Understanding DMCA with help from Michelle Shocked

It is a chronically repeated theme—and therefore a widely held misconception—that the DMCA is solely a mechanism for rights holders to unilaterally and unequivocally remove content from the Web “without due process.” In fact, this belief is so deeply ingrained that just citing the acronym by some journalists and bloggers is sufficient to denote censorship for many readers. We encounter language like censored by DMCA, speech chilled by DMCA, threatened with DMCA, and so on.  Unfortunately, this shorthand only perpetuates a general misunderstanding of what the DMCA is and how it works with regard to the remedies and counter remedies for alleged copyright infringements. As a result, critics who repeat this one-sided narrative can actually wind up frightening some of the very users and creators whose interests they claim to represent.

For starters, it should be understood that the process of sending notices or counter notices under DMCA is not a casual transaction for either sender or receiver.  Senders of takedown notices must declare under penalty of perjury that they are providing accurate information; that they are legally authorized to “act on behalf of the owner…”; and that they have “…a good faith belief that the use of the material is not authorized ….” Likewise, senders of counter notices, which are used to restore or retain contested material online, also must declare under penalty of perjury that they have “a good faith belief that the material was removed or disabled as the result of a mistake or misidentification .…” This can all be rather intimidating for both rights holders and for users of copyrighted material who don’t have access to legal departments—and who might even get all manner of bad advice from colleagues making unqualified assumptions about copyright. While the largest senders of DMCA takedown notices are, naturally, the corporate owners of thousands of works, the reason these entities are able to send out tens of millions of notices with a very small margin of error is that they do have legal departments dedicated to oversight and enforcement of their rights, and they do know what they’re doing.

But when an individual creator—whether amateur or professional—makes use of a work belonging to another individual creator, the possibility always exists that neither party quite knows where they stand legally, which can make DMCA appear rather confusing and spooky, depending on which end of a notice one happens to be on. This is one reason why some of the headline abuses of takedown procedure—the ones typically highlighted by copyright critics—can foster a general worry that DMCA is just a mechanism for censorship. But even in public statements and court filings by internet industry representatives, DMCA takedown abuse cases are cited in the hundreds—sometimes on a worldwide scale—relative to the 100-millionth-takedown-notice milestone, which Google alone reached in 2014. A ratio of less than 1%.

Still, among individuals and small entities, either a takedown notice or a counter-notice can be sent in error, even if the sender states he/she has made a good faith effort to understand the validity of a claim.  But the point I want to emphasize is that the general perception that a DMCA takedown notice is the final word (i.e. lacks due process) is actually a reversal of how the process works.  In fact, as I’ll expand upon with the anecdote to follow, it is the counter notice that is technically the final word within DMCA’s limited mechanisms. After that, if the copyright holder wants a file removed, and the uploader will not cooperate, the copyright holder’s only recourse is a court order pending litigation for copyright infringement presented to the ISP within 10 days of the filing of a counter notice.  So, it is not remotely accurate to describe DMCA as a tool for takedown without due process.  For a more detailed explanation of DMCA mechanisms, read Stephen Carlisle’s article from 2014.

How artist Michelle Shocked’s generosity is being abused by DMCA provisions. And why it matters.

A common category of video on YouTube is the musical cover.  People share these all the time, especially when the video features some adorable kid who’s killing it with her rendition of a popular song.  That most of these videos, which make use of copyrighted works, are not removed from YouTube may be attributed to one of three common factors:  1) that in 2013, YouTube entered into blanket licensing agreements with the major publishers on a vast library of popular music; or 2) that many rights holders of these works are somewhat ambivalent about these incidental uses and/or find the process of takedown too burdensome; or 3) that many rights holders actually enjoy these covers very much and are generally happy to see their work shared in this manner. When conflicts do arise, they tend to be fairly specific, pertaining to some distinct concern on the part of the independent creator who owns his/her copyrights and would, therefore, not be bound or covered by the aforementioned blanket license agreements.

