I read several complaints on Twitter and in various blog posts from OSP representatives and copyright critics that last month’s USCO-hosted discussions in San Francisco about Section 512 were not very productive and that the rights holders are not being reasonable. I cannot comment on tone or details as I was not there. But I do think it is significant that the five myths described below seemed to trend rather emphatically from the keyboards of some of the usual suspects in the days immediately following those meetings. So are the rights holders being unreasonable, or are they being asked to politely entertain fallacy as though it were productive discourse?
1. The DMCA Favors Rights Holders
This is the most persistent myth that continues to echo throughout the blogosphere and even mainstream media as though it were axiomatic.
Perception: It’s too easy for rights holders to remove material and either purposely or inadvertently stifle free speech or fair uses.
Reality: DMCA takedown notices are not easy to send, particularly if the OSP is Google. Stephen Carlisle describes the 46+ steps that a notice sender must go through, and Ellen Seidler has thoroughly documented the roadblocks in the notice/takedown/counter notice process. These are not opinions but verifiable data that anyone can confirm for themselves. Anecdotally, independent rights holders consistently report that they have given up trying to enforce their rigths via DMCA because the process is too cumbersome and the rate and volume of infringement too great to address with their limited resources. Meanwhile, safe harbor provisions presently shield OSPs to the extent that they have little to no motivation to mitigate the ever-increasing rate of infringement.
Next, if a User/Uploader files a counter notice—even in regard to a clearly infringing file—and the OSP restores that file, at that point the rights holder’s ability to enforce a claim via DMCA is exhausted. She has no recourse other than litigation, which most creators and artists cannot afford. And if the User/Uploader is based in a foreign country, as is often the case, litigation is likely not an option at any price.
2. The Largest Rights Holders Are the Biggest Abusers
Perception: Because the large, corporate rights holders (e.g. studios & labels) send out a high number of takedown notices via automated systems, it is logical to assume they will cause the greatest number of infringements against free speech and fair use.
Reality: To borrow an excellent metaphor from a recent Berkeley/Columbia report (which actually skews toward OSP interests), it may seem sensible to assume that the entitites casting the biggest nets will catch the most “dolphins.” And although this is sound reasoning on the surface, the data we have to date—including this report—seems to point in the other direction. Although a very high number of notices (tens of millions) are sent by the large rights holders, these are also the entities that can afford best practices and which have teams of legal experts to oversee the process. They also own the largest libraries of the most popular material that is universally infringed across the entire web. Based on available information, it appears that despite the high volume of notices, it is actually quite rare that these entitites send a notice that is not targeting an infringing link or file.
Meanwhile, both quantitative and qualitative data thus far indicate that DMCA takedown errors tend to be made by smaller, less experienced, entities or rights holders and that outright abuses typically come from entities or individuals who have no grounds to use DMCA in the first place. In fact, this is often the foundation of many attempted abuses: that a DMCA takedown doesn’t even concern a copyrighted work. This observation is supported by the anecdotal evidence offered by organizations like EFF in its communications and in court briefs filed by EFF and similar groups. Consistently, DMCA abuse stories involve every kind of notice filer other than the big rights holders.
3. Use of a Whole Work Can be a Fair Use
This looks like a shiny new talking point in the rhetorical arsenal of copyright critics, one that seems to be a direct reaction to proposals made at the USCO round-table discussions.
Perception: Rights holders have proposed that a stay down amendment to the DMCA might at least focus on uploads of whole works. But, the opposition counters that whole works can be fair uses. So how can there be a statutory provision for whole works?
Reality: Every serious person in the conversation knows exactly what’s being discussed in the context of whole works. We’re not talking about the fact that the Betamax case (1984) holds that it is a fair use when you record a TV show for your personal use. We’re not talking about the “use of whole works” by Google Books, judged fair based on the “transformativeness” of the application, which displays snippets but does not make whole, copyrighted books available. And we are clearly not talking about new creative expressions, which almost never make use of whole works but only some portion of a prior work.
