How will this work in practice? Will it actually hold them responsible for court fees if they file another bogus request like this, or will the only thing that comes out of this be a simple checkbox on the DMCA takedown form that says "I considered fair use before filing this takedown request"? Will this actually help defendants establish the prohibitively difficult "bad faith" request on behalf of IP holders?
EDIT: The Ars Technica article gives some time towards answering my concerns.[0] The short answer is, somewhat.
"A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to 512(f) liability,"
The biggest impact I could see this happening would be sinking auto-DMCA bots, since without a human in the loop there isn't any consideration of fair use at all.
Notably, the decision mentions automation in passing as a potentially acceptable method, but the example given is a program determining that two videos are almost identical, a very far cry from the standard used by such bots today:
> We note, without passing judgment, that the implementation of computer algorithms appears to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use. Cf. Hotfile, 2013 WL 6336286, at *47 (“The Court . . . is unaware of any decision to date that actually addressed the need for human review, and the statute does not specify how belief of infringement may be formed or what knowledge may be chargeable to the notifying entity.”). For example, consideration of fair use may be sufficient if copyright holders utilize computer programs that automatically identify for takedown notifications content where: “(1) the video track matches the video track of a copyrighted work submitted by a content owner; (2) the audio track matches the audio track of that same copyrighted work; and (3) nearly the entirety . . . is comprised of a single copyrighted work.”
This would seem to be rather weak, so at least they're saying this only as dicta. We've already seen cases where people use public domain content and then end up using such algorithms to claim the content away from other people, which would seem not to be covered by the above, though perhaps in that case they would say that they should have known of their lack of ownership before turning the bots loose.
And it would seem to spell trouble for the people who just grab the top X results for certain search keywords and then DMCA them without even looking at the sites.
At the very least, I would like to see them put the burden of proof on the person filing the DMCA takedown as to precisely where and how they formed their belief in good faith whenever the takedown is wrongly filed. It's not like anybody else is in a position to testify as to their state of mind and if they're truly responsible parties, they should have no trouble in accounting for what factors somehow mislead them. The courts can also request details on their accuracy: how many such notices have they filed, how many of those have been putback, etc. to decide whether or not they're actually behaving responsibly.
Naturally, I would presume that any party unwilling or incapable of providing such details was, by that very fact, irresponsible. Anyone not watching what they're doing is being careless.
We have to remember that bots are written by humans and in this case merely implement a business process. There is no reason that the owner of the bot can't store their own logs of what take down requests are sent and with which version of their bot and therefore (given a well written bot) this should give them an adequate log of the reasons behind the take down notice. It seems to me like this ruling will cause the required sophistication of bots to be greater rather than precluding their usage.
Every one of them is also, nominally, signed by a lawyer. There are words for lawyers that don't have records of the things they've signed and 'responsible' isn't among them.
Whilst I sort of agree with you (and also think that IP law is absolutely stupid in many respects at the moment). The shear number of potential infringers that the internet as a distributed publishing platform has created vs the number of people that can be employed creates a situation where automation is required. I don't see any reason why the legal process encapsulated by the bot can't be the thing that the lawyer signs off on and takes responsibility for.
EDIT:
Over here in the UK there is precedent that lawyers for e.g. speculative invoice cases involving copyright claims (also know as copyright trolling) can have their right to practise law revoked if the claims are found to be spurious. Maybe lawyers that evaluate DMCA takedown bots should face similar consequences if the bot is too heavy handed? This could create the correct incentive for them to ensure that obvious fair use is accounted for.
I can agree with that if they actually take responsibility for it. I'm just saying that running one with no logs and little oversight is inherently irresponsible behavior.
This is something I've been wondering about. Do we know the extent to which this process truly is entirely automated, and not so much as glanced over by an actual human? I would think that even a cursory human review of "infringements' flagged by a bot could satisfy the legal standard in this opinion, and would add little overall cost for the takedown mills.
In practice, until they change the law so that the service providers can determine fair use and discard the DMCA request in fair use cases, nothing will change much. Litigious people and organizations will file and file, and the service providers will have to take it down. If the service provider doesn't follow the process, they lose their safe harbor. And there's virtually no room for the service provider to exercise discretion-- they need to act on the DMCA's they receive, as long as all the required components are present.
but doesn't this ruling effectively change the process? If a DMCA request is explicitly saying "fair use was considered", but it wasn't, then this litigious organization will quickly find itself in front of a court and be shut down/forced to use humans.
I think there's a "good faith" aspect to DMCA requests that needs to be respected.