One such artist is the singer/songwriter Michelle Shocked, who has been an adamant crusader on behalf of artists’ rights and is a regular follower of this blog. As serious as she is about protecting copyrights, she also happens to be totally cool with unlicensed YouTube video covers of her songs, as long as the user respects two simple conditions.  The first is that the video not be monetized with advertising because Shocked doesn’t want Google to earn revenue from her work without an agreement. In fact, because of her views on artists’ rights, she works to keep her own live and recorded performances off YouTube even though she is happy to let others publicly perform her songs on the platform.  The second condition is that Shocked prefers that her name not appear in the video file title, but rather in the description crediting her as songwriter/composer. The reasons for this are myriad with regard to maintaining some control over search results (and even monetization) of her name, but suffice to say, it’s her prerogative and an easy enough condition to respect.

So, in the utopian narrative of sharing and remixing and diffusion of culture and ideas—and all that feel-good stuff—Shocked’s two minor conditions for performing her songs without a license in YouTube videos seem both reasonable and entirely consistent with those high-minded aspirations of creativity in the digital-age people keep talking about. Fundamentally, she’s not asking for much effort beyond a little common courtesy, which one would think is also consistent with sharing and caring and so on. In fact, Shocked has had numerous cordial exchanges with online performers of her songs, thanking them for the cover but asking them politely to remove her name from the title. And until recently, all have been happy to comply, grateful to have a friendly exchange with the songwriter.

But this was not the case for one YouTuber, Steve Pierce, who uploaded a video of himself playing Shocked’s song “Memories of East Texas” and used her name in the main title of the video file.  As usual, her first response was to write Pierce, thank him for his “beautiful cover” of her song, and to ask that he kindly remove her name from the title and instead use it in the description.  After some time without a response from him, and seeing no change to the file name, Shocked sent a takedown notice using DMCA procedures and subsequently received notice from YouTube that Pierce filed a counter notice in which he stated his opinion that his video cover performance constitutes a “fair use.”  Now, we have a ballgame, and here’s why:*

In a hypothetical lawsuit, a court would almost certainly deny a fair use defense for an individual’s unlicensed video recording and public distribution of a cover song, as this would appear to effectively throw out the purpose of both the mechanical and public performance rights altogether. My point is not, however, to play amateur legal soothsayer about a hypothetical case but rather to note that Pierce’s invocation of the words “fair use”—for a use otherwise covered by a specific type of compulsory license—seems to be a common habit among non-attorneys of late. But “fair use” is not a magical incantation that will automatically ward off all infringement claims.  In reality, Pierce’s use is not “fair” but instead has been made conditionally available to him by permission of the author. And because he chooses to not respect one of those conditions, the point I’m stressing here is that Shocked is actually quite limited by the mechanisms in DMCA.  Her only recourse is to litigate or let it go.

Because Michelle Shocked owns all her copyrights and has no agreements with YouTube—and because Pierce’s fair use defense would very likely be denied—her claim should theoretically be quite solid.  But the merits of a hypothetical case are secondary to the fact that she never wanted to sue anybody in the first place.  It’s a pain in the butt and very expensive to sue people in federal court. Plus, she has no problem with the content of the video itself, only with the use of her name in the title. So, maybe you’re thinking, “Big deal. So he used her name. Let it go.” In practical terms, perhaps, but in principle not necessarily.

Shocked’s story provides an instructive example of the functional weakness in DMCA for the individual rights holder. And this is why it’s infuriating to independent creators in particular to hear the repeated theme that DMCA is just a big, digital eraser used to summarily remove content from the Web without recourse.  Exactly the opposite is true; DMCA is largely a voluntary mechanism in which the individual creator asks, “Please remove this,” and a perfectly legal response may be, “No. And you can sue me if you don’t like it.”

