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.'"

Comments

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?

[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?

[Anonymous Coward]

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!

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?

[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.

Here's one improperly pulled video

[Anonymous Coward]

Here's One video that was improperly pulled (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."

Re:I swear...

[iminplaya]

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 the fall. The people who arrange all this will walk away very rich indeed.

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?

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.

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.

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 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, 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."