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Using the DMCA to Censor-Options for Dealing with Abusive Notices

I. Introduction

The rise of social media sites has expanded the power of users to express their opinions online. Sites like YouTube, Tumblr, and Instagram make it incredibly easy to share engaging, user-generated content (“UGC”) instantaneously. While transferring UGC is still possible via peer-to-peer (commonly abbreviated “P2P”) networks, it is far less convenient. Using a P2P network requires installing appropriate software both to download and to play content. Finding content in the first place, either with unsophisticated search programs or by scouring forums, is burdensome as well. In contrast, to watch popular UGC like The Sneezing Baby Panda,1 Potter Puppet Pals: The Mysterious Ticking Noise,2 or "Let's Go Crazy" #13 viewers need only direct their web browser to YouTube. The site’s search bars autofill with popular content4 and related videos appear during and after the selected video. Perhaps most convenient of all, once the user finds the content they are looking for, they need only press play to view the video right in their browsers. Social media sites are thus popular targets for the Digital Millennium Copyright Act (“DMCA”)5 takedown notices that were once used to curtail the rampant pirating of television, movies, and music on P2P networks.

While P2P networks remain the home of pirated content, on social media sites creative, personal content flourishes. Entire YouTube channels are devoted to critical, sometimes unpopular, commentary.6 The ease of accessing these commentaries on social media sites understandably makes their targets uncomfortable. Unfortunately, some rights holders turn to the DMCA, and its notice and takedown procedures,7 to have content they merely find offensive removed. This use of the DMCA is, at best, irresponsible and, at worst, downright abusive.8 This article generally describes the DMCA notice and takedown procedures, as well as options for responding, to help those who believe they have received an abusive notice understand their options. The article also describes some of the consequences of abusing the procedures. Further, the article discusses YouTube’s own content removal system, which operates similarly to the DMCA notice and takedown procedures.

First, it should be noted that the DMCA is a very complicated law, passed decades before the boom of social media sites. Despite this, courts continue to apply the DMCA to actions users take on those sites, resulting in contours to the law that are beyond the scope of this article.

II. The DMCA Notice and Takedown Procedures

Section 512 of the DMCA limits the liability of service providers,9 like YouTube. It contains three key provisions. First, the requirements for service providers to qualify for limited liability. Second, the requirements copyright holders and end users must fulfill when filing notices and counter notices, respectively. Third, it provides a cause of action for misuse of either the notice or counter notice provisions.

Section 512(c)10 limits the liability of service providers. In order to receive the safe harbor protection of the DMCA, service providers must, among other things, immediately remove allegedly infringing material when they are notified by the copyright holder.11

Section 512(c) also requires the copyright holder to have a good faith belief that the material complained of in the notice is infringing.12 Similarly, section 512(g)13 requires the user to have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification before replying with a counter notice.14

Lastly, section 512(f)15 creates a cause of action against anyone who “knowingly materially misrepresents . . . that material or activity is infringing, or . . . that material or activity was removed or disabled by mistake or misidentification.”16 This cause of action is enforceable against both copyright holders filing an initial notice and users filing a counter notice.

Unfortunately, courts have struggled to define what constitutes good faith and a material misrepresentation.17 Currently, in order for a cause of action under section 512(f) to be successful, the party that files the notice must have had some actual knowledge of misrepresentation.18 This can be a tough standard to prove for users.19 Further, only a few of the Federal Circuit Courts have addressed the issue.20 Those that have left a “shaky” foundation upon which the precise requirements for finding liability under section 512(f) lie.21

III. Options for Dealing with Abusive DMCA Notices

Despite the uncertainty, victims of an abusive DMCA notice should be aware of their options and not shy away from fighting back. Even with unsettled case law, egregious misuses do not go unpunished. Recipients of DMCA notices can of course file a counter notice. Doing so starts a fourteen-day clock in which the following occur:

  • the service provider notifies the party that filed the original notice and supplies them with a copy of the counter notice;
  • the party that filed the original notice then has ten business days to either do nothing or to initiate a lawsuit against the user who filed the counter notice; and
  • if the party that filed the original notice fails to initiate a lawsuit, the service provider must (within ten to fourteen business days after receipt of the counter notice), replace the material.22

Thus, filing a counter notice backs the rights holder into a corner, forcing them to either initiate a lawsuit, or see material they ostensibly deem infringing put back up. This risk is tempered by the fact that if they do initiate a lawsuit, the user may have a cause of action against them under section 512(f), if the original notice was a subjectively known material misrepresentation of infringement. However, this can be risky given the uncertainty surrounding the interpretation of section 512(f) and the difficulty in proving subjective knowledge on the part of the rights holder.

