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?'"

Comments

because.

[User 956]

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]

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:because.

[Sancho]

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.

Re:because.

[Sancho]

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 up until an injunction brings it down. At least, in theory.

All of this is actually one of the parts of the DMCA that I'm mostly ok with. Yes, it can be abused (like most laws), but before the DMCA, sites like Youtube would have been responsible for their users copyright infringement--and sites like that probably wouldn't exist very long.

Then again, Viacom is claiming that Youtube owes them money from infringements hosted on their site. If the DMCA fails to shield, it will become completely useless in my eyes. We'll see.

Re:because.

[zerocool^]

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 holds water. I think only the copyright holder or a legal representative has standing to contest it.

I am not a lawyer, and I know there are a few out there on slashdot, could one of them comment? Who has legal standings to proceed in civil matters?

~Will

Re:because.

[squiggleslash]

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 shielding, a compromise was set up that would make it easier for copyright holders to have works taken down, but in a way that would backfire and be rendered sterile if they abuse it. In order for this to work, copyright holders must have an effective system to do this, so the hosting company being required to take down the content immediately (if they want to not be liable) was a reasonable part of the compromise. Remember that in many cases, timing is of the essence - someone who, for example, uploads for free distribution a movie the day before it's released in theaters could have a devastating effect on the copyright holder's ability to recover the costs of making that movie.

As soon as the notice is received, the person responsible for the content being uploaded in the first place can challenge the original notice, and if they do, then the content can be immediately put back up, again without the hosting company being liable. If the original notice is then shown to be false and in bad faith, the usual laws about making false statements on a legal document take over.

So, at worst, someone being mischievous might be able to have content they don't like removed from a website for a few days (depending on the organizational skills of the hosting provider), but wouldn't be able to do it permanently, and would run the severe risk of legal sanctions for what they've done.

The system isn't perfect, but it's a legitimate compromise. Yes, someone can play havoc with the mechanism, but likewise they could also employ a team of 31337 h4x0rs to achieve the same effect. In both cases they'd have the content removed for several days, and in both cases, they run a severe risk of having the law turn against them.

Not entirely.

[jd]

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]

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

Re:Not entirely.

[Gordonjcp]

and the BBC ultimately issues the broadcasting licenses themselves.

Actually, OFCom does.

Re:Not entirely.

[cpt kangarooski]

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)

Yeah. That's because the DMCA sucks

[91degrees]

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.

"Potentially embarrassing"

[ettlz]

"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?