^ (112121)]

Because they're required by law to. A DMCA takedown request is basically a statement, made under penalty of perjury, that the information is correct.

Yeah, but when I was into webhosting, every DMCA letter we got also stated that the person contacting us, under penalty of perjury, was affirming that they were either the copyright holder, or a legal representative thereof.

I mean, if I email youtube and say "Take down that clip of the Morning Show, I swear that it is the property of CBS"... I don't think it ho

Re:because.

[jacksonj04 (800021)]

Yep. Of course, the company the notice is filed against is not obliged to respond, so if they *know* they're not breaking the DMCA then they can safely ignore the notice. If there's any doubt, however, it's best to act since if you receive a notice but ignore it you lose on all the protection clauses of the DMCA.

Re:because.

[Sancho (17056)]

The DMCA includes a clause for the submitter of the content to refute the takedown. Once they do, the hosting company puts the material back up and the courts are supposed to take over. In this way, the DMCA should not be abuseable to continuously remove speech that a person doesn't like, but has no ownership over.

Of course, it doesn't always work out that way [slashdot.org].

Keywords?

[mochan_s (536939)]

I've found that DMCA removal patterns are through certain keywords. Company X puts in a few keywords and then sends DMCA takedown notices to everything that shows up in the search.

Maybe the video had different keywords than the other triumph of the nerds clips?

Re:Keywords?

[plasmacutter (901737)]

this smells like class action material for any attourney enterprising enough to gather the needed client base.

though i know better on the front of private winks and nods, the public position of the government is that any invalid/abusive DMCA C&D is supposed to be punishable by perjury and/or other penalties (forgot exactly what those penalties were but they were pretty stiff--on paper).

This said, the practice of "keyword trolling" the internet with a bot that then generates DMCA takedown notices without any reasonable investigation could and should be targetted for class action.

If i remember correctly, however, the EFF tried to do this once before and was dismissed via some rather underhanded interpretations of what constitutes "legal standing".

Huh.

[0xdeadbeef (28836)]

Why does this smell familiar? [tzywen.com]

The relevant quote is well, so very relevant:

"Ultimately it comes down to taste. It comes down to trying to expose yourself to the best things that humans have done and then try to bring those things in to what you're doing. I mean Picasso had a saying, he said good artists copy, great artists steal. And we have always been shameless about stealing great ideas and I think part of what made the Macintosh great was that the people working on it were musicians and poets and artists

Yeah. That's because the DMCA sucks

[91degrees (207121)]

YouTube are obliged to do this. It's unreasonable for them to track down the copyright holder.

The response is to file a DMCA counter notice, on the grounds that it doesn't infringe NBD's copyright. YouTube will put it back. NBD can then take it up withthe person who posted it.

Re:Yeah. That's because the DMCA sucks

[ScrewMaster (602015)]

Lack of obligation for the content holders to check.

Obligation? Come on, with the rapid-fire way these suits have to be managed for sites like Youtube, you want them to be obligated to verify the complaint? No chance in Hell. Smaller companies would never have the resources to do this. Youtube would have failed long before the Google purchase.

I think you misunderstood him. "Content holder" probably refers to the person claiming to own the copyright (in this case, the London-based firm), not the company disseminating the information (YouTube.) And he's right ... look at the collateral damage being done just from Viacom's efforts alone. Lots of stuff that isn't even owned by Viacom is being taken down because Viacom is incapable/unwilling to verify their takedown requests. They cheerfully admit that a significant percentage of their notices are in error, and when it turns out that somebody else gets hurt, so sad too bad. Viacom (and anyone else that decides to issue one of those things) should be required to be goddamn sure it's their content being misused: if not, then they are the ones misusing the law and there should be consequences. Should my rights under the law have to be violated so that someone else can protect theirs? I don't think that's right, but that is what is happening.

This is a case of the law giving way too much Power to the People ... and Congress knew what it was doing when it did it. The only purpose being served by this section of the DMCA (well, of the DMCA in its entirety, really) is to line the pockets of IP attorneys. The rest of us aren't getting much from it.

The fact that there's a viable weapon if you want something taken down for a short time.

That's fair, but managing copyright is a difficult problem. I'd say this portion of the DMCA got a lot of things right, overall.

