My friend Patterico has done it again — but, then again, it has been done, as I’ll remind shortly. The scoop for today? In a post about one Songhai “Sunny” Armstead, he links to a video on YouTube of some embarrassing campaign comments — which was promptly pulled down by YouTube per a DMCA claim by someone named Gail Copeland, to wit:
In the post I did about Armstead’s disgusting views, I linked the full video of her remarks. When you click on the YouTube URL for that video now, you see this:
Looks like I got someone’s attention, huh?
So who is Gail Copeland, the person who filed the copyright claim? Well, for one thing, she appears to be a supporter of Armstead’s. (Surprise!)
And all that will have to be worked out. Surprisingly, to some extent, the fact that it’s so easy to quash expression by a unilateral claim of copyright infringement is something that should have been worked out some time ago.
It was just this, as those who did not come in late will recall, the impetus for the founding of the old Media Bloggers Association. There the New York Times abused the DMCA by yanking a parody of its correction page off blogger Bob Cox’s server. I helped out a little. That’s all gone now, as is Bob’s blog, but the whole thing is preserved for the ages at this link.
Problem solved? For Bob, yes, but not for the next person to say something others did not want heard — especially in the political realm, as I explained to America per the video at right, which was actually a variation of the DMCA problem involving a spurious claim of trademark infringement that led to a politically-motivated takedown:
I reported; you decide. That particular problem got solved too, but the DMCA system (which YouTube modeled its trademark-claim procedures on) is, obviously, is still very broke after all this time. And everyone paying any attention knows it: Here’s Mike Masnick, here’s Matt Schruers – everybody’s been there, and I don’t mean on vacation.
What if someone sends a takedown notice that is authorized by the law, and does so in bad faith? The law provides that –
[a]ny person who knowingly materially misrepresents under this section . . . that material or activity is infringing . . . shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer . . . as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing . . ..
But there is a hidden nuance to the law: what if the takedown notice demands takedown of a work that the complaining party owns, but where the use that is the subject of the notice is protected by the copyright fair use doctrine? In other words, what if the takedown notice is based on a misrepresentation that a fair use is infringing? Should such a notice be viewed as a misrepresentation, and the complaining party subject to penalties?
Lee wrote this when a federal court in Massachusetts was in the process of answering just that question. He wasn’t optimistic about the outcome… rightfully so (back to Masnick):
This seemed like a clear case of abusing the DMCA to stifle speech, and we noted that it might be an important case in determining if the DMCA’s 512(f) clause had any teeth. 512(f) is the clause that provides for damages if you file a bogus DMCA notice (technically if you make “material misrepresentation” in the notice). The key question: is sending a DMCA notice when the use is clearly fair use a “material misrepresentation.” The EFF jumped in to help argue this point, freaking out the MPAA who insisted that having to consider fair use before filing an abusive, censorious DMCA takedown is crazy talk.
Unfortunately, it appears that the judge has now agreed with the MPAA that Congress probably didn’t intend for DMCA filers to have to consider fair use, saying that if that was the intent, Congress should change the law. The argument made by the court is that the takedown process was designed to be “expeditious” and having to consider things like fair use make it too slow.
The fact is, you can object to a takedown notice, and it’s not that hard to get something that was taken down put back up… eventually. But besides the fact that this requires time, effort and perhaps money to be spent by a person who was acting well within his rights to publish material that is not infringing (whether due to fair use or otherwise), that “eventually” can be of great significance. This is most significant, in the public sense, in the context of elections, where the damage done by an illegitimate DMCA takedown is irreparable. But in the private sense, it’s the same problem. As Amanda Levendowski says, “Although there are remedies available to those whose work is mistakenly removed, including counter-notification under §512(g)(3), few artists are aware of these remedies. Even fewer are able to spend the time and money necessary to fight a bogus take-down notice.”
Does this sound constitutional to you?
So far, judges haven’t lost a lot of sleep over this, mainly because so few victims of DMCA abuse are motivated or sufficiently funded to get the right case in front of them. When will Congress get off its… vacation… and act on reforming the instant, unauthenticated DMCA takedown process that abuses both copyright law and free speech?
UPDATE: Plus ça change, plus c’est la même chose, or what:
— Patterico (@Patterico) June 2, 2014