Tag: DMCA

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

As DMCA Review Gets Real, Anti-Copyright Rhetoric Gets More Surreal

Among the reasons I defend copyright is that I firmly believe it is inadvertently one of the most profound expressions of democratic principles in the American Constitution. When the Framers essentially transposed English copyright into Article I of the Constitution, they could not possibly have imagined the full value—cultural, economic, and political—of vesting authors, with both the moral and pecuniary rights that would be embodied in copyright law. But as much as I will eagerly advocate those rights, I will not betray broader principles to achieve that goal. If the current precariousness of the Republic should remind us of one lesson above all, it is that, in America, means remain vastly more important than ends.

Sadly, too many Americans across the political spectrum have broken faith with that principle, including those who would weaken, or even destroy copyright. For instance, Techdirt founder Mike Masnick appears to be a Democrat (based on his tweets and other writings), and is certainly not a Trumpian. Nevertheless, the site he edits published a post on November 18 by Daniel Takash that begins as follows:

I’m certainly not the first person (especially on Techdirt) to point out that if conservatives are really concerned about online censorship, they should be putting copyright law under the microscope, rather than, or at least in addition to, Section 230.

This is what happens when someone cares more about a specific agenda than they do about the broader, moral implications of how they advocate that agenda. Here, Techdirt is so determined to blast copyright law that it publishes a post in which Takash gives credence to the false narrative that social platforms have been censoring conservative views. As I have argued in several posts, this accusation only has merit if one’s definition of “conservative” is an ideology of lies and wild conspiracy allegations that undermine the rule of law, basic decency, and public safety. That is a stigma the GOP is going to have to resolve as the Trump effect (we can only hope) begins to wane, but at the moment, it is a dangerous narrative that should not be given air in the service of any policy goal. Period.

Noting that the discussion about Section 230 emanating from the White House, and oozing into congressional hearings, can best be described as incoherent and futile, Takash is effectively asking that the same kind of inarticulate vitriol be slung at copyright law in the name of “conservatism.” His post alludes generally to “Trump’s troubles” with the use of copyrighted works in campaign videos and rallies, as if to imply first, that rightsholders have no interest in how their works are used; and second, that the use of works in political statements is not a complex issue. Instead, Takash simply invites “conservatives” to adopt the view that copyrights are tantamount to censorship.

Maintaining sound copyright laws has enjoyed bipartisan support throughout the history of the country, and many of its strongest advocates have been Republicans. One of my favorite colleagues with whom I regularly discuss copyright is a lifelong Republican, and the fact that we approach policy from different ideologies only adds to the richness of the conversation. That’s the way Congress used to work (at least more than it does now), and in the tiny, obscure world of copyright law, it still works that way—a bipartisan conversation in which nearly every Member agrees with the premise that American creators are essential and that copyright law is a constitutional principle that has capably stood the test of time.

Section 230 should be reviewed soberly and rationally—not because it shields platform “censorship,” but because it shields criminal conduct that destroys, or nearly destroys, people’s lives. But that has nothing to do with copyright law, which is being reviewed appropriately and apolitically. In contrast to the Section 230 noise that has lately rumbled on Capitol Hill, the review of the Digital Millennium Copyright Act (DMCA), led by Chairman Tillis of the Senate Judiciary Committee has been orderly, rational, and not in any way subsumed by the political circus that has distorted a wide range of other policy matters.

Last week, Chariman Tillis published an open letter asking stakeholders to provide input for potential revision to the DMCA. Comments are due on December 1, and after review of that input, the committee is expected to present draft legislation on December 18. The Tillis letter poses fifteen questions spanning many topics for consideration. These points summarize the findings by the committee after its yearlong process hosting hearings and conducting internal review into whether the DMCA has fulfilled its purposes as Congress intended 22 years ago. The topics in the letter also echo the Copyright Office report on Section 512 of the DMCA, which recommends the law should be updated.

As most readers know, copyright owners, especially small and independent owners, have told both House and Senate Judiciary Committees that DMCA Section 512 does not come anywhere close to working as intended. The statute, which provides conditional immunity for online service providers that unintentionally host copyright infringing material, has been a complete failure for the independent creator, and extraordinarily burdensome for the institutional copyright owner.

The day-to-day reality of implementing Section 512 betrays Congress’s expressly stated anticipation that OSPs and rightsholders would collaborate to keep infringement down to a manageable scale. Instead, the immunity provided by the statute has functioned as a disincentive for OSPs to mitigate infringement, thereby allowing some of the biggest companies in the world to profit from infringement at a scale worth billions of dollars over the past two decades.

Because Section 512 shares a core principle with Section 230 (i.e. the premise that the OSP should not be liable for the conduct of its users), the two statutes are often conflated in the blogosphere, and occasionally confused by the press, which might carelessly refer to 230 and copyright in the same sentence. But because the two provisions grant different types of legal immunity to some of the most powerful companies on Earth, another attribute they share is that Big Tech will spare no expense defending the status quo of both laws. And in that endeavor, they can be counted upon to exploit all the confusion they can muster. This is the simplest explanation for Takash’s illogical (and frankly immoral) appeal to “conservatives” to embrace a copyright is censorship ideology.

