US Air Force Issues DMCA Takedown Notice

palegray.net writes "Threat Level brings us the story of the US Air Force's use of the DMCA to forcibly remove a 'Cyber Command' recruitment video that they had previously thanked Threat Level for running. The article notes that US government works are not even subject to copyright, but this fact didn't stop YouTube from caving and taking down the video."

Comments

Isn't this against the law?

[djcapelis]

Wouldn't the air force have to claim that they were in fact the copyright owner of this video to file a DMCA notice? Doesn't that mean YouTube or the person who posted it could actually just go ahead and file suit against the government since this is a false claim?

Is there someone who'd like to provide an insightful comment and then proclaim IANAL on this one?

Re:Isn't this against the law?

[jlarocco]

Read the Wikipedia entry the OP posted. It says: "The federal government can hold copyrights to works when they are transferred to it, as can happen with work produced by contractors."

The Air Force almost certainly paid a contractor to make the video. Thus (assuming Wikipedia is correct) they could legally own the copyright.

Re:Isn't this against the law?

[Anonymous Coward]

Considering that hiring a contractor is an outside case, it seems fair that the government prove that the only people ever involved in making the video were all contractors. Every single person involved in the video (I'm betting there's a nice long list of credits at the end of it) should be questioned, in court, to find if at the time they were employed by the government. I'm willing to bet in the case of something such as a video, while contractors would be involved, there would also be some government employees involved, as actors or otherwise, muddying the copyright waters. Those sections of the video involving anyone working for the government should be permitted to be stripped from the video and made public.

And, of course, this is why the DMCA is bad, since it's an act-first, ask-questions-later, law. Hopefully the affected individual will stand up for their right to a hearing by posting a counter notification, forcing the government's hand. It's not likely they will, though.

Re:Isn't this against the law?

[cpt kangarooski]

so the copyright does exist but it is held by the public

While that is one way of imagining the public domain, I suppose, it's very convoluted and even then not really accurate. In fact, for public domain works, there is no copyright at all. Such is the case for uncopyrightable works, as well as works that were copyrighted, but where the copyright term has expired. In the case of US government works, they are uncopyrightable ab initio; there is never a copyright, ever.

Of course, without knowing some more details about the work in question, I can't say whether it actually is a US government work or not.

Re:Isn't this against the law?

[terrymr]

You should probably check your state bar's rules - lawyers are not permitted to make false claims under any circumstances (although the federal government has sought to exempt prosecutors from these rules).

Re:Isn't this against the law?

[Dachannien]

Exactly. Using their own servers is certainly an option for Wired, but if they really wanted the material to stay up on YouTube, sending a counter-notice would have been the appropriate response. In this case, at the very least, it could lead the actual copyright holder (if there is one) to file their own takedown notice, which (if they exist) they should have done in the first place.

Re:I don't get it

[Scrameustache]

From TFA:

the Air Force website promoting the video contains this language in its privacy policy: "Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied."

Apart from that, I wonder why the Air Force is so keen on keeping people from watching their commercial. Desire for control, I'd wager.

Fraud much?

[LiENUS]

This sounds like an instance of blatant fraud. The lawyer willfully committed perjury and didn't even go through the proper channels on her end. It sounds like she wanted to try and further her career by taking initiative and bringing down the hammer for her client. Except she did not do it with her clients permission and even went against what the client had previously indicated. At best she should be liable at worse disbarred.

Somewhat related

[symbolset]

Depictions of people are restricted by their rights of privacy and publicity. You may object to the unrestricted release of your picture or video into the public domain, even if you consented to be in a video released by the US government for a particular purpose.

This is not precisely on point because the notice was from the government and not the actors, but it's an issue for people who would republish US government works so I thought I'd point this gotcha out to everyone here.

The US government publishes an amazing quantity of content that enriches us all. I use some of it in web design. But not pictures of people without their permission.

Is the lawyer an intern?

[slashqwerty]

The DMCA takedown notice has amateur written all over it. From the notice:

I hereby certify under penalty of perjury that the information in this notice is accurate...

Nobody says that because the law doesn't require it. The law only requires the lawyer to state under penalty of perjury that they represent the person/organization they claim to represent. The rest of the notice only has to be made with a good-faith belief that it is accurate.

She also states:

I have a good faith belief that none of the materials or activities listed above has been authorized by the U.S. Air Force, its agents, or the law.

The Air Force actually asked Wired to publish the video. Their own website even claims it may be copied and distributed. The takedown notice was supposed to go through the Air Force marketing cheif's office but never did. I suspect Ms Pikser isn't the most qualified of lawyers.

Re:Is the lawyer an intern?

[Tassach]

Could anyone living in Ms. Pikser's state file a complaint with the state's Bar Association against her, or would it have to be some standing in this particular case?

AFI confusion

[purpleraison]

I can tell you beyond all doubt that the Air Force take-down notices are nothing more than 'cyber-bullying'. The USAF is so wrapped-up in not overstepping their AFI (Air Force Instructions) , that they would easily let anything go if it didn't violate their AFI's. Conversely, they will spend like 5 months making sure their AFI is being violated; if the AF IS being violated they would act on it -- EVEN IF IT IS DETRIMENTAL TO THE AIR FORCE.

Crazy, but true.

Govt != Public domain ?

[Lewrker]

Even if the copyright can be transferred to the government, wouldn't that automatically mean that it belongs to the people ? Or are they admitting that, in fact, the government is a corporation owned by lobbyists and criminals, and not just a gathering of representatives of the nation ?

