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.'"

60 out of 100,000?

[jdhutchins]

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:60 out of 100,000?

[stratjakt]

I thought the same thing, I doubt a human would have such a low failure rate.

Re:60 out of 100,000?

[Dunbal]

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:60 out of 100,000?

[Seumas]

Yeah, unless you're one of the sixty.

Re:60 out of 100,000?

[Red Flayer]

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.

Re:60 out of 100,000?

[TubeSteak]

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.

Word games

[stratjakt]

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.

Re:60 out of 100,000?

[Red Flayer]

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.

Re:An error rate of

[Wingnut64]

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?

Viacom should get the brunt....

[CasperIV]

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 violated the law by using the DMCA on material that was not their own, and on the other, they infringed on the rights and free will of the people who's material they had taken down. They are just trying to use the same tactics the RIAA uses when they attack a massive group of individuals and don't care about collateral damage. In this case, just like the fail RIAA lawsuits, the collateral damage has a chance to fight back.

Re:An error rate of

[Anonymous Coward]

Sure it's a low error rate. I mean anyone sending out 100,000 notices is bound to make a few mistakes.

And that's exactly the problem. These DMCA takedowns are not random emails saying "oh, might want to review this file when you get a chance", but are part of a legal process. Once the notice has been sent, the material has to be taken down. The power of these notices is very large, and hence the potential for abuse is large.

A DMCA takedown notice includes the language "under penalty of perjury" because they are legal notices and need to have actual legal weight behind them. (If it's merely a suggestion, then YouTube wouldn't be required to take down the material.) Making a few mistakes means you that you are guilty of perjury, and can be sued on that basis.

The low error rate is irrelevant. Those are 60 cases of perjury, and each one should be prosecuted. Perjury should not be taken lightly. Viacom should have been more careful before trampling people's rights. Yes, that means that they should not have sent out 100,000 notices without more careful attention. The answer is not to accept that "mistakes happen" but to force companies sending notices to BE MORE CAREFUL.

Also, the 60 errors did not merely receive a letter. Their material was taken off of the site. Yes they can re-upload it and probably didn't suffer much material harm. The point, however, is that their freedoms were limited, however minimally, due to Viacom's illegal actions. This type of abuse of the law subtly restricts everyone's freedoms, and I see no reason why we should let it slide.

Re:60 out of 100,000?

[Red Flayer]

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:I swear...

[maxume]

"One would be to vote for a government more sympathetic toward the citizenry as opposed to big business."

Are those things necessarily in opposition?