Yes, copyright is a thorny problem indeed. The problem comes in when you set up a law that is just sooooo easy to abuse, that can wreak havoc when it invariably is, and when there is zero penalty for abuse. Whenever you remove accountability from any system operated by human beings abuse will occur, with as much certainty as the Sun rising tomorrow. It's human nature and nothing will ever change that, so good law should be written to accommodate that fact. For that reason alone, the DMCA is not a good law.

Put it this way, what is the big complaint the copyright holders (some of them) have with information sharing, either peer-to-peer or a more centralized operation like YouTube? Well, I'll tell you: it's the fact that their legal rights are being infringed with no accountability for those who are doing it. So yes, the DMCA has given rightsholders a weapon, but like the Internet itself it is indiscriminate. Worse, because of the carelessness and irresponsibility of those wielding that weapon, it is having negative effects far beyond its stated purpose.

Congress was far too trusting.

Everyone can be a copyright holder!

[ISurfTooMuch (1010305)]

I'm beginning to wonder if anyone, and I mean ANYONE, could fire off a DMCA request and get something taken down. I bet it'd be fairly easy, since many of these things would come by e-mail, and spoofing a domain in the From field is trivial. And i seriously doubt that most organizations bother to check the validity of such requests. They likely get them, read them in a cursory fashion, and then take the referenced content down.

And perhaps it's time to test the system, preferably on the content of the big media companies and politicians, especially the latter. Once those who support the DMCA find out how easily it can be misused in a way that harms them, then you'll see then have a miraculous awakening to its problems.

Re:Everyone can be a copyright holder!

[hax0r_this (1073148)]

This, is brilliant.

I don't mean to suggest anything, but hypothetically, someone could go through and compile a list of politicians who support the DMCA, then find any content helpful to their campaigns on YouTube or whatever, and spoof takedown notices for that content. Then go to the politician's own website, find any videos they have, and send the politician himself takedown notices for those, preferably in the name of the politician's constituents. Then go the site of any organization which supports the politician and spoof more takedown notices in the politician's name. This way you create a huge mess for said politicians to clean up, and all as a result of their beloved DMCA.

Not to suggest anything of course.

Re:Everyone can be a copyright holder!

[Speare (84249)]

Never tick off the incumbent who could just write new laws to throw YOUR ass in jail.

Re:

[LordLucless (582312)]

You'd be committing perjury with every one you sent. And you can bet the government would be much more likely to prosecute individuals pointing out their own stupidity/corruption than they would corporations actually exploiting the law.

"Potentially embarrassing"

[ettlz (639203)]

"Potentially embarrassing"? Er, how? From TFA:

Steve Jobs: The only problem with Microsoft is they just have no taste, they have absolutely no taste, and what that means is -- I don't mean that in a small way I mean that in a big way.

Yeah, and? Where's the embarrassment?

I have a problem with the fact that they just make really third rate products.

By the way, does anyone know what time it is?

Re:"Potentially embarrassing"

[BillGatesLoveChild (1046184)]

That's not the 'Potentially embarassing' part Cringely refers to, which is Steve Job's "Good Artists Copy, but Great Artists Steal" quote. Mildly inconvenient if you're in a Patent Law suit. But there is a funny story behind the part you cite. Jobs *did* feel embarrassed about that (for different reasons), and called up Gates to apologize. It went like this:

Jobs: "Bill I'm calling to apologize. I saw the documentary and I said that you had no taste. Well I shouldn't have said that publicly. It's true, but I shouldn't have said it publicly."
Gates: "I'm glad you called to apologize, Steve, because I thought that was really an inappropriate thing to say."
Jobs: (smirking uncontrollably) "You know it's true, it's true you have no taste."

Andy Hertzfeld (Original Mac Programmer) was there when the call was made: http://www.pbs.org/cringely/nerdtv/transcripts/001 .html [pbs.org]

Canadian Politics, too

[V50 (248015)]

Here in Canada, someone either supporting, or associated with the opposition Liberal Party is apparently using copyright claims to remove pro-Conservative Party videos:

http://www.thepolitic.com/archives/2007/03/30/libe ral-party-activists-censoring-youtube-videos-criti cal-of-stephane-dion/ [thepolitic.com]

Although I'm a Tory myself, it wouldn't suprise me at all to see a Conservative or Dipper engage in the same behaviour.