Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

5 DMCA Myths That Just Won’t Die

DMCA MythImage from Pond5

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.

For example, a repeat infringer is supposed to have his/her account suspended; and if this condition were honored, this alone would have a mitigating effect on infringement without dramatically changing the law or “ending” safe harbors.  Unfortunately, the DMCA does not explicitly define the meaning of “repeat infringer,” and many OSPs have exploited this imprecision in the statute to avoid adopting or enforcing meaningful Terms of Use policies for chronic abuses of their services.  Given the OSPs’ reluctance to cancel accounts and the ability of Users to create multiple identities, the DMCA inadvertently sheilds both Users and OSPs, which may both (in some cases) monetize outright infringements of works.  Congress did not intend to provide safe harbor for willful and repeated infringements for financial gain.

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.

Shakespeare would thrive in a world with copyright.

shakespeare

I saw it again the other day. In a sarcastic tweet that flew by. A familiar theme. Without naming names, it said something like this: As if creativity didn’t exist before 1709. There was no Shakespeare.

For one thing, this is the kind of pugnacious statement that I can’t believe ever informs the copyright debate. Because I don’t know anyone who asserts that creativity did not exist before copyright. Creativity existed in pre-homo-sapiens. But so what? That fact is as useful to a discussion about contemporary life as observing that eating predates cooking.  True but ick.

The year 1709 is of course a reference to England’s Statute of Anne, which is identified as the precursor to modern copyright law because that legislation was the first to grant exclusive rights in written works to authors rather than publishers. And if it is sufficient for some to condense four centuries of history since Shakespeare’s death into a single tweet, maybe this reveals something about those who both say and believe unexamined statements that invoke the Bard as exemplary of copyright’s irrelevance. In particular, this line of reasoning makes two fundamental mistakes.  The first is one of overstating the extent to which Shakespeare relied upon borrowing; and the second is one of understating the significance of the idea/expression dichotomy in copyright law, which dictates that ideas may not be copyrighted and only unique expressions may be.

As explained in a previous post, the reason Shakespeare and his contemporaries so often borrowed, or even outright plagiarized, existing work had a great deal to do with the exigencies of producing high-volume, high-speed theater in 16th-century England and little to do with the abilities of the writers themselves to be inventive. Had the Arthur Brooke estate, for instance, owned a copyright on The Tragicall History of Romeus and Juliet, everything we know about Shakespeare’s gifts implies that he had both the talent and the desire to work around this relatively minor creative barrier. Moreover, the result would almost certainly have been a more distinctive play than Romeo & Juliet. After all, Brooke would not have owned the idea of ill-fated lovers, just his own expression of it.

The idea/expression dichotomy is the reason why a large volume of works can share many qualities with one another and still remain distinctive enough to be considered individually “original” and, therefore, separately copyrightable. And in the generalized debate—especially when it’s made tweet-sized—I think people fail to recognize just how subtle the distinctions among works can be in order to render them non-infringing upon one another. Combine this error with a glancing knowledge of Shakespeare, and it’s easy to make The Bard into an unwitting poster child for the importance of borrowing or building upon prior works.

Part of Shakespeare’s genius—as historian Bill Bryson puts it—was to “…take pedestrian pieces of work and endow them with distinction and, very often, greatness.” The manner in which he achieved distinction and occasional greatness was both by invention (e.g. a plot device here, a twist on an idea there) and by his remarkable ability to produce indelible sounds from the fledgling English language. If we were to keep his raw talent intact, remove the political, social, and economic barriers of his time, and replace these instead with only the boundaries of modern copyright, Shakespeare’s ability to draw upon source elements and make them uniquely his own suggests that he would have done quite well in such a regime.  To put that in a contemporary context, if author E.L. James is skilled enough to adapt her Twilight fanfic into the separately copyrightable 50 Shades of Grey, I think it’s fair to say that Shakespeare would be up to a similar task.

To Bryson’s point, we should view Shakespeare as already wrangling with the idea/expression dichotomy by revising existing notions and elements into richer expressions than they had been.  Like any artist, we see him working around the barriers of his own internal aesthetics and sensibilities. And by contrast, the external barriers of copyright are quite minimal to the author, which is why this entire line of criticism doesn’t tend to come from creators and artists themselves. Perhaps more relevant to my initial point, though, is the fact that a great deal of Shakespeare’s often-exaggerated “borrowing” would be consistent with copyright anyway. This would likely be the case with all of the history plays or certainly with plot devices taken from ancients like Plautus, who died in 185 BC.  There’s a lot more to Shakespeare than Romeo & Juliet, and we have far more reason to imagine that he would thrive in a world with copyrights than to assume that he would wither.

It’s just too easy to conjure Shakespeare as a lofty trope of literary brilliance and then assume that the works as we know them are now fossilized in the only form they could ever have taken. No one who has ever created anything would make this mistake because the end product is almost never the only way the process could have gone. If Shakespeare had both copyright and free speech, it is more rational to expect that he would have been even more prolific and profound than it is to imagine that he would have produced less—or nothing. As it stands, he was modestly prolific by both 16th-century and contemporary measures. Sam Shepard, Tennessee Williams, Neil Simon, Eugene O’Neill, and Arthur Miller—to name a few—all wrote more than Shakespeare and all certainly worked in a world with copyrights. So, of course creativity itself predates copyright law; but invoking Shakespeare — though it may seem counter-intuitive — only suggests that creativity was weaker without it.