Moreover, under these circumstances, what is really stopping this user, and therefore YouTube, from ignoring Shocked’s first condition that videos of her works not be monetized by advertising?  Certainly nothing within the scope of the DMCA.  In theory, this would mean that Google could get away with generating revenue from this use despite the artist’s desire to generously share her work with people in a non-commercial context. This is a hypothetical projection in this case, of course, but not if we look more broadly at the ebb and flow of infringements on the YouTube platform over time.  In fact, Google’s monetizing the infringing material its users upload and re-upload is the crux of rights holders’ conflicts with that company; and the neutrality it asserts while earning billions of ad-revenue dollars is one reason many see flaws in the safe harbor provisions of DMCA.

Understanding what DMCA is and how it really works is important, if people really want to claim that they care about the artist and culture more than the big corporation.  In the end, Steve Pierce’s cover song will probably not be heard by millions—or even likely thousands—of listeners; and the video itself will remain one relatively innocuous clip in a sea of billions.  But if we multiply Michelle Shocked’s experience by thousands of independent, fledgling new artists out there, it’s not difficult to see how perpetuating the myth that DMCA skews in favor of rights holders can result in one or two dominant Internet platforms dictating terms to creators in the long run.


*Mr. Pierce’s name was originally misidentified as Martin DX1KAE, which is the type of guitar he’s playing and not his YouTube handle.  See comments from Mr. Pierce in response to this article.

© 2016, David Newhoff. All rights reserved.

This entry was posted in Copyright, Law & Policy, Music, Social Media and tagged , , , . Bookmark the permalink.

20 Responses to Understanding DMCA with help from Michelle Shocked

  1. Hans says:

    Thank you David!

    Your collection of well argued articles is a great resource for the creative community!

    Thank you, thank you, thank you!!

    Kind regards
    Hans

  2. Will Buckley says:

    The Internet is really a wholly unregulated gateway to misery for creators.

  3. Thanks for the article David.

    I know you try to be even handed in your analysis of copyright issues, but some of your statements do need to be challenged. I thought at first you going to say that the DMCA was about more than just takedowns because it also covered rights management and hull design etc, and it was really the OCILLA that we ought to be talking about. But no, as it became clear, it was the deficiencies of the takedown and counterclaim system that you wished to discuss. Great I thought, it’s about time the deficiencies of section 512g (1) got a good kicking, but no, again you wrong-footed me by describing subsection (2).

    But all of that is beside the point. The takedown procedure is there to protect online service providers from liability; it really has nothing to do with the rights or otherwise of the end-user such as Martin DX1KAE (catchy name!). It’s just that the same lazy thinking that you describe has come to equate section 512 with a dispute between a copyright owner and an alleged infringer. In fact, legally speaking nothing has changed in that relationship, except that sometimes online service providers can save the more misguided of their subscribers from getting sued, by taking some of the heat themselves. The cost of administering the system for companies like Google probably outweighs the potential damages they might face if they got sued now and again, along with the actual individuals who post this stuff.

    By complying with the takedown and putback procedures, the OSPs gain the exemption from liability which they seek; it is not particularly in their interests to side with either party over what is fair, although for obvious economic reasons, OSPs such as YouTube are going to do deals with the people who cause them the most grief, like the studios and record companies. Other OSPs such as Ebay are far less neutral in their attitude, generally taking things down, and not putting them back despite receiving a valid counternotice, because they don’t have to.

    Let’s face it, the real beneficiaries of the DMCA takedown procedure are the MPAA and RIAA members who get a cheap method of removing their content, withouit having to sue millions, if not billions, of individuals to get the same result. Against that Michelle’s problems are pretty lame.

    And in contrast to Bruce Boyden’s article to which you linked, it’s worth mentioning that according to Google in 2009, around 37% of the takedown notices it received were bogus (http://www.pcworld.co.nz/article/483729/google_submission_hammers_section_92a/). That is a truly awful statistic, and one which any move to tighten up the DMCA should also address. A few large fines handed out for making bogus claims would be a good start.

