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    More Chilling than the DMCA - Automated Takedowns

    David Abrams, Chilling Effects Clearinghouse, March 17, 2010

    Abstract: A federal statute, the Digital Millennium Copyright Act (DMCA), allows copyright holders to have material they allege infringes their copyright removed by a poster's Internet Service Provider or web host without a court order or benefit of the adversarial process. Nevertheless, the DMCA takedown procedure is governed by federal law and it gives the poster at least some protection against abusive takedown notices. YouTube has installed automated software that allows copyright holders to choose to block any video uploaded by a user that contains their copyrighted content, even when the use of that content would be legal under current law. This has resulted in videos being blocked that contain music by bands playing their own songs and presentations by legal scholars discussing copyright law. The problem with this type of extra-legal automated copyright blocking is that the poster has no legal rights to get his or her content reinstated. YouTube is a private company and can choose what it wants to allow and what it wants to block on its site with no recourse available to the poster other than relying on the good graces of the company to do the right thing.

    Under the DMCA, a copyright holder or person authorized to act on behalf of the owner may direct a hosting service to remove or disable access to infringing content.  While subject to abuse, for example when used to remove criticism, parody or review that the copyright holder finds offensive, the law does require it to state that it "has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law."  If, after receiving a properly constructed takedown notice, the hosting service promptly responds by making the content unavailable and it had no knowledge that the content was infringing nor was infringement "apparent," the host is not liable for damages due to that infringement.  This safe harbor is an important factor in making it possible for web sites to allow user created content available on the Internet at low or no cost.  It is unlikely that services such as YouTube could be viable without this protection.

    In March 2007, the media conglomerate Viacom sued YouTube for $1,000,000,000 in damages, alleging that YouTube, which at the time had recently been bought by Google, was appropriating its creative content on a "massive scale."  Although YouTube had previously removed Viacom’s content in response to more than 100,000 DMCA takedown notices, the complaint alleged that YouTube was not protected by the statute because it was aware of the infringement and, indeed, encouraged infringing videos because it profited through the sale of online advertising when larger numbers of people visited the site to see copyrighted content.  Viacom complained that YouTube had “deliberately chosen not to take reasonable precautions to deter the rampant infringement on its site” and instead it had “decided to shift the burden entirely onto the copyright owners to monitor the YouTube site on a daily or hourly basis to detect infringing videos and send notices to YouTube demanding it ‘take down’ the infringing works.” 

    This notice-and-takedown, of course, is exactly all that the DMCA requires of hosting services to provide immunity from liability for copyright infringement.  Nevertheless, given the sheer quantity of infringing material uploaded to YouTube, the company likely worried that a jury might conclude that it was not entitled to the safe harbor provisions of the DMCA because it should have known of some of the infringing material.  In addition, responding to hundreds of thousands of DMCA takedown notices as well as battling media companies in court is very costly.  Therefore, YouTube installed automated systems to identify copyrighted music and videos uploaded to its web site.  The automated tools which identify music are capable of identifying copyrighted works even when only a short segment is used or when the work is playing quietly in the background. 

    When these systems identify content belonging to specific copyright owners, YouTube can either block the video, block only the audio portion of the video or allow the video to be uploaded and then share any advertising revenue generated by that content with the copyright owner.  Each copyright owner may choose whether to block or share its own content.  After licensing talks with Warner Music Group broke down in late 2008, the company chose to have the automated systems block its content on YouTube.  As a result, videos of babies singing and dancing to copyrighted songs have been removed, videos uploaded by artists playing their own songs have been blocked, and lectures by noted law professor Larry Lessig on networked culture and fair use are unavailable on the site.  

    What is distressing about these automated takedowns is that, because they are merely the result of YouTube deciding what it will allow to be posted on its site, the copyright owner is not subject to even the limited constraints of the DMCA to certify under threat of perjury that it owns the copyright or is authorized by a copyright owner to act, nor to state its good faith belief that its content is being infringed.  At least one court has held that this certification must include at least some consideration of whether the allegedly infringement would qualify as fair use.  In addition, the statute requires the hosting service "promptly to notify the subscriber that it has removed or disabled access to the material” and to reinstate the material if the subscriber sends the hosting service a counter-notice stating he or she has a “good faith belief that the material was removed or disabled as a result of mistake or misidentification” and the copyright holder does not file a lawsuit within 14 days.  Thus, the law not only subjects the copyright holder to liability for sending a groundless takedown notice, it also requires the hosting service to replace the material and stop disabling it if the user files a counter-notice and the copyright holder is unwilling to sue. (Providers can override this user-protection in terms of service, however, and frequently do.)   

    Automated takedowns, however, are subject to none of these rules.  YouTube does have a procedure to dispute automated video or audio takedowns.  However, this process is separate from the DMCA-mandated procedures and YouTube provides no information on how they evaluate such disputes.  Because it is a private process, YouTube can choose to block content for any reason, even if the use is not infringing.  The result is a legal limbo; the user has no right to force YouTube to post his or her content, but also has no legal recourse against the copyright holder to contest a claim of copyright infringement because none has been made.

    The Electronic Frontier Foundation and Harvard’s Berkman Center along with several other organization concerned about the use of automated takedown systems have created a set of fair use principles for user generated video content.  These principals attempt to balance the commercial content creators’ concerns with copyright protection against the benefits of free expression in user created content.  In particular, these principles advocate stringent match requirement for automated systems to protect fair use and a right to dispute the results of an automated match.  It appears, based on the many arguably fair use takedowns on YouTube, that the site has not adopted these guidelines.  The result is a private blocking system that is even more chilling of free expression than the DMCA.


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