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.

Is Instagram (Facebook) Blocking DMCA Takedowns?

When the news broke that Charlie Watts had passed away, Instagram, Facebook, et al naturally bloomed with tributes, editorials, eulogies, and personal notes of gratitude for the late percussionist’s contributions to music. But although the virtual vigil has become standard practice every time a beloved cultural figure passes away, one overlooked difficulty of this and similar trends is that all that sharing is not particularly good for the photographers. Those men and women you likely never heard of who captured the images tend to lose opportunities as a result of all that sharing.

The force that motivates fans to search for that iconic photo of Watts or Ed Asner and add it to their social feeds is, of course, timeliness. But timeliness is also what drives news media and other commercial enterprises to license photos that accompany obituaries, tributes, creative commentary, etc. So, the problem with all that sharing (loving though it may be) is that it dilutes the value of these images, and often during the same periods when interest in the images is at its peak. And that does not even account for the commercial entities that publicly display images without license “because it’s already all over the internet anyway.”

As Martin McNeil, a former pro photographer in Glasgow tells me during an interview, “The only way to preserve the value of your work, truly, is to prevent dilution.” And that is precisely why he sent thirty-four DMCA takedown notices to Instagram directed at pages displaying his photograph of Ray Harryhausen, all uploaded around the May anniversary of the filmmaker’s passing (in 2013). The photo depicting Harryhausen with several of his iconic creature sculptures, was captured at the Edinburgh International Film Festival in June of 2008, and McNeil says he is used to seeing it trend on social media in May and June, corresponding to the observance of Harryhausen’s passing and birthday, respectively. But this year was the first time McNeil says that has ever seen Instagram erect a gauntlet of roadblocks to his takedown requests.

Instagram Exceeding Its Authority Under DMCA

I mention the dilution problem in order to frame the broader economic challenge for visual artists, but the plain fact is that the takedown provision of the DMCA does not require a stated reason for a copyright owner to send a request to an ISP to remove a work. As long as the sender of the notice is the legal owner of the copyright, or an agent of the owner, and the rest of the notice conditions are met, the default terms of the statute require that the ISP “expeditiously remove” the material. More information may be required from the copyright owner if the user/uploader files a counter-notice alleging that the takedown was wrongful (either for administrative or legal reasons), but no questions of that nature apply to the incoherent and legally untenable responses that McNeil received from Instagram regarding his takedown requests.

As McNeil details in a thread comprising over sixty tweets he addressed to Head of Instagram Adam Mosseri, one of his takedowns was honored right away, while the other thirty-three triggered boilerplate emails asking for “An explanation of how you believe the reported content is infringing your copyright.” “I was knocked back on my heels,” McNeil tells me, and for good reason. Because Instagram has no business asking this question. As such, he responded to all thirty-three messages with his own boilerplate, correctly stating that nowhere in the §512 of statute is there a requirement for the claimant to follow up on a properly filed takedown notice with further legal explanation as to why a use is infringing. The fact that Instagram asked the question at all is anathema to the foundation of §512, which was written to immunize platforms as neutral providers that bear no liability for the actions of their users.

After his follow-up responses to the thirty-three emails, McNeil received partial satisfaction, but in a manner that is even more absurd than the first round of responses. Because with regard to eleven his requests, the Insta-minions told McNeil that “…it’s not clear that you have rights to the reported content. In particular, it does not appear that you (or your client) created the reported content, or that you are otherwise authorized to submit this report.” Um. What?

Instagram has no authority under the terms of the statute to allege that a notice sender is not the owner of a work, or agent of the owner, subject to a takedown request. All DMCA forms, by law, contain a statement that, under penalty of perjury, the filer warrants that to the best of his knowledge, that the information provided is accurate. And that is supposed to be the end of the conversation for the ISP. Only the user/uploader of the material is empowered to respond if he believes, in good faith, that the notice filer has misrepresented himself as the copyright owner or agent of same. Remember, the ISP is allegedly neutral under the law, which is why it is shielded from liability in the first place.