    Andy J
    The 1709 Blog

    • David Newhoff says:

      Andy—

      Thanks again for adding dimension to the conversation here. It seems to me that in part of your response, you are vacillating between the intent of DMCA in 1998 and the practical application of its mechanisms to date. For instance, you write, “The takedown procedure is there to protect online service providers from liability; it really has nothing to do with the rights or otherwise of the end-user …”

      While the mechanisms in DMCA do represent negotiated terms between OSPs and copyright holders, it seems unreasonable to claim that it has nothing to do with the rights of end-users. After all, OSPs maintain their safe harbors, in part, because the DMCA procedures mandate that disputes over infringement claims remain solely the purview of the claimant and the individual uploader. When the EFF decided to sue UMG in Lenz—in what looks like a transparent effort to modify fair use doctrine—they did so on behalf of Ms. Lenz. Likewise, if Michelle Shocked chose to litigate in order to remove this one video clip, the defendant would be Martin DX1KAE, so his rights are certainly at issue. Hence, what the independent rights holder objects to in this case is that the OSP’s financial benefits derived by infringements are effectively shielded by the implicated rights of the individual users. And Google et al are chronically guilty of conflating “user rights” with its business model.

      You write: “By complying with the takedown and putback procedures, the OSPs gain the exemption from liability which they seek; it is not particularly in their interests to side with either party over what is fair, although for obvious economic reasons, OSPs such as YouTube are going to do deals with the people who cause them the most grief, like the studios and record companies.”

      Yes, in order to maintain the safe harbor shield, OSPs must comply with conditions in DMCA, and as stated above, they do not technically take sides in any given dispute. (Though Google’s recent offer to “back” YouTubers, who might face litigation in a claim in which fair use should have been “considered” raises some interesting questions.)

      I think you mischaracterize the relationship, though, between YouTube and the giant media companies, which is more accurately a kind of fledgling symbiosis with important points of conflict. It’s one-sided to say that the big studios cause YouTube the “most grief” without acknowledging that it is their works which are most infringed and in very high numbers. On the symbiotic side, we see deals like the 2013 license agreements alluded to in the post, which is one reason your reference to RIAA benefitting from takedown is a little off the mark, I think. On the antagonistic side, the motion picture studios still see whole TV episodes or feature films uploaded to YouTube, which nobody disputes are infringements; but they fight considerably over what to do about it.

      In this regard, I think it is wrong-headed to view takedown procedures as anything but costly for the large rights holders relative to the “cost” to Google for compliance with DMCA to date. By virtue of a law, which did not anticipate the scale and scope of online infringement, Google has monetized the cycle of infringing works going up and down, even while complying with DMCA. And to the tune of billions of dollars. And then its PR machine demonizes takedown in order to advance a broader, anti-copyright agenda. So, in terms of Google’s larger business model, these costs can be viewed as an investment in contrast to, for instance, a studio’s enforcement unit, which is literally all cost without revenue or long-term prospective value.

      As for the article you cite in which Google claims an extraordinarily high rate of DMCA abuse, I admit to having no institutional knowledge dating back to 2009, but it is unclear whence these numbers come because the story is about OSPs criticizing Section 92A of the New Zealand Copyright Act. So, even if Google’s abuse rates of either 57% or 37% are accurate (and they may not be), are they referring to New Zealand, which has a DMCA-like provision; or are they claiming actual US DMCA numbers; or are they looking at other markets with takedown procedures that are not technically DMCA? If we look anecdotally, for instance, at EFF’s communications, they are not shy about citing takedown “abuse” in countries that barely support free speech, which skews the data to say the least. And as alluded to in the post, even in a very recent amicus filed on behalf of several OSPs seeking a new ruling in MPAA v Rossi, the brief alludes anecdotally to hundreds, and not millions, of wrongful takedown notices. Given the industry’s emphasis on wrongful takedown, I tend to think that if they had solid evidence for claiming tens of millions of abuses under DMCA, they would repeat these stats as often as possible.