It's also worth remembering that some of the most common recipients of DMCA takedown requests don't actually deal with DMCA requests. For example, YouTube has Content ID, which doesn't actually trigger a true DMCA takedown until after the uploader has claimed they have the right to post the content in question. Content ID has long been weighted towards removing content; it's far easier to send an automated request versus trying to get a video reinstated.
I'll repost here what I said about my parallel (but apparently less popular) submission:
TL;DR - This is the [in]famous "dancing baby" case in which Universal Music issued a takedown request for a home video of a baby dancing to Prince's Let's Go Crazy. The notice resulted in the video being taken down and then, eventually, put back up after a flurry of DMCA counter-notices. The creator of the video, Lenz, then sued Universal Music for making a bad faith DMCA takedown request. (DMCA allows suits for "any damages" arising from a material misrepresentation in a DMCA takedown notice.)
The DMCA requires takedown notices to include a "good faith belief" statement that that the targeted work "is not authorized by the copyright owner, its agent, or the law." The opinion essentially holds that if you don't think about fair use, or if you know about a viable fair use defense, then this "good faith belief" statement is actionably false.
Note that this standard is quite high. If the copyright holder can show that it formed a subjective belief that the targeted work is not protected by fair use (even if that belief is pretty crazy), then it's not liable.
So, an interesting opinion, but it's pretty hard to see how a properly-represented defendant could lose under this legal standard. It may, however, limit the use of certain automated approaches to finding "infringing" content. While the opinion points out automated ways that a copyright holder could reasonably identify works that are not likely to be protected by fair use (such as where all of the audio and video perfectly matches the copyrighted work), human review will likely be necessary in many other situations, and these humans may be far more cautious than they used to be for fear of an eventual class-action lawsuit.
See my edited comment (I was just in the process of addressing this when you posted your question). Also see page 19 of the opinion which addresses exactly this issue.
It depends on where the item is posted. If it's your own video on your own bandwidth than possibly. But on Youtube, you still have to agree to the Youtube Terms of Service which probably includes a provision for takedown or re-monitization via automated means.
I find it amusing that this was in there: "Universal's claim that a victim of takedown abuse cannot vindicate her rights if she cannot show actual monetary loss". Almost assuredly Universal can't show actual monetary loss from the copyright infringement of the artist formerly known as the artist formerly known as Prince song, they shouldn't have tried to take it down by their own logic.
You've got it backwards. It's the author of the dancing baby video that has to show monetary loss. That is, Lenz cannot sue Universal unless she can show that taking down her video caused her monetary loss.
fryguy knows that, he's saying that it's hypocritical of Universal to argue against Lenz's case since she can't show actual damages while having previously issued a DMCA takedown notice even though they probably couldn't show actual damages.
This is a huge ruling for copyright holders because it'll make it much more difficult to use automated software to send out DMCA takedown notices.
That said, it's clearly the right answer. DMCA takedowns should be filed in good faith, a mental state requirement automated software cannot meet. Nobody said protecting your IP rights must be easy.
Unfortunately the popular sites like youtube have not-exactly-DMCA arrangements with large copyright holders, because otherwise they would (still) be indefinitely in court and spending millions upon millions (regardless of the merit of the cases).
> Nobody said protecting your IP rights must be easy.
Shouldn't it be at least easy enough to make the hilders' situation somewhat more symmetric with the scale of infringement that happens on the Internet? How is an industry of a few hundred thousand people (of which only hundreds probably man the DMCA stations, so to speak) supposed to cope with infringement by hundreds of millions of people?
The most obvious cases can still be handled by bots. The bots will have to be improved if good faith continues to be enforced as it has been in this case. Less clear cut stuff will need to either be allowed to slide or be vetted by a human as one part of the process. One could imagine that videos flagged as potentially infringing are queued by the system and people are paid to evaluate them according to a set of criteria that allow for fair use etc.
As you bring up the issue of asymmetry. I do agree with you that there is a numerical asymmetry between rights holders and the public. However, once a case progresses there is a financial and legal asymmetry in favour of the rights holders. The DMCA takedown system tends to exasperate this as it removes publishers liability completely if they comply with a DMCA in favour of the rights holders.
Basically intellectual property laws need some more common sense changes to bring balance so that everyone acting in good faith can feel safe and make a profit.
> In September 2007, Prince released statements that he intended to "reclaim his art on the internet."
Hey Prince, do us a favor and take it all away and keep it for yourself. If we can't film our babies dancing to music that we listen to with them, and share it with others, that's a world I don't want to live in. Better you just mosey on along by yourself.
