Red Flags, False Flags, & The Virtues of Ignorance

A couple of weeks ago, I wrote this post about an amicus brief filed on behalf of several Internet companies seeking a new ruling in a 2004 case with the apparent purpose of changing the legal standard applied to the “Dancing Baby” case. This is in regard to the burden on a rights holder to “consider fair use” before issuing a DMCA takedown request.  I won’t rehash that post, but a colleague of mine suggested that the amicus brief itself contained a rationale so heavily salted with hypocrisy that it deserves its own attention.  And he’s right.  The amici making the case for an “objective” rather than a “subjective” standard in considering fair use sum up their concerns (as cite in the other post) thus:

“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act, see 17 U.S.C. §§ 107–123, because the less they know, the more leeway they would have to send takedown notices.”

Consider this rationale for a moment because it should sound very familiar.  The less the rights holder knows, the greater his/her immunity from liability; it must, therefore, be in the rights holder’s interest to “remain ignorant.” Hence, the the “subjective” standard rewards ignorance (i.e. non-specific knowledge) with its release of responsibility.  The other post I wrote focuses on the inherent subjectivity of fair use, but the nature of this expressed concern—that ignorance is a shield from liability—is an astonishing worry coming from the industry whose favorite defense can be summed up as the “we can’t know” defense.

As cited in this post, the Internet industry has relied frequently on splitting hairs between what is often called “red flag” (non-specific) knowledge and “actual” (specific)* knowledge, the former definition being one of the ISP’s preferred defenses against taking action to mitigate any harm being done via its platforms.  In case after case, Internet providers—most often Google—will argue that absent “specific knowledge” of wrongdoing, they are not responsible for delisting, blocking, demoting, or removing links to sites or files that are causing some type of harm. In particular, these providers have consistently argued that they bear “no duty to monitor” activity on their sites in order to remain shielded by safe harbor provisions in the DMCA. So, this sounds an awful lot like the ISP has the same type of vested interest in its own ignorance that is supposedly detrimental according to the excerpt from the amicus brief cited above.

In fact, the “concern” raised in this amicus brief is truly insidious when you dig below the surface. In a nutshell, big, wealthy corporations—whose business by the way is data management—are arguing that an individual rights holder should be expected to have “specific knowledge” about a purely subjective doctrine (fair use). Meanwhile, the big, wealthy corporations (and did I mention their business is data management?) can never be expected to have “specific knowledge” about activity on their platforms that is—quite often—objectively knowable.  To up the ante, the big, wealthy data management corporations claim to be voicing their “concern” for the sake of public interest, and at least some portion of the public is inclined to believe them.  Finally, just for laughs, the claim of ignorance employed by these corporations is typically not argued as a defense against civil or criminal liability, but more often simply to avoid playing a leadership role in helping to make the Internet a place that supports fair trade, honest dealing, and safe commerce that protects both consumers and producers in a healthy marketplace.

Meanwhile, the most likely abusers of DMCA takedown—certainly the ones we should be most concerned about—are public figures, corporate entities, or government agencies  that might seek to misuse copyright in order avoid criticism. But these same entities are also more likely to have “specific knowledge” of what they’re doing than, say, an indie musician who can be forgivably unclear about the fair use doctrine as it might apply in a creator-to-creator use.  Plus, the musician’s potentially wrongful takedown is not going to chill free speech, particularly when there are already non-litigious remedies for such errors contained within DMCA procedure. At the same time, the service provider (e.g. YouTube) is shielded from any liability to both the user and the rights holder because, as they have argued repeatedly, “they can’t know everything their users are doing on their platforms.”

But in an interesting turn of events this week, Google seems to have shed at least one of its seven veils of ignorance and demonstrated that it has rather specific knowledge of the doings of some of the video creators on its YouTube platform.  Their interest in these creators is so specific, in fact, that the search giant has offered to pay the legal fees, if necessary, for a handful of these video creators, who may face legal proceedings stemming from DMCA takedown disputes.  Cecilia Kang for The New York Times describe’s Google’s motivation thus:

“The company said it wanted to protect free speech and educate users on fair use. But its announcement is also is aimed at strengthening loyalty with video creators. YouTube faces new competition from Facebook, Twitter and traditional media companies that are trying to get consumers to upload more content onto their platforms.”

