Victims Fight Back Against DMCA Abuse

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.'"

Here's one improperly pulled video

[Anonymous Coward]

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.

I swear...

[rbochan]

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."

Sue Google, you mean.

[Stonehand]

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 uploader before the deadline expires. If they didn't notify the uploader, their bad -- not Viacom's. If the subscriber was notified but failed to send a proper counter-notification letter, no lawsuit. Well, one more case -- if the subscriber was notified, sent a valid letter, and Viacom followed up with a lawsuit against the individual -- OK, then Google/YouTube is shielded from subscriber suits.

Re:FT

[Stonehand]

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 user's page -- Yoshi118. He's listed the episodes he's uploaded and appears to post a bulletin on next uploads. If it's easy for users to find, why would it be difficult for Viacom to find?

Re:Round and round the mullberry bush?

[91degrees]

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.

OTOH

[sakusha]

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.

Re:Round and round the mullberry bush?

[The Empiricist]

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]

The problem is ...

[ad0gg]

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 procedure, a copyright owner submits a notification under penalty of perjury, including a list of specified elements, to the service provider's designated agent.

DMCA Text [copyright.gov]

FOSS counterattack

[Ungrounded Lightning]

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 on the line and you may find more lobbying against DMCA. Meanwhile, guys with big money for big lawyers will be fighting back - and anything THEY come up with can be cloned for use against the MAFIAA.

Since the real point of going against DMCA abusers is to eliminate (at least) the abuse potential of DMCA, getting more big guns fighting on that side of the battle is on-topic.