Apr 072016

The following is Section III.B of the comment I submitted in the Copyright Office’s study on the operation of Section 512 of the copyright statute.

Question #12 asks if the notice-and-takedown process sufficiently protects against fraudulent, abusive, or unfounded notices and what should be done to address this concern.  Invalid takedown notices are most certainly a problem,[1] and the reason is that the system causes them to be a problem.  As discussed in Section II.B the notice-and-takedown regime is inherently a censorship regime, and it can be a very successful censorship regime because takedown notice senders can simply point to content they want removed and use the threat of liability as the gun to the service provider’s head to force it to remove it, lest the service provider risk its safe harbor protection.

Thanks to courts under-enforcing subsection 512(f) they can do this without fear of judicial oversight.[2]  But it isn’t just the lax subsection 512(f) standard that allows abusive notices to be sent without fear of accountability.  Even though the DMCA includes put-back provisions at subsection 512(g) we see relatively few instances of it being used.[3]  The DMCA is a complicated statute and the average non-lawyer may not know these provisions exist or be able to know how to use them.  Furthermore, trying to use them puts users in the crosshairs of the party gunning for their content (and, potentially, them as people) by forcing them to give up their right to anonymous speech in order to keep that speech from being censored.  All of these complications are significant deterrents to users being able to effectively defend their own content, content that would have already been censored (these measures would only allow the content to be restored, after the censorship damage has already been done).[4]  Ultimately there are no real checks on abusive takedown notices apart from what the service provider is willing and able to risk reviewing and rejecting.[5]  Given the enormity of this risk, however, it cannot remain the sole stopgap measure to keep this illegitimate censorship from happening.

Continuing on, Question #13 asks whether subsection 512(d), addressing “information location tools,” has been a useful mechanism to address infringement “that occurs as a result of a service provider’s referring or linking to infringing content.”  Purely as a matter of logic the answer cannot possibly be yes: simply linking to content has absolutely no bearing on whether content is or is not infringing.  The entire notion that there could be liability on a service provider for simply knowing where information resides stretches U.S. copyright law beyond recognition.  That sort of knowledge, and the sharing of that knowledge, should never be illegal, particularly in light of the Progress Clause, upon which the copyright law is predicated and authorized, and particularly when the mere act of sharing that knowledge in no way itself directly implicates any exclusive right held by a copyright holder in that content.[6]  Subsection 512(d) exists entirely as a means and mode of censorship, once again blackmailing service providers into the forced forgetting of information they once knew, and irrespective of whether the content they are being forced to forget is ultimately infringing or not.  As discussed above in Section II.B above, there is no way for the service provider to definitively know.

[1] See, e.g., Urban, Jennifer M. and Karaganis, Joe and Schofield, Brianna L., Notice and Takedown in Everyday Practice at 88 (March 29, 2016), http://ssrn.com/abstract=2755628; Daniel Seng, ‘Who Watches the Watchmen?’ An Empirical Analysis of Errors in DMCA Takedown Notices (January 23, 2015), http://ssrn.com/abstract=2563202. See also Brief for Org. for Transformative Works et al. as Amici Curiae Supporting Appellee and Cross-Appellant’s Petition for Rehearing at fn. 3-8, Lenz, supra note 14, Dkt. No. 93 (collecting other examples of illegitimate takedown notices).

[2] See Rossi v. Motion Picture Association of America, 391 F.3d 1000, 1004 (9th Cir. 2004) (finding that “the ‘good faith belief’ requirement in subsection 512(c)(3)(A)(v) encompasses a subjective, rather than objective standard.”).  With regard to Question #28, this standard is a very low bar for a takedown notice sender to hurdle and has made effective redress for people whose speech has been wrongfully removed has become more elusive.

[3] Urban, note 27 supra, at 44-46.

[4] The problem of takedown abuse is particularly acute during campaign seasons, when politically-motivated takedown requests can suppress the most effective and cheapest means of communicating political messages for which timeliness is of the essence. See Center for Democracy and Technology, Campaign Takedown Troubles: How Meritless Copyright Claims Threaten Online Political Speech (Sept. 2010), https://www.cdt.org/files/pdfs/copyright_takedowns.pdf.

[5] The “takedown-and-staydown” regimes contemplated by Question #10 would only exacerbate the effects of this censorship.

[6] In other words, sharing a link to content is not the same thing as making a copy of that content.

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