  4. John Warr says:

    Back in 2007-2009 their blogger users where using 100,000 of images that they had filtched from other websites and surrounded them with google adsense. The ‘blogs’ were nothing but infringements 100s of images designed to garner clicks and ad revenue. This wasn’t a single blog but it occurred across 1000s of blogs, day after day, week after week. Issuing a DMCA notice to Google outside of the US was impossible as they only accepted snail mail and never responded to faxes. Where any of the blogs terminated – not as far as I could see. The blogs remained with different sets of filtched content. Google had very few DMCA notices back in 2009 as they made issuing them incredible hard. I found images on street view, with no way of getting them off that site try issuing a DMCA notice when Google is the infringer.

    The bottom line is that back in 2009 Google made it extremely hard for anyone to issue a DMCA notice regarding infringements on their sites. Gave little information as to what might be the correct format, disregarded and called bogus any request that didn’t conform to their requirements. Contrast Yahoo who had and still have a DMCA submission process which walks people through the process.

    Lets talk about Google and its attitude to copyright infringement back in 2007. They had a social network called ORKUT which was popular in South America, also popular on the site were ‘fake’ profiles. These were profiles created by teens and mid 20 somethings where they pretended to be 4-7 yo kids. They took photos of kids from flickr and built profiles around them “Hello my name is Sally I am 5 years old, this is my brother Tom he is 6 years old. We like ice cream and …” In among all of that were some accounts where they were fantasizing sexual age play “I love my daddy to lick my …” Even with the more innocent accounts being teens they couldn’t hold it together for too long without starting to discuss drugs, booze, and sex.

    So what happened when the parents found out that their family photos where being used like this and complained to Google about impersonation? Google’s reaction was to ask for driver id for for the 4-7 year olds. Eventually they started flooding Google with DMCA takedowns and the internet started to wakeup.
    http://www.theregister.co.uk/2007/10/02/google_orkut_dmca/

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  6. The dmca laws are not for the benefit of riaa or just big companies ,thats ridiculous the law was intended also for individual rights holders too, who most would have benefited, had this law and notices actually worked..ive sent thousands, still take down stay down and abolishing the dmca laws for a better concise system that truly works is urgent.
    #endpiracy.org

  7. Mark says:

    While I understand the point being made by this article, that engaging in legal action can for independent artists or small companies be an expensive and bothersome process, it is worth noting that independent artists also get a very raw deal from a considerable number and variety of websites when it comes to their compliance with BOTH sides of the DMCA Take-down-and-Put-back procedures:

    What is happening in quite a widespread way these days is that websites receive a DMCA Takedown notice from a rights holder, they then remove the offending content and notify the person who uploaded it of what has happened – all fine so far (assuming a valid/complete DMCA Notice, which is not always the case but somewhat beside the point) – however what then happens is that an artist with what they feel is a valid claim that the work has been unfairly or incorrectly complained about submits a DMCA Counter-Claim to the site. What then happens is the problem in 2 fashions, both quite frequently occurring:
    1) The site correctly passes the counter-claim on to the original claimant, once 2-weeks has passed and the original claimant has not notified the site that any legal proceedings are forthcoming the artist/user etc expects that the work will be reinstated however the site does not reinstate it and often then replies to requests for reinstatement with statements such as “we reserve the right to remove any content for any reason” or:
    2) The site simply does not pass the counter-notice on to the original claimant, and once again refuses to reinstate the content under the blanket statement of “we reserve the right to remove any content for any reason”
    It is of course true that they can choose to refuse or remove any content in the terms of most content let websites, yet having removed content solely based on the receipt of a DMCA Takedown notice rather than for any breach of their terms&conditions etc the site is basically taking sides in the DMCA procedure and effectively casting summary judgement and “censorship” on the artist, hence the frequent complaints that DMCA equates to “censorship”
    The answer as to “Why” sites would resort to this kind of behaviour is most likely what needs to be established, and corrected, in order for the “censorship” complaints to effectively end and for valid content to be reinstated. The most likely answer is that the sites do not understand that they are in no way risking their safe harbor status by reinstating work after having received a counter-claim that subsequently does not lead to action against the user, and/or are being told that they ARE risking it by larger bullying corporations.