So, to add outrage to absurdity, the fact that twenty-two Insta-minions removed McNeil’s photo as requested, while eleven of their Insta-colleagues accused McNeil of lying about his ownership of the same photo, should make any reasonable person ask the obvious question:  WTF is going on at Instagram?  Is this about inconsistency in training among the staff assigned to address DMCA matters? Or is there something special about the eleven uses that Instagram is reluctant to remove? Or is there fresh policy at Facebook/Instagram to slow walk takedown requests and/or construct new obstacles to dissuade rightsholders from enforcement?

After all, the average photographer, especially the one just starting her career, is likely not as legally savvy as Martin, who happens to be pursuing a law degree today. And from Facebook’s point of view, every valid but unsuccessful takedown only serves the company’s strategic interests.

As noted, McNeil says that in his experience, this kind of dithering by Instagram is relatively new behavior, which at least implies that a policy change may be lurking behind the opaque walls at Facebook HQ. But whether the scattershot responses he received are the result of executive suite decisions or cubicle level incompetence, what they do indicate at scale is that Instagram is guilty of noncompliance with the statutory conditions required to retain its “safe harbor” immunity under Section 512.

Assuming McNeil’s experience is not unique (why would it be?) and thousands of copyright owners are lately receiving emails alleging that they are not rightfully authorized to submit takedowns, this begins to look like a strategy which endeavors to avoid expeditious removal of material upon receipt of properly filed takedown requests. If that is what’s going on, Facebook’s attorneys should perhaps look at what happened to Cox Communications when it lost its §512 immunity and ask themselves, WTF are they doing? Because demanding that a notice filer prove, beyond the statutory requirements of the DMCA, that he is the copyright owner, does appear to be an even brighter red-line violation of the conditional safe harbor than Cox’s pattern of avoiding account termination in its litigations with record labels.

Still, McNeil did provide the Insta-minions with the most reasonable proof of ownership available (short of a full-blown discovery process), despite being under no obligation to do so. He sent them side-by-side composites of his Harryhausen photograph next to the relevant Instagram copies, and … nothing. Just a repeat of the same allegations that perhaps McNeil is not telling the truth about being the owner of the work.

The fact that this legally unfounded insult is aggravated by the inconsistency that twenty-two takedowns of the same image were eventually honored is enough to make a sane man weep into the pages of his Kafka anthology. So, when the anti-copyright crowd says that DMCA abuse is a problem, they’re not wrong, except of course about who they say is abusing it.  

Also see story at Fstoppers.

Photo by: pareap

Podcast – The Multi-Billion-Dollar Piracy Industry with Tom Galvin of Digital Citizens Alliance

In this episode, I speak with Tom Galvin, CEO of Digital Citizens Alliance, about piracy of creative works and DCA’s latest report, issued this month in collaboration with the research group White Bullet. The report, entitled Breaking Bad(s): How Advertiser-Supported Piracy Helps Fuel a Booming Multi-Billion Dollar Illegal Market, reveals that piracy is a highly profitable criminal enterprise and is intertwined with other forms of cyber-crime—from personal identity theft to national security

Piracy of creative works like motion pictures, TV shows, music, and live sports is a vast and growing criminal enterprise. In its latest report, Digital Citizens Alliance estimates the combined advertising and subscription revenue generated by piracy is at least $2.34 billion annually. Meanwhile, in addition to its ill-effects on the creators whose works are pirated and the online advertising ecosystem, piracy plays a key role in fostering other forms of cyber crime.

Episode Contents

  • 01:52 – Breaking Bad(s) Report Overview
  • 04:05 – Ad and subscription supported piracy
  • 06:49 – The online advertising ecosystem.
  • 08:49 – Some successful mitigation since 2014.
  • 11:14 – The downsides of piracy for brands.
  • 15:10 – Major brands found were Amazon, Facebook, & Google.
  • 18:01 – It is possible to do something.
  • 19:24 – Advertiser pressure to get ad tech to clean up its act.
  • 21:09 – Dangers to the consumer.
  • 27:13 – Why aren’t the hazards deterrents?
  • 30:30 – Drive-by malware.
  • 32:07 – Piracy is a vertical for broader criminal enterprise.
  • 33:26 – What about solutions.
  • 37:33 – Even if you don’t care about copyright owners…
  • 40:30 – Intersection with disinformation campaigns?

