Astroturf Organizations Typically Hysterical on DMCA

As the deadline approached for public comments to the Copyright Office in anticipation of its review of Section 512 of the DMCA, TorrentFreak reported yesterday morning that 50,000 “citizens” chimed in to protest DMCA “abuse,” apparently enough to “crash” the government’s servers.  Assuming the crash did occur, it’s probably an endorsement for Copyright Office modernization, but to the matter at hand, if there are 50,000 actual, non-attorney citizens who understand DMCA, I’ll eat my hat and the box it came in. This is more SOPA-fying, scare-mongering bullshit, and I really wonder how many times people are going to fall for it.

The TF article quotes this statement by Tiffani Cheng of the Google-funded organization Fight for the Future: “The DMCA affects all Internet users and they should have an opportunity to express their concerns with the ways content is censored from the Internet, causing damage to free speech that can’t be undone.”

To describe DMCA as a tool for censorship is a gross exaggeration that enables major OSPs (Online Service Providers) to use individuals as human shields to cover their profit interest in keeping DMCA ineffective for rights holders. It’s not that DMCA abuse does not occur, but the comparatively few incidents in which an individual or entity purposely misuses takedown should not be allowed to mask the enterprise-scale motives for major OSPs to support, promote, or even condone mass infringement.  That was never the intent of the DMCA.

Millions of copyright stakeholders know first hand that the OSPs have been incentivized by the terms of the DMCA to fabricate an illusion of ignorance with regard to obvious cases of infringement hosted on their platforms, promoted by their search engines, or supported by the access they provide.  Simply put, in order to retain the safe harbor (i.e. neutral) status, which service providers consider essential to their existence, they are supposed to meet certain obligations according to the statutes.  In many cases, large providers either fail to meet these conditions outright (as we saw in Cox v BMG) or they push the boundaries of reason and good faith when it comes to what’s called “red flag” knowledge of infringing or other illegal activity making use of their services.

For instance, among the conditions an OSP must meet to retain safe harbor under DMCA is that it may not benefit financially from infringement.  So, when a user uploads a whole TV episode, let’s say, to YouTube (which nobody disputes is infringing) and YouTube generates ad impressions during the period when the file is online before the rights holder takes it down, that’s revenue.  Why is that transaction not a clear violation of the statutory conditions, which would appear to make YouTube liable for the infringement rather than the neutral party it claims to be?

For obvious reasons, OSPs do not want to change the status quo.  And to be clear, rights holders are not looking to end safe harbor protections or to seek new means of taking down more material that is non-infringing; they have enough challenges just trying to keep a lid on the large volume of undisputedly infringing content.  And make no mistake, the major OSPs could give a damn about your free speech or your remix videos beyond the extent to which defending those things makes them money. (One could make far more compelling arguments that these service providers stifle speech through manipulation of their algorithms than all the DMCA abuse that’s ever been cataloged.) So, with regard to DMCA, these service providers would like to perpetuate the game that earns them revenue and grows their market share without having to bother with the legitimate rights of creators.

Even a Google-funded report released last week on DMCA notice and takedown procedures, conducted by researchers at Berkeley and Columbia Law, indicates that the majority of errors and abuses of the DMCA takedown process occurs among smaller and mid-sized rights holders, OSPs, and plain bad actors.  I may write a more detailed discussion of that fairly large report in a future post. But I mention it here because not even research—at least the anecdotal portion of it—slanted in favor of the internet industry appears to really support the assertion that DMCA takedown is widely abused as a tool to censor your “tweets and videos.” This is a typically hysterical claim that sounds sillier with each passing day that trillions of online expressions are exchanged without incident.  Meanwhile,  the  DMCA remains an inadequate tool for most rights holders of all sizes to mitigate large scale infringement and outright piracy of their works.  And these uses are still not free speech.

© 2016 – 2017, David Newhoff. All rights reserved.

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5 comments

  • Copyright has existed here before we became a nation, and has been written in to our constitution when we became a nation. Copyright law has somehow existed along with free speech up until the age of the internet. I do not recall printers in the 1800’s ever earning the right to print works they had no rights to – even if a third party submitted them to the printer. I do not recall ever a time when radio or television rebroadcast works sent in by third parties without requiring compensation to the original works creators. Where is the precedent for claiming that there is an infringement of free speech by eliminating the safe harbor? And where in our history is there a case when and entire copyright law was annihilated when it was discovered that less than 1 % of claims were questionable?

    • ” I do not recall printers in the 1800’s ever earning the right to print works they had no rights to…”
      I don’t know about that. I won’t claim to be an unimpeachable expert on the history of copyright but from my skin-deep reading on it, copyright in the 1800’s was a real sh*t show. Especially across borders (i.e. UK works in America and vice versa), but even inside the country, with lots of printers printing what would now be called “pirated” versions. I yield to no one in my ruthlessly pro-copyright position but I think the past 100 years of enforceable copyright have been much more an anomaly than the norm.

      • David Newhoff

        Enforcement through the 19th century was a bit more of a mixed bag–yes across borders and even domestically. In fact, prior to 1976, copyright in the US was a combination of federal law and common law, and creating a unified federal law was part of the goal of the ’76 Act. And, of course, part of the motivation for that unification was to harmonize US law with foreign trading partners.

        Still, there was enforcement from the beginning and some very important cases, though there is naturally a period between passage of a law and testing that law in court. Photography was protectable in the US as of 1865 (almost the same time in UK and France), but it wasn’t until 1884 that the copyrightability of the photograph was really tested by the Supreme Court in the Sarony case. So, to the extent that practical enforceability depends upon precedent caselaw, it would only stand to reason that by the 20th century rights holders would have a lot more to go on. And of course, the creative industries matured, giving them the financial resources to protect works and pursue infringements.

        No matter what, nikokkola is absolutely right that copyright has coexisted with free speech since Day One. (Technically copyright and patent were in the Constitution before free speech). It’s not that the courts and Congress have not needed to consider the boundaries of speech when drawing the contours of copyright law (see fair use also 1976), but this broader message that labels contemporary enforcement in the age of the internet as anathema to speech is a lot of political spin in the service of giant OSPs.

      • Fully agree Mr. Newhoff. Thank you for the comment. And I second the notion that the faux “free speech” aspect of the anti-copyright movement in especially ridiculous and annoying.

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