New England Biz Law Update
Brooklyn Law School professor Wendy Seltzer wanted to teach her copyright class a lesson by showing them what a copyright notice looks like.
So she posted a 30-second clip from the 2007 Super Bowl containing the National Football League’s copyright notice, as the game returned from a commercial break.
But she was the one in for a lesson.
Just a few days later, Seltzer’s video was removed from YouTube based on the Digital Millennium Copyright Act, after the NFL claimed that her clip violated its copyright.
The spat is one of several recent examples of copyright owners flexing their online legal muscles by sending questionable “takedown” notices under §512(c) of the Act.
When faced with a takedown notice, web hosts immediately remove the potentially infringing material, explained Internet lawyer John Ottaviani, a partner at Edwards Angell Palmer & Dodge in Providence, R.I., or face a contributory infringement suit of their own.
“Most sites will automatically take down anything as a risk-mitigation policy,” he explained.
But experts and free speech advocates are fighting back against what they say is abuse of the system.
The intent of the Act’s takedown provision was to create a safe harbor for web hosts and ISPs, but the current procedure of allowing copyright holders a presumptive takedown gives them too much power, Seltzer said.
The current system “really invites abuse, and I would like to see stronger obligations placed on copyright holders to verify whether something is infringing, as well as stronger penalties against them if something isn’t infringing but they claim it is,” she said.
John Dozier, a partner at Dozier Internet Law in Glen Allen, Va., said the current system is easily abused. He estimated he has worked on hundreds of cases involving takedown notices, and about half are improper.
Check #1: Counter-notice
The DMCA contains two checks on the power of copyright holders, explained Corynne McSherry, staff attorney at the Electronic Frontier Foundation in San Francisco, an organization dedicated to digital rights.
The first option is for the poster of the allegedly infringing material to send a counter-notification to the web host, saying the material is non-infringing and should be put back up. The notice is passed on to the copyright holder, and if the holder doesn’t take any further action, the material is re-posted 10 to 14 days later.
Seltzer used the counter-notice provision after she received her takedown notice from the NFL, explaining to YouTube that her clip was fair use because it was for educational purposes.
YouTube agreed and put the clip back online.
But the NFL then sent a second takedown notice – and YouTube removed the video for a second time.
“It’s been a fascinating experience,” Seltzer said, noting the video is currently online. “I was surprised the NFL continued to assert a copyright in a tiny clip of football in which infringement never occurs.”
But NFL spokesperson Brian McCarthy said infringement did occur. Had the clip lasted just 10 seconds, the duration of the copyright notice, the league wouldn’t have a problem with Seltzer’s video, he explained.
Instead, it’s the “roughly 23 seconds after that, showing actual game footage of the Super Bowl that we have a problem with,” he said. “Any game footage is property of the NFL.”
The dispute highlights the back-and-forth involved in the notice and counter-notice procedure, as well as some of the legal uncertainties in the DMCA.
Dozier said the statute’s time frame – requiring a web host to put the content back online in 10 business days – is unclear. Most ISPs will wait a full 10 days before they re-post material, which isn’t explicitly required under the Act, he noted.
And even being removed for 10 days has a chilling effect, McSherry argued. “In ‘Internet time,’ 10 to 14 days is a very long period of time,” she said. “It’s easy to imagine a fair use parody that is overtly political and directed toward an upcoming election, that if it was taken off the air for the two weeks prior to the election could have a real detrimental affect.”
Check #2: Lawsuit
Another, more rarely used check on the power of content holders is §512(f) of the Act, which allows an alleged infringer to sue a content holder for abusing the takedown notice system.
Section 512(f) of the DMCA provides for damages, costs and attorney fees when a person “knowingly materially misrepresents” that “material or activity is infringing” or that “material or activity was removed or disabled by mistake or misidentification” under the Act.
Seltzer believes the NFL’s second takedown notice violated this section, although she has not filed suit against the organization. If the NFL sends a third notice, she plans to sue.
But one organization recently did file suit.
MoveOn.org, a political organization, created a video spoofing Comedy Central’s Stephen Colbert. Colbert, star of the channel’s “Colbert Report,” coined the term “truthiness” to describe his (tongue-in-cheek) approach to journalism. The video, purporting to urge viewers to sign a petition against Colbert, was called “Stop the Falsiness” and included clips of Colbert’s show.
Viacom, the parent company of Comedy Central, sent a takedown notice to YouTube, where the video was posted, claiming the use of clips from the show infringed its copyright. YouTube removed the video.
MoveOn, which is represented by the Electronic Frontier Foundation, sued Viacom. MoveOn argued that because the video was clearly a parody, the clips were fair use and the takedown notice was sent in violation of §512(f).
Viacom subsequently acknowledged the takedown notice was sent in error, prompting MoveOn to dismiss the lawsuit.
The company also pledged to establish the manual review of every video that might be a potential takedown target, as well as to create a website and e-mail address with a one business day turnaround for those who believe their content was removed in error.
These changes “are really the way forward, and I hope that other content holders will adopt similar best practices,” McSherry said.
Few defendants have been found liable under §512(f). The Electronic Frontier Foundation won the first case in 2004 when a federal court in California ruled the electronic security company Diebold violated the provision by claiming it had copyright protection in company e-mails. (Online Policy Group v. Diebold, 337 F.Supp.2d 1195 (N.D. Cal.) The e-mails were exchanges between Diebold employees acknowledging problems associated with the company’s electronic voting machines, and critics of the machines posted the e-mail records.
But the limited amount of §512(f) case law is “testimony to the fact that people really don’t know their rights,” McSherry said.
“Most people aren’t sure what their options are, or what the consequences of sending a counter-notice might be,” she added. “Being on the receiving end of a takedown notice can really chill potentially non-infringing speech.”
Can it be improved?
The current problems with the DMCA may get worse before they get better.
Internet hosts – particularly educational institutions – are “swamped” by notices that place a “significant burden” on service providers, according to a recent study by the Fair Use Network in conjunction with the Brennan Center for Justice at NYU Law School.
And “the situation for users is grim,” with limited knowledge about how to deal with a takedown notice, the report concluded. (You can read or print the full text of the study in the “Important Documents” section of our website, www.newenglandbizlawupdate.com.)
McSherry predicted change will come only if §512(f) is given teeth, causing content holders to hesitate before sending takedown notices.
The statute could also be strengthened by placing greater obligations on content holders to verify material really infringes upon their copyright – and stronger penalties if those claims prove to be false, Seltzer said.
“Instead of requiring a material misrepresentation, content holders should be liable even for an accidental wrong that caused people harm,” she said.
Dozier suggested the abuse of takedown notices could be limited by requiring a §512(c) affidavit be filed by an attorney. “If copyright lawyers can disagree about what infringement is, then how can a non-lawyer be in a position to assess and affirm under oath that someone else’s content is infringing their work?” he asked.
