Earlier this week, we learned about the latest in DMCA takedown notice scandals: Randy Queen using them to get posts about his work taken down from the Escher Girls tumblr. This is not how the DMCA is supposed to be used. And, in theory, it has mechanisms to prevent that. But they aren't winning the battle. Abusers are.
In cases like the Randy Queen/Escher Girls, the question becomes whether what happened is infringement and what the DMCA actually allows you to do. Let's start with the first one.
Copyright Law, Free Speech and Fair Use
Copyright Law Is Supposed to Incentivize Work, Not Stifle It
Copyright law, free speech, and fair use have to do a lot of work balancing a lot of competing interests. But, in theory, they're all supposed to be incentivizing the creation and dissemination of ideas. Copyright law gives creators certain exclusive rights to their works, so that they can benefit financially from them. The ability to make a living off of creative works is the incentivizing force there. These rights are limited in duration, which makes sense if you view the forward motion of creation as including building on what's existed before. Which the American Constitution does, given Article 1, Section 8, Clause 8:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
However, giving people exclusive rights over expression ends up running head long into free speech. In order to make sure that incentivizing and compensating creative works does not stifle the free exchange of ideas and opinions, we have fair use. Fair use is regarded by the law as a safety valve on copyright law, a way to vent the public's interests out of the confinement of copyright law's property interests. Fair use allows you to use copyrighted material without permission or payment for certain socially valuable purposes.
Fair Use Explicitly Protects Criticism or Commentary
Whether or not the purpose of a work falls under fair use can be a contentious issue, as it is when artists incorporate copyright works into a new work. However, there are certain areas that are indisputably protected. 17 USC § 107 is the law concerning fair use and it states:
The fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
Emphasis ours. So while the list isn't exhaustive, criticism and commentary are explicitly named as fair use. Just because you made a movie doesn't mean you can stop someone from using a clip of that movie in their review of it. It doesn't matter if a reviewer is influential enough to destroy the market for your work by a bad review. Free speech and fair use protect him or her.
Criticism and Commentary Cannot Be Stopped Just Because It's Negative
People have sometimes worried that a negative criticism isn't protected because it can affect the market. 17 USC § 107 also says:
In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
To be clear: That last factor means that the defendant's work can be used as a substitute for the original work, causing a loss in sales or licensing. It doesn't mean criticism or commentary. Escher Girls could have so powerfully critiqued Randy Queen that he was never able to sell a work again (which, hilariously, is more likely after this than it was before), and he still couldn't claim they affected the market.
In fact, cases involving commentary are more likely to come down on the side of fair use if the criticism is directly on the work being included. Regardless of how much was used or the commercial nature of the work. For example, the documentary Room 237 is about various theories about the hidden meanings in Stanley Kubrick's The Shining. It contains a lot of clips from the film — it almost feels like the whole thing — but clips are accompanied by people explaining what's in them that supports their theory. And it was definitely released commercially. But it's commentary, and fair use.
Into this established principle steps the Digital Millennium Copyright Act, which went into effect in 1998. There's actually a bunch of different parts to the DMCA, but the part that pertains to takedown notices is the "Online Copyright Infringement Liability Limitation Act," which is contained in 17 U.S.C. § 512.
Like fair use balances the interests of the public and copyright holders, the DMCA had the same problem. It's a compromise between the big media companies and the major Internet companies, allowing the latter to limit their liability in copyright infringement so long as there's a mechanism for the former to protect their property.
What It's Supposed to Look Like
Services like Youtube, tumblr, etc. are protected from liability provided that they are merely repositories for content uploaded by third party users. If it's their content or they employ some sort of filtering process that means they should be able to detect infringement, they can't take advantage of the safe harbor provided by the DMCA.
They're also required to have systems in place to deal with repeat offenders (like Youtube's three strikes policy), receive infringement complaints, and remove content accused of infringement — these are the infamous "takedown notices." Once a takedown has been received, the service provider has to respond "expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity." To limit liability, "expeditiously" is often close to "immediately."
Takedown notices can't just be someone sending an e-mail claiming that something belongs to them and has to be taken down. 17 U.S.C. § 512(c)(3)(A) lays out very specific requirements for the notice:
A physical or electronic signature of a person authorized to act on behalf of the copyright owner
- Identification of the copyrighted work claimed to have been infringed or representative list of multiple works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that they are asking to be taken down and information reasonably sufficient to permit the service provider to locate the material.
- Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
You'll notice that the requirement for saying a work is infringing is a "good faith belief." For people like Randy Queen, it's likely that he actually doesn't know about fair use and just thinks that any use of his work is infringement. However giant media companies don't have that excuse, but they'll send takedowns anyway. Warner Music Group did that exact thing in 2009, getting a bunch of fair use works removed.
There's also the fact that even though the requirements are clear, notifications can be substantially flawed. A 2005 study found that at least a third of notifications had major flaws, including 31% having issues with the underlying copyright claim. And some particularly bad examples can be found in the Electronic Frontier Foundation's Takedown Hall of Shame.