Thoughts on Gawker Legal Woes

My initial response to the prospect that Gawker Media might go down in flames as a result of its legal woes was somewhere between ambivalence and satisfaction.  I’m not generally sympathetic to the proposition that invasions of privacy are inherently protected by freedom of the press, particularly when the invasion involves “information” as useless to the public as a sex tape—let alone one involving a former pro wrestler.  So, if Hulk Hogan’s $140 million award from his lawsuit and another five defamation suits lined up behind that are going to send the company into bankruptcy, so be it.  Do we really need a media service whose motto declares Today’s gossip is tomorrow’s news?  In conjunction with also reading this week that just 37% of America’s high school seniors are proficient in reading at grade level and 12% (ouch) are proficient in US History, it’s hard not to cheer about even a small reduction in the gibberish industry.

But then it was confirmed late last week that Silicon Valley VC Peter Thiel has been secretly bankrolling the Hogan litigation, and this revelation is generally being reported as an act of retaliation for the company’s now-defunct Valleywag having published a story in 2007 “outing” Thiel as gay.  This narrative in itself spawns a range of opinions on the matter of how angry Thiel deserves to be, why there should be any shame in being gay, and that whole tangential line of discussion.

But more to the point, and regardless of Thiel’s motives or sexual orientation, journalist Glenn Greenwald is quoted on CNN, observing the potential hazard to the free press when he says, “Petty, vindictive billionaires like Thiel literally have the power to destroy media outlets in secret.”  Greenwald and others who echo this sentiment have a point, but then so does Thiel, who says, “Gawker … built its business on humiliating people for sport. They routinely relied on an assumption that victims would be too intimidated or disgusted to even attempt redress for clear wrongs. Freedom of the press does not mean freedom to publish sex tapes without consent. I don’t think anybody but Gawker would argue otherwise.”

Certainly, it is ironic to see this particular billionaire seek to kill the kind of creature he helped spawn as an early investor in the social media site Facebook.  There has always been money in tabloid journalism, but the internet and social media have not only had a multiplying effect on that axiom, they have also played a substantial role in blurring the line between the salacious and the edifying.  As a result, it seems that some members of the public will now more aggressively pursue a “right to know,” even in circumstances when there is nothing worth knowing.  At the same time, we can’t deny that sometimes there is real news in the dirt.   It was Gawker in 2012 that outed the super-troll Michael Brutsch (aka Violentacrez) to whom Reddit had given an award for attracting a large following to his threads promoting sexual assault of teenage girls.  And the Gawker is not without some thoughtful editorials in between its grabby, tabloid reportage.

In a New York Times OpEd this past Monday, author Stephen Marche, who has been repeatedly attacked by Gawker, wrote a defense of the site called Gawker Smeared Me, And Yet I Stand With It.  His perspective is that we should not blame the media company for reflecting the world in which we live and that there is value in the reflection itself.  He writes the following:

“Gawker is new media, but it possesses an old-fashioned sensibility that dates from the 18th century. The editors and writers want power to be made uncomfortable whether or not it deserves the discomfort, and they believe that the public right to information is more important than any individual’s right to privacy. I would say, to anyone who believes that Gawker is just the gutter press, that those values are worth something even in the gutter.”

I don’t know. That seems a bit high-falutin in this context.  I think the purpose of the free press—certainly the reason it’s part of the First Amendment—is to speak truth to power, not to make the powerful uncomfortable whether they deserve it or not.  Nobody can deny that there’s money in the latter, but that doesn’t imbue the enterprise with great social value. For instance, I don’t agree with Marche when he says “no one could possibly object” if a leaked sex tape involved a congressman.  Or perhaps he’s correct to suggest that no one would object but is missing the point that we probably should object.  People need to know if an elected official has broken a public trust, and if that violation involves a sex scandal, then that’s part of the story.  But the people don’t need the video and should not confuse mere curiosity to see the video with anything so weighty as freedom of the press.

I would no more defend the distribution of Hulk Hogan’s sex tape on First Amendment grounds than I would defend the distribution of leaked nudes of Jennifer Lawrence and other celebrities in 2014 that caused a similar stir.  Gawker Media deserved to be sued in this case and deserved to lose, in my opinion.  But at the same time, it’s hard to be entirely comfortable with the prospect that one man with a vendetta and a big checkbook might sue a media company out of existence.  Marche writes, “Mr. Thiel has turned Gawker into a scapegoat for the shifting world of celebrity culture that we all inhabit. He has made Gawker into a scapegoat for the world he himself is helping to create.”

But I don’t think that’s quite right either.  Yes, Thiel has personally invested in creating this world we now inhabit and so, perhaps he deserves in a karmic sense to be among its victims.  But Peter Thiel is not responsible for the editorial decisions at Gawker, and he is certainly not responsible for the fact that millions of people are actually interested in seeing Hulk Hogan’s stupid sex tape. Moreover, a fact that continues to manifest in the digital age is that just about anyone can be made “famous” through leaks, shaming, bullying, mob justice, etc. As such, it’s probably best that even the gossip-mongers keep their sense of a “right to know” in its proper perspective.