As legislative proposals become available, I will follow up with commentary on the nuts-and-bolts in that process. But as a preliminary observation, it is hard to imagine that at least some revision to 512 will not be proposed, and creators should be prepared for Silicon Valley’s network of anti-copyright proxies to launch a well-funded assault to defend the territory it has so effectively usurped.

The Biden Administration Should Avoid Past Mistakes on Cyber Policy

As thoughts turn to transition and, with any luck, healing divisions, the Biden-Harris administration should avoid any temptation to repeat mistakes made by the Obama administration with regard to cyber policy. I admire Barack Obama for many reasons, but the fact remains that his administration was too cozy with Silicon Valley, and this was understandable, if not entirely reasonable or prescient.

Let’s face it, in those days, Obama was hardly alone in staring Googley-eyed at the shiny objects bestowed upon us by the magic innovation factories in Northern California. Wall Street was ebullient. The press was eager to parrot the virtues of “free speech and innovation” in between scholarly sounding chats with billionaire whiz kids. And the public generally seemed to accept the narrative that the internet was super-charging democracy worldwide and should, therefore, be left to self-regulate—or at least to the illusion that it was self-regulating. So, of course Barack Obama, the first post-Boomer president, the guy who famously wanted to keep his Blackberry when he entered the White House, was a tech-geek.

But President Biden will inherit a very different America—one chagrined by having its dirtiest laundry displayed across every screen—a nation that has to confront deep divisions and the painful acknowledgement that we are not even on the same page with regard to the most classical principles in American civics. Or perhaps more frustratingly, we may be more on the same page than we think, but we will never know it because forces beyond our control are deepening our apparent divisions of which Trump is both a symptom and a cause. Without a doubt, one of those forces is the internet.

The Biden administration has announced that it will “Establish a new Task Force on Online Harassment and Abuse to focus on the connection between mass shootings, online harassment, extremism, and violence against women.”

A good start. The next administration must take a more critical, more skeptical look at how toxic some of the flaws in our cyber policy truly are. As my friend Neil Turkewitz writes, “For far too long, we have been operating under a myth of neutrality, and excused malfeasance as a cost of liberty. Not only is the myth wrong, but the costs have principally fallen on the most vulnerable members of the community.”

But although the Financial Times predicts that Silicon Valley cannot expect the kind of relationship it had with the Obama administration, it also notes a number of potentially uncomfortable allies, including that former Google chief executive Eric Schmidt is “being talked about to lead a new technology industry task force.” I hope the Biden-Harris administration will take note that this chickens-minding-the-foxes approach to cyber policy played a significant role in fostering the very divisions Mr. Biden says he is determined to heal.

Real Policy Reform vs. Rhetoric

There has been a lot of noise in congressional committees about Section 230 vis-à-vis claims of censorship and political bias—allegations that are not only unfounded but are acts of legislative malfeasance toward those American citizens who are actually harmed by over broad interpretations of Section 230. Just like a deadly virus, online harassment can reach anyone anywhere; it knows no party loyalty.

Most acutely, women and girls have been victimized to the point of suicide by various forms of online harassment. Non-consensual pornography, now enhanced by the technology called “deepfakes,” enables individuals with limited technical skills and no morals to harass their victims across any distance. Job loss, destruction of relationships, PTSD, and physical assaults have all resulted from online harassment. It is long past time for the White House and Congress to jointly confront the fact that laissez-faire management by online providers has failed and that there is ample justification for dramatically rethinking the “neutral platform” narrative that has driven public policy to date. As scholar Mary Anne Franks, in her book Cult of the Constitution writes:

Extending liability beyond direct actors can be justified on both fairness and public policy grounds. First, it is only fair that people who benefit from the illicit actions of others should be held partly accountable for the harm they cause. Second, third-party liability creates incentives for powerful intermediaries to engage in proactive steps to discourage unlawful conduct before it happens, and to respond quickly and effectively when it does.

In case anyone is looking for a model of what bipartisan cooperation on cyber policy looks like, the IP Subcommittee of the Senate Judiciary Committee in its hearings on the Digital Millennium Copyright Act would be instructive. Like Section 230, DMCA Section 512 provides platforms with a specific type of liability shield, but because the subject of copyright enforcement is not so easily politicized along party lines, Chairman Tillis and Ranking Member Coons have been conducting the same conversation. Consequently, debate about the DMCA is driven by substantive policy discussion, as it should be, not by members of either party generating sound bites that have nothing to do with serving any citizen’s real interests.

While it may be naïve even to hope for bipartisanship in the near future, there can be no question that the ball is in the Republican leadership’s court. Either members of that party, acting in good faith, will lay down the weapons of misinformation and extraordinary divisiveness, or they will double-down on what we now call Trumpism, and America will remain in this murky, tense détente indefinitely. But as healing often begins with small steps, it seems reasonable to ask the government of 2021 to coalesce around the agenda implied by President-Elect Biden’s Online Task Force. The goal to limit the role of cyberspace in fostering harassment, incitement of violence, and mass shootings should not be the least bit controversial.