Any ruling toward the original purpose of copyright, where it merely prevented large manufacturers from making a profit on others' copyrighted work, is a good thing.
> While governments and church encouraged printing in many ways, which allowed the dissemination of Bibles and government information, works of dissent and criticism could also circulate rapidly. As a consequence, governments established controls over printers across Europe, requiring them to have official licences to trade and produce books. The licenses typically gave printers the exclusive right to print particular works for a fixed period of years, and enabled the printer to prevent others from printing the same work during that period.
> As the "menace" of printing spread, governments established centralized control mechanisms, and in 1557 the English Crown thought to stem the flow of seditious and heretical books by chartering the Stationers' Company. The right to print was limited to the members of that guild, and thirty years later the Star Chamber was chartered to curtail the "greate enormities and abuses" of "dyvers contentyous and disorderlye persons professinge the arte or mystere of pryntinge or selling of books."
3) Copyright predates the ability for individuals to make millions of copies for essentially zero-cost, so some updating to the rules for the digital era makes sense.
Copyright has also been taken to its logical extreme in recent history, granting copyright terms that, in many cases, won't expire for 150 years or more from the date of publication, well beyond the lifespan of any human.
Copyright was supposed to be a compromise between the public and the rightsholder, where the public was willing to give up some of its natural right to copying and sharing in order to incentivize creativity. We've left all that in the dust now, and our copyright laws are currently based solely on scare tactics from massive media conglomerates.
IP reform is badly needed but I think we've still got a little ways to go before it seems so "common sense" that it occurs. Once the generation that grew up on Napster and its successors gets into their 50s, we might see some substantive change.
Unfortunately I've seen the opposite result so far. I've seen authors literally balk at the suggestion that they shouldn't have full control over their creations for perpetuity, and upon further digging, their point of view was that anything less is immoral, not just illegal.
> I've seen authors literally balk at the suggestion that they shouldn't have full control over their creations for perpetuity, and upon further digging, their point of view was that anything less is immoral, not just illegal.
Their opinion is biased, of course they think that; they're wrong, but they're free to think that. Intellectual property is unnatural, allowing people to claim to own ideas forever is absurd.
I think that's a really compelling viewpoint. Why should society have any rights to an artistic creation? I can have perpetual rights to some land that my ancestors (well not my ancestors since I'm an immigrant) stole from native Americans, which existed long before any human was alive, but somehow my right to something that I created that never existed before is subject to a social balancing? I don't buy it.
The primary reason is that material goods are of exclusionary use. If I'm farming an acre of land, you can't. You are no poorer if I sing a song you wrote than if I don't.
A lesser argument is from history:
Organized societies that consume resources faster than they are provided (so essentially all societies that aren't sparsely populated hunter-gatherers) need some form of restriction on use of exclusive goods such as land.
Organized societies have existed with essentially no restrictions on what we today call intellectual property. Some copyright is good, as we couldn't have 9 figure budget films without it, but if we were to restrict copyright to 40 or even 20 years, we would affect that not at all.
After typing all this out, I recognized your nick, so suppose that you know all of this; what is your counterpoint?
If the exclusionary nature of physical property was the rationale, then borrowing property when someone else wasn't using it, or analogous non-conflicting activities like squatting, it wouldn't be considered infringement of property rights.
Squatting would remain problematic because the owner of physical property would no longer be able to start and stop using their property as they pleased; they would have to wait for the squatter to vacate, and would be subjected to the sight of their property in use by a squatter (humans are territorial). As well, squatting often results in damage to the property. If these concerns could be addressed, why wouldn't squatting be okay?
The question isn't why should society have any rights to an artistic creation, but why should a producer of non-material products have the right to inflict government violence on a third party who is using that product.
The answer for material property is that the use of material goods is usually exclusionary: one person using it means another person not using it, and creating a protocol to govern use and enforced by a third party leads to less violence over it.
The same isn't true of intellectual property: as productivity growth took off in early modern societies, those societies that provided for intellectual property outcompeted those that didn't, as it provided an incentive to create a newly valuable good. But it's not trivial to say that "intellectual property forever!" is utility maximizing--there's a balance to be had between the public interest to incentivize the creation of new goods, and the public interest in lowering the cost of those goods.
Physical property rights are about things you can do. You have something, you get to keep it and do things with it.
Intellectual property rights are about things other people cannot do. If Alice wants to give Bob a copy of a book Eve wrote, she has to go out of her way to find and get permission from Eve or risk facing state violence.
That second one is unnatural (see also, positive vs negative rights). It is a deliberate state imposition, on the theory that society will end up better off as a whole. It's not a question of whether society "should" have rights, but of whether it's beneficial to interfere with the natural order of things.