    Alongside that, in the case of Michelle Shocked, and others, who receive a counter-claim that they feel is clearly invalid and would not hold up in court there do appear to be changes on the horizon with current discussions taking place that suggest introducing a “copyright small claims process” outside of the federal courts system which would streamline both the costs and requirements of getting a case heard, thus making the other side of the process much fairer for less financially powerful claimants.

    Two small changes: Small claims process, and ‘required reinstatement for items removed in accordance with DMCA’ would make both sides of the DMCA Take-down-and-Put-back process far easier and fairer for ALL involved.

    • David Newhoff says:

      Thanks for your thoughts, Mark. And yes a copyright small claims court would be a solution for many independent creators.

  8. overviper says:

    This entire situation strikes me as one set up to make it as hard as possible for rights holders, and to allow the beneficiaries of their works to skate. There seems to me to be an easy solution…anything that goes up on a host site that has a valid copyright, just aim the revenue stream at ASCAP, BMI, etc. and let them collect the revenue on it. And those monies should be paid by Google, YouTube, etc. because they are collecting the ad revenues from those works…Just like TV and radio.

    The rights organizations (it seems to me) have enough clout to get this done.

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  12. steve pierce says:

    errr couple of points,,, my name isnt ‘Martin DX1KAE’ thats the make and model of guitar. Also Michelle did NOT ask me politely or say anything about a beautiful cover (it isnt lol) and I have told her on many occasions if she asks me with any semblance of manners and good race, of course I will change it. The reality is that she instructed a ‘take down’ on You Tube. Which stopped me having access to my video and also stopped me from being able to change the title. However on examination and my claim of fair use,,, the video depicts me ‘learning’ the song,,, I post videos to A/ get over performance anxiety and B/ try to improve… its basically self coaching. Obviously MS is using this example to make a wider point and that is fair enough,,, but manners go an awful long way 😉 xxx

  13. steve pierce says:

    However on examination and my claim of fair use,,,(they reinstated it…) sorry cant edit…

    • David Newhoff says:

      Steve, thanks for your comments. Admittedly, this post is a few months old, and I’ll have to review my notes, etc. On the point about your name, I could have sworn I saw a file or screen grab with that as a username, but if that’s an error, I’ll correct it. As for the he said/she said aspect of this story, I’ll need a bit of time to review and am fairly swamped. Regardless, I appreciate comments of a substantive nature.

      • steve pierce says:

        thank you David,,, feel free to discuss this with me privately. Im sure it was meant in good faith. As was my video. However my concern is Michelle’s difficulty recalling the actual facts. I would like her to produce some evidence that she asked me politely. She didn’t. I shall leave it upas is, until she finds her manners.

      • David Newhoff says:

        Steve–

        Again, thanks for responding. I corrected your name and added a note. As for Michelle’s courtesy or yours, I hope you understand that I cannot actually comment on the he said/she said aspect of this story–especially since I feel solid about the object lesson being applied regarding DMCA. Michelle did send me some communications as examples, which seemed courteous. Clearly, I am cannot accuse her of manufacturing fake emails or DMCA notices based solely on your comments here.

        That Google restored your video based on your invoking fair use is not evidence that your defense would hold up in reality, which is part of the point of this post. The fair use exception is quickly running amok, and Google likes it that way. In this regard, I hope you understand that this is not a criticism of you personally but a criticism of a gross distortion of an important principle by the largest corporation in the world.

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