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 More Chilling than the DMCA - Automated TakedownsDavid 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 Viacoms 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 Harvards 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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