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

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.

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