To the credit of the DMCA, there's a mechanism for fighting back against unjust claims. If your work is taken down, "reasonable steps" have to be taken to make sure you're promptly notified of that. And once you are notified, you can file a counterclaim, which forces the original notifier to either file a lawsuit or permit your work to be restored. Like takedowns, counter-notifications have requirements, too:
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
- The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of a Federal District Court and that the subscriber will accept service of process from the complaining party
Now, I said it was to the credit of the DMCA that there is a counter-claim provision. But it's not exactly evenly weighted. While all the notifier has to have is a "good faith" belief that the use is infringing, the counter-notification forces the user to swear under penalty of perjury that work wasn't infringing. The notifier only has that obligation for the fact that they are authorized to make the claim.
Second, filing a counter-notification requires users to agree to show up in court if the original notifier persists in the action. For a regular person without a lot of money, even if they're in the right, that's a big gamble. They are unlikely to have the resources to fight against a major corporation, even if they have the law on their side. It's safer to just give up and move on. But then they risk running afoul of the "repeat offenders" policy, since they didn't fight back. It's a Catch-22.
(To give the DMCA some credit again, under 17 U.S.C. § 512(f), knowingly misrepresenting either that a material is infringing or that it isn't has the same penalty.)
Third, there's no requirement that a company inform a user about the counter-notification policy. They might, but there's the never-ending problem that while major corporations obviously know about the notification rules, the average person isn't likely to run into information about counter-notifications on their own. And service providers are definitely more worried about being on the bad side of the big dogs, with all their resources, than its users. Tumblr, for example, has a form for notifications, but doesn't have one for counter-notifications. Google has both.
After Filing a Counter-Notification
If you decide to gamble on a counter-notification, the service provider has to contact the original notifier, give them a copy of the counter-notification and tell them that the work will be replaced in 10 business days unless they receive notice that an action has been filed with the court. If there's no suit filed within 10-14 days, the work must be put back up.
One of the most entertaining examples of this is the case of Professor Lawrence Lessig, the Harvard Law professor who co-founded Creative Commons and is an expert on law, technology, and copyright. Professor Lessig is probably the last person a media company should try strong-arm tactics with. In 2010, he delivered a speech at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song "Lisztomania" by the French band Phoenix. A video of the speech was uploaded to Youtube, Liberation Music filed a notification, Lessig filed a counter-notification, and Liberation Music sued. And then was forced to settle when Lessig asserted fair use in court. Needless to say, you can find the video on youtube today.
Of course Lawrence Lessig can fight this kind of thing. But there are resources for the less connected. The Electronic Frontier Foundation and Chilling Effects are excellent places to start. There are also intellectual property clinics at a number of law schools that can provide assistance. I was in one, and it was the highlight of my time in law school.
A Note About Defamation
One of the additional tidbits from the Escher Girls/Randy Queen mess was that he threatened the site with a defamation suit, which he seems to conflate with his "right to protect the perception of my IP as it exists today." It came after the takedown notices, so it may be a different tactic he pursued to stop Escher Girls from critiquing his art. However, searching "defamation" on Chilling Effects brought up 11,867 results. Defamation isn't something a DMCA takedown notice can be used for. The law concerns copyright infringement, not defamation. But defamation is another legal doctrine often brought out to silence criticism.
Defamation is a false statement that harms the reputation of the subject. In circumstances where the subject is either a public figure has to show that the statement was made with either knowledge of its falsity or reckless disregard for the truth. For limited purpose public figure, people who are well known in a particular issue, they have the same standard if the statement pertains to that issue.
But, circling back again to criticism or commentary, opinions generally aren't defamatory. They can be, but there has to be some underlying assertion of a fact. So long as the average person can't read a defamatory fact into your critique, it's not defamation. So, "I hate Bob because he commited perjury," is an opinion, but also includes a defamatory fact. But, "I hate the way that looks" is just an opinion.
But the bottom line is that defamation has nothing to do with the DMCA.
The DMCA takedown procedure is very easily manipulated. Like all things, it's weighed heavily in favor of those with the most resources, even if they're wrong. Or even if their notifications are flawed. The protections offered to those who are not infringing or are just taking advantage of fair use rely on those people knowing they have a recourse and being willing to gamble that the other side won't take them to court or, if they do, being able to win.
In the case of Escher Girls, Ami has been able to get help from a lawyer thanks to Ken from Popehat, which is wonderful. Everyone doing the valuable work of criticism and commentary should have the resources to properly respond to takedown notices and any other attempt to shut them down. The DMCA is not supposed to protect you from hearing criticism.
* Note: I'm not a lawyer. I have a law degree, but I'm not licensed to practice law. This is an overview of the law and its shortcomings, not legal advice.
Top image: Internet University by elontirien
Images: US Constitution by Kim Davies/flickr/CC BY-NC-ND 2.0; US Capitol by jackdean085/flickr/CC BY-NC-SA 2.0; 016/365 Corey Seeman/flickr/CC BY-NC-SA 2.0; Crumpled Frustration by Aaron Jacobs/flickr/CC BY-SA 2.0