Users should also consider whether the DMCA notice was sent mistakenly. This can occur when, for example, the marketing department releases copyrighted material to a blogger but does not tell the legal department responsible for sending out notices.23 The notice could also have been sent as a result of an automated process.24 Given the massive amount of content on sites like YouTube, copyright holders (and service providers) sometimes turn to automated programs meant to locate infringing content. These programs are far from full-proof, and although they are improving25 they may still result in mistakenly sent notices.

A. YouTube’s Additional Means of Removing Content

Service providers may use automated means to flag and remove copyrighted content before the DMCA notice process is initiated by the rights holder. This first pass check for infringement may operate slightly differently from the DMCA notice and counter notice procedures and may vary from site to site.

YouTube uses an automated system called Content ID. The Content ID program scans uploaded content and compares it to a database of copyrighted content provided to YouTube from copyright holders.26 The system notifies YouTube and the rights holder when content is flagged as infringing.27 The rights holder then decides whether to make a Content ID claim and block, mute, or place ads on the flagged video.28 The user can then dispute the claim, remove the infringing material, or acknowledge the claim.29 In either event, the rights holder still has the option to file a full DMCA takedown notice.30 The DMCA notice is different from a Content ID claim (YouTube refers to full DMCA notices as copyright strikes) and carries with it the rights and responsibilities set forth in the DMCA and described above. For additional information on YouTube removals specifically, see the Electronic Frontier Foundation’s guide available at https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals.

IV. Conclusion

The DMCA is a complex law whose notice and takedown procedures are, unfortunately, sometimes used to censor. Users who believe they have been the victim of an abusive DMCA takedown notice should contact an attorney experienced in the field to discuss their options. In addition, some social media sites use a notice and takedown system similar to, but separate from, the one mandated by the DMCA. Using the resources above, users should be able to determine whether their content was removed because it was flagged by that system or a full DMCA notice. Their options for responding may vary in each case.

1 Jimvwmoss, The Sneezing Baby Panda, YouTube (Nov. 6, 2006), https://www.youtube.com/watch?v=a1Y73sPHKxw (viewed over 217,000,000 times).

2 Neil Cicierega, Potter Puppet Pals: The Mysterious Ticking Noise, YouTube (Mar. 23, 2007), https://www.youtube.com/watch?v=Tx1XIm6q4r4, (viewed over 159,000,000 times).

3 Stephanie Lenz, “Let's Go Crazy” #1, YouTube (Feb. 7, 2007), https://www.youtube.com/watch?v=N1KfJHFWlhQ, (viewed over 1,000,000 times). Lenz’s video, featuring her child dancing as Prince’s “Let’s Go Crazy” plays indistinctly in the background for about twenty seconds, was removed pursuant to a Digital Millennium Copyright Act (“DMCA”) notice. This takedown was held up as an example of misusing the DMCA notice and takedown procedures, Parker Higgins, Prince Inducted into Takedown Hall of Shame with New Lifetime Aggrievement Award, Electronic Frontier Foundation, (May 7, 2013), https://www.eff.org/deeplinks/2013/05/prince-inducted-takedown-hall-shame-new-lifetime-aggrievement-award, and was the impetus for Lenz v. Universal Music Corp., 572 F. Supp. 2d 1150 (N.D. Cal. 2008); Lenz v. Universal Case Page, Electronic Frontier Foundation, https://www.eff.org/cases/lenz-v-universal (last visited May 4, 2015), (collating selected documents, blog posts, and press releases related to the Electronic Frontier Foundation’s suit on behalf of Lenz).