What we are talking about with regard to Section 512 and whole works is what happens when some jamoke uploads a whole feature film, TV show, or song to YouTube. This is not only not a fair use, but it is not even a use at all. It is simply an unlicensed distribution. That anyone would even refer to fair use precedents like the Betamax case with regard to this kind of blatant infringement reveals precisely the kind of “reasonable discussion” rights holders are being asked to have regarding DMCA.
4. Copyright Interests Want to End Safe Harbors
This seems to be one of those errors that occurs when we play the kids’ game Telephone with the exponential power of social media to distort facts.
Perception: Because rights holders are seeking amendment to the DMCA, particularly to Section 512 with an emphasis on some sort of stay down provision, the logical extension of these efforts will be to end the crtitical safe harbor protections for OSPs.
Realtiy: Many rights holders depend on safe harbors. News organizations in particular are both rights holders and OSPs and would be adamant about preserving the safe harbors in the DMCA if anybody were trying to “end” them. What rights holders are seeking on this matter is that major OSPs meet the obligations already intended by the DMCA. Safe harbor is not unconditional. But many OSPs have pushed the boundaries of reason and good faith vis-a-vis compliance with the statutory conditions necessary to maintain the safe harbor shield.
5. New Creators are Afraid to File Counter Notices
In fairness, this theme is not wholly unfounded but appears to be exaggerated in the context of the larger discussion about DMCA. (And this one has many angles, so apologies for the length.)
Perception: A new creator (e.g. a YouTube video maker or blogger) will make a fair use of a work but will be afraid to file a counter notice because this may trigger a lawsuit by a corporate entity with an army of attorneys.
Reality: While the counter notice fear does manifest for some new creators, this case-by-case concern is a distraction from the more general debate about the inadequacy of DMCA to address large-scale and clear infringements by users and entities that are not creators of any kind.
With regard to creators, the consideration of use and the remedies for these concerns should be the same in the age of the internet as they were 20 years ago. A creator of a new work has always been responsible for considering the copyright implications of his/her use of a protected work; and web-only creators are not technically any more vulnerable to litigation in a digital-age paradigm. (To the contrary, millions of infringements are let go every day.) Just because digital technology makes it easier to infringe, this should not inherently change the burden to consider copyright when making explicit—let alone commercial—use of a prior work in a new expression.
This is not to say that a new creator’s work will never be wrongly targeted by a DMCA takedown notice. In a universe comprising trillions of uses, it is almost inevitable that this will happen. But the remedies are no different for the creator who publishes on a web platform than any other traditional distribution. And these remedies vary depending on the parties involved. If a creator has made use of a work he believes to be fair and is unsure about filing a counter notice, he may do what every other creator has done for decades, which is to seek legal advice.
If I were making a documentary film and needed footage belonging to a major movie studio, I would not be foolish enough to distribute on a presumption of fair use without legal counsel, and I would err on the side of licensing that footage. Because, yeah, those guys have big legal guns. Why should this consideration be any different for a blogger or a YouTuber? Or to look at it another way, would I be more cavalier about infringing the work of a fellow filmmaker because I know he doesn’t have a legal department? That seems wrongheaded. Particularly in a case in which the work(s) used are the property of an independent author who also does not have attorneys on staff, why is the new creator any less responsible for considering copyright infringement than the original author is for considering fair use? It seems to me these parties are on equal footing in these evaluations.
But in this latter circumstance of indie v indie, we return to the problem of Myth #1 because the new creator has the advantage provided by the counter notice procedure in DMCA, which would allow a use to persist on a web platform, whether it is infringing or not, unless the original author has the resources to litigate. If the new creator’s use really is fair, that’s probably what the original author’s attorney would advise rather than a lawsuit. If the use is actually infringing, then the liability occurred when the file was originally uploaded, and a counter notice is not actually required in order for the original author consider litigation. Hence, it seems the “fear” of filing counter notices, while true in certain cases, is probably being exaggerated in order to avoid talking about what we’re really talking about.