I’m sure Kang is right about the competitive strategy, but we’ll set that aside and focus on Google’s new “we got your back” PR move that may look bold to some on the surface, but is actually rather craven and slick if you consider the details.  For instance, the lead example of a video creator cited in Kang’s article whom Google has chosen to support represents something of a false flag for the “cause.”  Constantine Guiliotis is the creator of UFO Theater on YouTube, a series in which he rather amusingly debunks amateur, hoax videos (from other YouTube Channels) claimed as evidence of alien spacecraft. His use of these videos would constitute a fair use, though Kang’s article states that Guiliotis has only received three DMCA takedown requests to-date, which is penny-ante poker in the world of DMCA.  The article does not state whether or not Guiliotis filed counter-notices to restore the use of those three videos, but he certainly had that option, and that would be the end of any likely conflict.

The reason I say that would be the end of it is because the notice and counter-notice procedures in DMCA are meant to serve parties like Guiliotis and the video makers whose works he uses because these people are not going to engage in hugely expensive federal lawsuits over these relatively minor disputes. Hence, Google’s taking a stand by telling Guiliotis, “We’ve got you covered if one of those amateur UFO hoaxers decides to sue you,” is an absurd and empty gesture.  I don’t know all of the YouTube creators Google has decided to “back” in this initiative, but the announcement smells like a PR move designed to make Google look like a champion of free speech while throwing its weight around to intimidate smaller rights holders who can barely defend themselves in the online market in the first place. After all, what if an individual or small independent rights holder has a legitimate claim of infringement by a YouTube video creator?  Is this rights holder now up against the financial might of Google? And if so, what does this say about Google’s supposed neutrality stemming from its claim of ignorance shielding it from liability to both parties in such disputes?

Between the hypocrisy in the amicus brief cited above and the way in which Google is leveraging its corporate muscle in this recent announcement, it looks an awful lot like their idea of “educating people about fair use” is more akin to indoctrinating the public toward a concept of fair use reshaped as the Internet industry sees fit.  And it could work.  Fair use is not a legal defense most people need to concern themselves about; and misconceptions about its application abound. So, Google and its cronies could succeed in sowing a general perception that if a work is used on YouTube, etc., it should be presumed fair; and just in case the individual rights holder has any doubts, crushing litigation will happily clear it up for him.  Sounds progressive, no?

*See comment from Anonymous regarding technical distinction between “red flag” and “actual” knowledge.

© 2015, David Newhoff. All rights reserved.

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  • Good article but just need to highlight something. You say: “As cited in this post, the Internet industry has relied frequently on splitting hairs between what is often called “red flag” (non-specific) knowledge and “actual” (specific) knowledge, the former definition being one of the ISP’s preferred defenses against taking action to mitigate any harm being done via its platforms.”

    However this mischaracterizes the law. Both red flag knowledge and actual knowledge relate to specific knowledge as the law currently stands. The difference is that the second is an objective standard for specific knowledge while the first is a subjective standard for specific knowledge. This comes directly from Viacom v. YouTube, where the Second Circuit stated: “The difference between actual and red flag knowledge is thus not between specific and generalized knowledge, but instead between a subjective and an objective standard. In other words, the actual knowledge provision turns on whether the provider actually or “subjectively” knew of specific infringement, while the red flag provision turns on whether the provider was subjectively aware of facts that would have made the specific infringement “objectively” obvious to a reasonable person.”

    • Thanks. You are right, of course. I put the parenthetical terms in there as an aid, but I realize they don’t necessarily help. I am frequently challenged by the contrasts between the way certain terms are used in the law and the way we use them in ordinary communication. Appreciate the clarification, and I’ll put a note in the post.

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