4 For example, type “Potter” in YouTube’s search bar and the site immediately suggests “Potter Puppet Pals.”

5 Digital Millennium Copyright Act, Pub. L. No. 105-304, 112 Stat. 2860 (codified as amended in scattered sections of 17 U.S.C.).

6 For example, Feminist Frequency, “a channel devoted to video commentaries exploring gender representations, myths and messages in popular culture media.” Feministfrequency, About, YouTube, https://www.youtube.com/user/feministfrequency/about (last visited April 30, 2015). The videos on this channel are created and hosted by Anita Sarkeesian, a video game critic who is often targeted with death threats as a result of her work. Stephen Totilo, Bomb Threat Targeted Anita Sarkeesian, Gaming Awards Last March, Kotaku (Sept. 17, 2014), http://kotaku.com/bomb-threat-targeted-anita-sarkeesian-gaming-awards-la-1636032301; Jason Schreier, Anita Sarkeesian Cancels Speech Following Terror Threats [UPDATE], Kotaku (Oct. 14, 2014), http://kotaku.com/terror-threat-targets-anita-sarkeesian-for-speaking-at-1646371245. A more lighthearted example would be Screen Junkies, whose Honest Trailers series lampoons popular movies. Screen Junkies, Honest Trailers Playlist, YouTube, https://www.youtube.com/playlist?list=PL86F4D497FD3CACCE (last visited April 30, 2015).

7 17 U.S.C. § 512 (2012), available at https://www.law.cornell.edu/uscode/text/17/512.

8 The Electronic Frontier Foundation (“EFF”) curates a Takedown Hall of Shame highlighting some of the most egregious abuses of the DMCA. Takedown Hall of Shame, Electronic Frontier Foundation, https://www.eff.org/takedowns (last visited April 30, 2015).

9 17 U.S.C. § 512 (2012), available at https://www.law.cornell.edu/uscode/text/17/512.

10 Id. § 512(c).

11 Id. § 512(c)(1)C).

12 Id. § 512(c)(3)(A)(v).

13 Id. § 512(g).

14 Id. § 512(g)(3)(C).

15 Id. § 512(f).

16 Id.

17 E.g., Matthew Schonauer, Let the Babies Dance: Strengthening Fair Use and Stifling Abuse on DMCA Notice and Takedown Procedures, 7 I/S: J.L. and Pol’y for Info. Soc’y 135, 143–51 (2011), available at http://moritzlaw.osu.edu/students/groups/is/files/2012/02/Schonauer.pdf; Charles W. Hazelwood, Jr., 50 IDEA 307, 316–25 (2010), available at http://ipmall.info/hosted_resources/IDEA/idea-vol50-no2-hazelwood.pdf.

18 Rossi v. Motion Picture Ass’n of Am., Inc., 391 F.3d 1000, 1005 (9th Cir. 2004); Schonauer, supra note 17, at 145–51; Hazelwood, supra note 17, at 320.

19 Hazelwood, supra note 17, at 325–26.

20 Schonauer, supra note 17, at 151.

21 Id.

22 17 U.S.C. § 512(g)(2)(B)–(C) (2012), available at https://www.law.cornell.edu/uscode/text/17/512.

23 Schonauer, supra note 17, at 151.

24 Elvin Lee, ViaCom's Dragnet Catches a Few “Dolphins,” Chilling Effects (Feb. 14, 2007), https://www.chillingeffects.org/blog_entries/694; Schonauer, supra note 17, at 156.

25 YouTube, Improving Content ID, Creators (Oct. 3, 2012), http://youtubecreator.blogspot.com/2012/10/improving-content-id.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed:+blogspot/utygk+(YouTube+Creator+Blog).

26 Id.

27 YouTube, What is a Content ID Claim?, YouTube Help, https://support.google.com/youtube/answer/6013276 (last visited April 30, 2015).

28 Id.

29 Id. In certain cases, the user may be able to share the ad revenue from the video with the rights holder. Id.

30 YouTube, Copyright Strike Basics, YouTube Help, https://support.google.com/youtube/answer/2814000 (last visited April 30, 2015).