> Physical property rights are about things you can do. You have something, you get to keep it and do things with it.
Physical property rights are definitely about what others cannot do. The state threatens violence to keep people from growing corn upon or even walking upon plots of land without license to do so.
Huh. I definitely have the feeling that the difference is more than just information being non-rivalrous, but yeah it can't be as simple as I was trying to think... .
Didn't absentee land ownership used to be looked down on? Maybe that ties in somehow.
Trespassing, there's https://en.wikipedia.org/wiki/Freedom_to_roam so it sounds like it's not nearly universal and at least in some places tied to liability concerns and (potentially) interfering with the owner's use of the property.
Maybe with IP it's that the owner/creator can't know unless they're told or actively go looking? But then that more-or-less gets back to non-rivalrousness.
Hm. Some information actually does have effects if known/used, like a successful stock trading algorithm. But then that's not "artistic", and brings to mind that IP is more than just patents and copyright.
The only advantage to allowing this form of land right ownership is that it facilitates a mostly market-based solution to the land-use distribution problem.
This can't be done with intellectual property, because it is often non-fungible. Sometimes an artistic work becomes very important to a culture, such that there's no suitable replacement.
Note: This doesn't necessarily make IP a bad thing. It actually doesn't say anything about it either way. The analogy to land, however, is not a useful one because of that difference.
Your land didn't depend on any other land in order to be created, for one thing. If you want perpetual copyright, go live on a deserted island and work without any outside influence.
Sure, creative works may be influenced by other creative works, but those are also protected by copyright and bought and paid for. I don't see how your argument justifies anyone else having rights to your creative works.
You don't pay for your language or your culture. You have them because you are a social being, and because your brain is built to absorb that information. You can't regulate exclusivity on it.
If you want perpetual exclusive rights to your creative works, then don't share them with anybody. Because you don't actually have a right to get paid. You have a right to participate in your society and its economy.
> I don't see how your argument justifies anyone else having rights to your creative works.
Considering that they are intangible, I think you'll have to justify your exclusive rights to your creative works and why the government should enforce them. Fortunately (in the US) the constitution has you covered, and notably does not root it in an abstract right of ownership but as a means toward "the progress of science and useful arts".
I agree that the rival nature of physical property tends to cut in favor of stronger protections for physical versus intangible property. On the other hand, given the moralistic undertone of "rights" I think it doesn't make sense to ignore the other distinction, which is that intangible property is much more the product of human will and effort than many kinds of tangible property, particularly land. I think that cuts the other way--in favor of stronger protections for created property than not-created property.
It would have physically existed (just as the artistic creation would have had a platonic existence), but it would have no economic value unless people could use other land to get to it, so it seems the two are the same in this respect.
> I think that's a really compelling viewpoint. Why should society have any rights to an artistic creation?
To the original, they don't. To a copy of it, made by someone else, why should the artist have any say over what other people do? If they don't want to be copied, don't put stuff out there.
> why should the artist have any say over what other people do?
Because amongst other things, an artist might want to control what their works are associated with and how they are displayed (known as moral rights in some copyright laws, not sure it applies to the US).
For example, assume an artist makes a song; they get to say if it can be used to advertise things they don't approve of or if it gets remixed into something else. It means that writers get protection against a publisher just taking their manuscript and doing s/Harry Potter/Terry Totter/, claiming it as an original work and selling it with a larger advertising budget than the original author. It prevents someone from taking your pictures or other original works and selling them as postcards , T-shirts and coffee mugs without your consent.
> Because amongst other things, an artist might want to control what their works are associated with and how they are displayed (known as moral rights in some copyright laws, not sure it applies to the US).
The issue here isn't what the artist wants. The issue is whether we as a society should allow the artist to control an expression of an idea, and if so, for how long. What society wants is more important than what an artist wants and intellectual property is a made up figment of societies imagination. Words are not actually property, my copying those words doesn't steal yours. My using the same sequence of some part of your song shouldn't entitle you a right to say no, I own that phrase and if it does, we are all harmed by said restrictions. Information is not property in that sense and should not be.
Intellectual property rights are harmful to society if not kept in strict check. It is now virtually impossible to write a computer program without violating someone's IP even though you've never seen it. That means we've gone too far in allowing people to own ideas.
> Why should society have any rights to an artistic creation?
Because artists prefer to get paid. "Society" is the one paying the artist, so it should get something in return. And how much "society" is willing to pay depends on how much it gets in return. For example, "I" am willing to pay exactly zero for digital content that is still subject to license enforcement after purchase, but I'm willing to pay 40 euro for a one-time live performance.
