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

New Air Force Tactic?

[Philotic]

According to a leaked memo from the Department of Defense, the Air Force may begin dropping DMCA take down notices on Iranian nuclear facilities as early as next week.

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?

[palegray.net]

There's a Wikipedia entry on government works and copyright that addresses the issue nicely.

Re:Isn't this against the law?

[Scrameustache]

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? Dear Internet Service Provider:

This letter is written in response to your notification to me of a complaint received about my web page(s). The pages in question are:

(insert list of URLs here)

My response to this complaint is as follows:

Allegations of Copyright Violation / Digital Millennium Copyright Act
The claims of copyright violation should be rejected because the material in question is not copyrighted. It is in the public domain and may be reproduced by anyone.

This communication to you is a DMCA counter notification letter as defined in 17 USC 512(g)(3):

I declare, under penalty of perjury, that I have a good faith belief that the complaint of copyright violation is based on mistaken information, misidentification of the material in question, or deliberate misreading of the law.

My name, address, and telephone number are as follows:

(address here)

I hereby consent to the jurisdiction of Federal District Court for the judicial district in which I reside (or, if my address is outside the United States, any judicial district in which you, the ISP, may be found).

I agree to accept service of process from the complainant.

My actual or electronic signature follows:

(electronic or actual signature here)

Having received this counter notification, you are now obligated under 17 USC 512(g)(2)(B) to advise the complainant of this notice, and to restore the material in dispute (or not take the material down in the first place), unless the complainant files suit against me within 10 days.

IANAL, I got this form letter from this site.

Re:Isn't this against the law?

[Anonymous Coward]

Doesn't the lawyer signing the DMCA takedown notice have to swear under the threat of perjury that their information is accurate to the best of their knowledge? I think it is time we start targeting the individuals who are signing these notices. The government can't shield these lawyers in a civil suit if they committed perjury in the course of their duties. If we sue and bankrupt enough of these lawyers then perhaps the government will find it harder to get replacements who will send DMCA notices over materials that belong to the public domain.

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?

[djcapelis]

Okay, so there might have been an issue with the copyright, but it's still murky because of this statement on their website:
"Information presented on the Air Force Recruiting website is considered public information and may be distributed or copied."

In which case the copy was valid and licensed even it if was under copyright. Which means the notice seems to be false either way.

Re:Isn't this against the law?

[gronofer]

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?

Technically, yes, many people will avoid quibbling over legal details when dealing with a heavily armed organisation that thinks it's above the law.

In the same way, it takes bravery to say no when mafia or radical religious groups issue a "take down notice".

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?

[jlarocco]

I'm not sure it would "muddy the copyright waters." If the video had Air Force employees acting, their performances were public domain. And the contractor took those public domain performances, arranged them and added stuff to create a copyrighted video. That copyrighted video was subsequently sold to the Air Force and had its copyright transfered over to them.

Re:Isn't this against the law?

[rtb61]

Just a reminder that the Air Force is a part of the government, so the copyright does exist but it is held by the public and, unless it is a matter of national security is subject to full public disclosure.

Now of course the US Air Force might be backing away from the video because in hindsight it makes them look stupid and childish but, it still exists and the US public is legally entitled to know what the US Air Force has in mind when it comes to disrupting and endangering their computer networks.

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:Isn't this against the law?

[FailedTheTuringTest]

Just to add a bit of detail to the above... the FAR and a US government FAQ indicate that while individual contracts can vary, the normal situation seems to be that the contractor retains copyright while the government gets a license to "reproduce, prepare derivative works, distribute, perform and display the copyrighted work". It is also true that the federal government can become a copyright owner if someone who owns a copyright assigns it to the government. So there are three possibilities:

1. The video was produced under contract, and the contractor retains copyright. If that were the case, the contractor could have written a takedown letter.
2. The video was produced under contract, and the contractor assigned copyright to the government.
3. The video was produced by government staff, and is not protected by copyright.

Re:Isn't this against the law?

[Trailer Trash]

They probably also licensed music to use in the video, which was not licensed for that particular usage (i.e. dissemination over the internet). While the Air Force might not own the copyright, there may be copyrighted material in it.