Re:Let's Ask the Lawyer!

[Em Ellel]

I, for one, think we should ask Ms. Pikser (the lawyer who filed the complaint) why she thinks the work is copyrightable, even though it was made by the government. The DMCA notice conveniently says her email address is mpikser@reedsmith.com. For good measure we should probably all ask her. You know, just so we can compare responses... You can certainly ask, but its most likely she thinks so because she knows the law and you don't. Government can and does own copyright on many works. Why do you assume this video was made by the government? It is very unlikely it was. It was most probably contracted out to a non-government entity, which places the copyright ownership squarely and legally in Air Force's hands.

-Em

Re:Overblown issue

[adona1]

It's becoming all too common that they remove videos without apparently needing verification though. I realise that under the DMCA a company has to act when notified that they're hosting infringing material, but ever since they were bought by Google they've become the most tread-lightly-offend-none company around. Surely with the huge resources available to Youtube they'd be able to actually double check these DMCA requests to make sure they actually have merit?

IANAL, if you hadn't guessed... ;)

Re:Overblown issue

[Daniel Phillips]

It's becoming all too common that they remove videos without apparently needing verification though. I realise that under the DMCA a company has to act when notified that they're hosting infringing material, but ever since they were bought by Google they've become the most tread-lightly-offend-none company around. Surely with the huge resources available to Youtube they'd be able to actually double check these DMCA requests to make sure they actually have merit? Speaking as a Googler, I find the tone of TFA unwarranted, though to be sure your own comment is pretty mild. But how about just drawing attention to the problem and see what happens? Speaking for Googlers in general, doing the right thing really is a big deal for us. That don't be evil motto is not just PR spin, it is real.

Youtube erases everyone, they don't care about you

[Spc01]

Well yes .. Youtube sucks because they remove everything. If i want to screw some people and send some letter to youtube to remove some videos ... they would remove them (not even knowing me) by any anonymous request.. My accound was removed without and reason and i asked them why did they removed me .. and never got an reply. I've also seen some people who filmed their own house and got removed from youtube .. why ? i don't know .. maybe because youtube just erases all the videos that some users are bitching about (maybe his house was too beautiful and someone send a DMCA compaint that that video is copyrighted). SO FORGET YOUTUBE and move to another side that's more fair and doesn't erase everything.

Re:Overblown issue

[dissy]

It's becoming all too common that they remove videos without apparently needing verification though. I realise that under the DMCA a company has to act when notified that they're hosting infringing material, but ever since they were bought by Google they've become the most tread-lightly-offend-none company around. Surely with the huge resources available to Youtube they'd be able to actually double check these DMCA requests to make sure they actually have merit?

IANAL, if you hadn't guessed... ;)

The problem with that is, if youtube/google/whoever decides NOT to use the safe harbor clause in the DMCA, and not take the video down & contact the poster, then they instantly lose all protection under the safe harbor clause.

At this point, if youtube/google/whoever makes ANY mistake in their double checking the request, they are automatically liable for any damages to the copyright holder if it turns out the take down notice was correct.

In other words, they can take on the legal responsibility (and cost!) of fighting this battle, and either win where nothing happens, or lose where they get screwed pretty hard, or, they can do as the safe harbor clause states as law (no cost) and if the notice is correct or not, either way there is no way youtube/google/whoever can be sued for a cent, since they followed the law.

If i asked you to do extra work on your part, that brings a non zero chance you will have to pay a lot of legal fees, or you do no extra work and are guaranteed under the law to be protected against any lawsuit, and you got hundreds of these requests a day, which do you think you would do?

For a company, they are going to choose the path that costs them nothing up front and nothing later. Not the path that costs them money up front and a non zero chance of costing a whole lot more later. :}
Actually, as a person, I would choose the same thing.
Unless you are trying to make a point or example out of something (a potentially expensive one), it would seem silly not to.

[RANT ON] (to the parent poster, this isnt directed at you personally, please don't take offense.)
The whole problem is, there is already a legal method to take care of this, which involves one single email. But instead of people using this, they bitch and moan about it instead.

If they don't take the video down, they can be sued. However, at this point it is up to the person that posted it in the first place to email them a counter-notice under the DMCA. One simple email. At this point, youtube is legally required to PUT THE VIDEO BACK UP or risk a lawsuit from the video poster!

If you aren't actually violating someone elses copyright, why would you not do this? Obviously the real answer is ignorance of the law, but for as much as slashdot types complain about this law, you would think they if anyone would know a little something about it.

If you are in the right, send one simple email, the video goes back up, and the matter is basically over with.
At that point the person falsely claiming copyright can sue you, and you can royally screw them over in court for doing this to you, if you cared to take it that far. And if you are that pissed, why not do just that?

The only reason not to send this email reply back is if you really are violating someones copyright, and know you will lose the case in court on facts alone. And if that is the case, don't bitch because you got caught.

A whole lot of copyright law is fucked up right now. This is one example of a law that works IN OUR FAVOR! Please for the love of the internet, use it, destroy these IP trolls in court, and stop trying to get the good part of the DMCA removed!
[/RANT]

I'm sorry for the rant.
But I don't WANT youtube to pretend they know better than I do if the video I posted is copyrighted by me or not. I know if its a copyright violation or not. I should be the one to choose what I tell them, either a) its not a copyrig