Sure, an artist can retain all rights to their artistic creation if they store the creation in their own basement. They can even leave it to their heirs in a will.
> I think that's a really compelling viewpoint. Why should society have any rights to an artistic creation?
To the original, they don't. To a copy of it, made by someone else, why should the artist have any say over what other people do? If they don't want to be copied, don't put stuff out there. Just because you string a few words together, an intangible idea, it shouldn't give you some natural right to forbid other people from using those words in that same order.
...somehow my right to something that I created that never existed before is subject to a social balancing?
You already know that the answer to this is that once you've shared your creation with others, it's no longer yours. The copy that resides in their brains belongs to them. You cannot, without the artifice of copyright, claim ownership of pieces of others' brains, or what they later assemble from those pieces.
How do you propose pricing the influence of existing copyrighted works on new works, without burdening artists to the point that human culture grinds to a halt?
Also, you pay tax on land you own, you use public roads to get to work, walk on public sidewalks, use public parks, etc.
As to how this will affect YouTube and the like, I don't think it will. YouTube's process is not actually DMCA, it's a separate but similar entity following YouTube's own rules and policies. That's why YouTube's system is rife with abuse with no real recourse for content creators whose works are unfairly flagged.
I don't think this is correct. This very case is about a video hosted on YouTube. The DMCA requires YouTube to have a takedown process that complies with the DMCA's rules in order to avoid liability for hosting infringing content. And YouTube likely cannot exculpate copyright holders from liability for making misrepresentations in their takedown requests since that liability is explicitly created by statute.
Yes, YouTube needs to honor DMCA takedown requests, but that doesn't stop YouTube from creating another YouTube-specific kind of request that people can make if they want to make some money off their content that other people have uploaded. That's what YouTube has done with Content ID. See https://support.google.com/youtube/answer/6013276
> This very case is about a video hosted on YouTube.
Fair enough. But I think this raises an interesting, and possibly challenging legal question: is a takedown request (including the standing requests that that content id allows) a "notification of claimed infringement" under the DMCA even if YouTube calls it something different? I could see this going either way if it were tested in court (maybe it already has been--I don't know). But if I were YouTube, I would try to keep my content ID procedures in line with the DMCA procedures voluntarily so that I wouldn't have to find out the hard way. The terminology and general procedure that YouTube uses for content ID roughly parallel the process set out in the DMCA, so I'm inclined to think that YouTube is thinking the same thing.
I expect that someone in YouTube's legal department already has a memo someplace discussing the implications of this ruling for content ID that addresses these very issues.
What effect, if any, does this have on musicians complaining about the use of their work by issue advocates, e.g., the group Survivor complaining about the use of "Eye of the Tiger" by Mike Huckabee at the Kim Davis support rally?
I think none, since those performances are not subject to the DMCA takedown procedures at issue here.
It could affect videos of those rallies posted online, but only in that the artists will have to form a good-faith (though possibly inaccurate) belief that these performances are not fair uses before sending takedown notices.
From my understanding, as long as the venue in which those songs are being broadcasted over loud speakers pay the ASCAP/BMI collection society fees, the only recourse the artists like Survivor or R.E.M. have is to publicly decry their affiliation. I mean, they can sue, but I highly doubt they'd win. It would be an interesting case to see the angles taken though.
Now, using one of the songs in a commercial, that's a different beast all together (re: sync rights). Beastie Boys are 2 for 2 in defending their sync rights in the past 5 years or so (GoldiBlox & Monster Energy).
IANAL; but I don't think this affects that at all -- it would affect people hosting a video taken of that rally that included the song in the background, but the Survivor lawsuit is about Huckabee/Davis's use of the song in the rally.
The primary problem is that nobody is looking for a win-win solution. Content ID was built as a copyrights enforcing tool and copyright holders scorned by the Napster, Kazaa, etc. experiences don't see any other way but take down.
There are many other ways how to not harm the user and also be compensated. For instance put a link to the original song where people can buy/listen to it if they are interested.
It's not only the law but the common sense that has to change towards copyrights and its enforcement.
Sadly, companies have no incentives to play nice and go for win-win. It's a kind of asymmetric prisoner's dilemma, when one party can intimidate another into cooperating, therefore being free to defect and take the bigger payout.
EDIT: The Ars Technica article gives some time towards answering my concerns.[0] The short answer is, somewhat.
"A copyright holder who pays lip service to the consideration of fair use by claiming it formed a good faith belief when there is evidence to the contrary is still subject to 512(f) liability,"
[0] http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-...