Re:Isn't this against the law?

[BobSutan]

Bingo. Anyone can file a DMCA takedown notice and per the law the provider must act. However, that same provider has to respond in kind if the claimed infringer challenges the copyright claim. Bottom line: Wired dropped the ball on this one by hosting on their own servers and not taking Youtube to task.

Copyright

[Detritus]

Copyright does not apply when the work is created by a government employee in the performance of his duties. When the work is contracted out, a copyright is created that may be assigned to the government by the contractor per the terms of the contract.

Re:Copyright

[SMS_Design]

Yeah. Just because you paid for it doesn't mean you should get to use it.

I could see it...

[Adambomb]

"Stop reverse engineering the plutoniums and uraniums, you knobs! Thats copy protected methodology you're trying to gather so that you get at least as much clout as north korea in world affairs as well as efficient long term power generation! Stop that.".

I don't get it

[Laguerre]

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.

Re:I don't get it

[Don_dumb]

Apart from that, I wonder why the Air Force is so keen on keeping people from watching their commercial. Because we can't have the terrorists copying them.
- it's best to keep these recruitment videos classified.

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.

Another link or two.

[palegray.net]

For those who didn't RTFA, here's a link to the actual takedown notice, and here's Reed Smith's website (the law firm that sent the notice on behalf of the Air Force).

Contracted work?

[Jugalator]

If it's work by a contractor of the US Gov't, with the ownership transferred to the gov't, it could still be copyrighted.

AFAIK, that's the only exception.

If it's work "prepared by an officer or employee of the US Gov't as part of that person's official duties", it's not copyrighted.

Re:Contracted work?

[Brother Phil]

This has also been covered by Boing Boing.

According to TFA, the notice was issued by the Air Force's lawyers, without the consultation or authorisation of the guy who deals with all IP issues.

According to Wikipedia, they are meant to be good enough lawyers to know better, but the talk page had been deleted, so maybe there's just been a big slanging match.

What did you expect?

[Gothmolly]

Why WOULDNT YouTube take the video down? They win government props, all-important in our era of growing corporatism, and maybe piss off the EFF and a few Slashdotters. 99.44% of the YouTube customer base does not even know what the DMCA _is_. It's nice to be indignant about it, but get real.

Overblown issue

[winmine]

This isn't about censorship, or even copyright really. Youtube will 'cave' to any polite request to have a movie taken down, provided you can give some creds to prove you made it. This is much more an issue of common courtesy, but then, that doesn't make for pop journalism.

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.

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

Let's Ask the Lawyer!

[letsief]

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...

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:Let's Ask the Lawyer!

[base3]

No, but the government building something using Linux isn't the same as the government *commissioning* Linux (too late for that). The work on top of Linux that the government commissioned would be public domain, not Linux. You're confusing existing copyrights with the commissioning of a new work paid for by the taxpayer.

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?

Indeed.

[Dopamine, Redacted]

After all, the nuclear configuration is like a "lock" that protects the "vault" of energy within the atom. Hitting that nucleus with a fast neutron (or a slow neutron if fizzle enough) is like "breaking into that vault" to "steal" the energy - right out of the matter. That's why we need protection for energy stored under nuclear "locks" to be just as strong as the laws that protect DVD movies.

Brilliant use of the streisand effect!

[Daniel Wood]

Before this takedown notice no one really gave two shits about the video. Now, EVERYONE wants to see it to see what the deal is. The best part, this was not intended. This is someone stepping out of their bounds and not going through the Public Affairs Office.

Re:Brilliant use of the streisand effect!

[jc42]

Well, yeah, but I thought that enough readers might not be familiar with the effect that a link to the wikipedia page would be useful. And that page makes mention of the famous Daniella Cicarelli sex video, which will further divert /. readers for the 10 minutes or so that it'll take to find it, download it and watch it.

Fun stuff.

(Besides, whoever reads article titles? Isn't that as bad as reading the articles?)

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.

Where I can see this Video?

[rkwasny]

Is this video available somewhere? I wonder what was so special about it