Second Circuit Soundly Denies Rehearing to Warhol Foundation

Many copyright observers, me included, believe the Supreme Court’s majority opinion in Google v. Oracle was deeply flawed because rather than answer the copyrightability question presented (i.e. whether APIs are properly a subject of protection), the Court instead deconstructed that analysis and spread it across the four factors of the fair use test. As a result of that decision, copyright case law was left with a fair use opinion so over-broad in some of its reasoning that it also explicitly stresses that its findings should be read as unique to that case and not interpreted to disturb fair use doctrine in general. Warhol

And rightsholders should be very glad the Court sought to limit that opinion because almost immediately on the heels of the decision, the Andy Warhol Foundation filed a petition for en banc rehearing at the Second Circuit, principally on the basis that Google v. Oracle had altered the fair use analysis in its favor. At issue is Warhol’s use of photographer Lynn Goldsmith’s unpublished photograph of Prince (see background below), and as stated in earlier posts, I would personally find non-infringement in the Warhol screens, but not for most of the reasons presented by AWF, and especially not for the reasons adopted in Google.

What was most concerning for creators about the Google decision was the very broad opinion (mostly discussed in the analysis of fair use factor four on potential market harm) that general social purpose may be served by finding fair use of even verbatim copying of protected works. Thus, AWF argued that, just like software innovation serves social purpose, so too, does fine art serve a social purpose, even where verbatim copying exists.. And while those generalizations are true, one can imagine how a too liberal reading of the “social benefit” premise might find fair use in almost anything.[1] Thus, AWF’s petition for rehearing was the first test of the Court’s stated limitations in Google, and here, the Second Circuit was unequivocal. In a withering 63-page opinion, it responded specifically to the argument that Google v. Oracle had changed the law thus:

In particular, the Supreme Court in Google took pains to emphasize that the unusual context of that case, which involved copyrights in computer code, may well make its conclusions less applicable to contexts such as ours. Thus, while Google did indeed find that the precise copying and incorporation of copyrighted code into a new program could (and did, on the particular facts of the case) constitute fair use, the opinion expressly noted that ‘copyright’s protection may be stronger where the copyrighted material . . . serves an artistic rather than a utilitarian function.’

And to further emphasize that the outcome in Google had not altered fair use doctrine as AWF asserted, the opinion states:

And indeed, the Supreme Court did not leave that conclusion to inference, expressly advising that in addressing fair use in this new arena, it ‘ha[d] not changed the nature of those [traditional copyright] concepts.’

So, this is an odd one to comment upon for me because I believe the fair use reasoning in Google v. Oracle is very bad law, while I find the Second Circuit’s analyses in Goldsmith to be generally good law, albeit arriving at a conclusion with which I disagree. Most importantly for rightsholders, though, is that the first attempt to exploit the Google decision beyond the limits of a certain type of computer code has failed. And that is certainly very good law.

Background on AWF v. Goldsmith (reprinted from earlier post)

Lynn Goldsmith captured the photograph at issue in 1981, during a truncated photo session with the semi-reclusive musical artist Prince Rodgers Nelson, who was then barely known to mainstream audiences as Prince. Goldsmith contends that she made certain creative choices resulting in an image of the “vulnerable human being” behind the persona. The photograph was never published but was licensed in 1984 (unbeknownst to Goldsmith) to Vanity Fair as a “reference photo” to produce an illustration to accompany a story about musician’s rise to stardom. In fact, the photo was used by Andy Warhol make a series of silkscreens similar to those he has made of Marilyn Monroe, Mao Zedong, etc., all using photographs as original sources.

Goldsmith was not aware of the existence of the Warhol screens until 2016 when, after Prince’s death, Vanity Fair published a special edition with one of the Warhol versions on the cover. At that time, Goldsmith communicated to the Andy Warhol Foundation (AWF) that the works may infringe the copyright on her still unpublished photo, and in response, AWF filed suit seeking a declaratory judgment of non-infringement or, barring that, a finding of fair use. The district court held the Warhol screens to be fair use, primarily by following the Second Circuit ruling in Cariou v. Prince, but on appeal, the court reversed, finding the Warhol screens are not fair uses.

[1] Notably, the Court could have served the same intent by finding APIs to be uncopyrightable, which would have been a cleaner ruling with respect to copyright law in general.