DMCA Overreach: How a Little Used Provision Makes a Big Difference

Happy Friday everyone.  Recently, record label Liberation Music decided to issue a Digital Millennium Copyright Act (DMCA) takedown for a video posted by digital copyright guru Lawrence Lessig over the use of the song “Lisztomania” by Phoenix.  Lessig gave a lecture (entitled “Open”) that displayed different groups of people in a variety of countries dancing to the song, in order to make a point about how online culture allows different groups to comment on the same material.  Lessig, in tandem with the Electronic Frontier Foundation (EFF), decided to sue Liberation Music over the takedown.  Here is the complaint, for those so inclined.  Leaving aside how idiotic it is to sue a copyright expert for copyright infringement, this case provides an excellent opportunity for a plaintiff to successfully utilize section 512(f) of the DMCA.

Here’s a basic overview of the DMCA Notice and Takedown system.  The DMCA provides a limitation on liability for websites that host third-party content, even if that content infringes on another entity’s copyright.  As long as that website meets the requirements of 17 U.S.C. 512 (such as not having previous knowledge of infringement and moving quickly to correct the issue when so informed), they are not liable for copyright infringement committed by third parties on their network (referred to as a “safe harbor”).  A content owner finds something infringing, they send a letter asking Youtube to take it down (called a takedown notice), and Youtube takes it down if they think the content actually infringes on the other party’s copyright.

Theoretically, this system works fine for everyone involved.  Content owners gain an easy mechanism for dealing with infringement, sites that traffic heavily in user-generated content (UGC) have an enormous liability issue removed, and users get to use those websites.  Problems emerge in the execution.  Due to the desire to preserve their safe harbor status, UGC websites often err on the side of caution when dealing with takedown notices.   These sites remove content without further investigating whether it does indeed infringe.  Some sites (like Youtube) even automate their takedown procedures to automatically remove videos deemed infringing (in Youtube’s case, using software called ContentID that matches user submitted videos to clips provided by content holders).  Many of these sites (like Youtube) maintain an appeals process for when a user thinks their content was wrongfully taken down.  In Youtube’s case, this appeals process depends heavily on the content owner’s willingness to release the claim or unwillingness to file a formal notice.  Given the ease of issuing a formal DMCA takedown notice, uploaders possess very little leverage in this process.

What makes Lessig’s move interesting is that he and the EFF are attempting to utilize 512(f) of the DMCA, which allows an uploader to claim damages when a content owner files a bogus takedown notice.  512(f) requires that the content owner knowingly misrepresents either their ownership of the material or the infringing nature of the uploader’s content.  To this effect, Lessig claims that his use of Phoenix’s song constitutes fair use (which provides an exception to copyright infringement in the case of education, among many others) and that Liberation knew or should have known that Lessig’s use of the song represented a valid case of fair use.  Given that Lessig is a professor whose use of the song was in a lecture regarding his subject of expertise (copyright and the internet), Lessig’s argument for fair use is rather strong.  Education is one of the more straightforward fair use exceptions, and makes for a stronger argument that Liberation knew or should have known that their takedown order was bogus.  It should be interesting to see if the court agrees.

Unfortunately, Lessig’s position is not typical of individuals receiving overreaching takedown notices.  Most obviously, Lessig is a well known copyright expert with significant resources.  Not every individual uploading a video to Youtube has similar access to the legal knowledge, public stage, or money of a man like Lessig.  Also, 512(f) requires that the party sending the takedown notice knowingly misrepresented either their ownership of the copyright or that the material infringed.  In other words, the content owner has to know or should have known that their takedown notice was not valid.  Parties relying on fair use are going to have a hard time claiming that the other party meets this “knowing” standard, simply because fair use is a complicated exception evaluated on a case by case basis (I would go into more detail as to what constitutes fair use, but that’s at least another post’s worth of material).  With the exception of a few obvious situations (such as parodies, criticism, or education), the uploader will likely have a harder time claiming that the content holder knew or should have known that the uploader’s content met fair use requirements.  512(f) still potentially helps parties receiving a takedown notice where the entity sending the notice does not even own the material (which happens a lot more than you’d think), since knowing misrepresentation is a lot easier to prove in that case.

A successful court case for Lessig and the EFF would make people a lot more aware of 512(f), and their right to fight back against fraudulent takedown notices.  This court case will also provide the public with some well-known case law regarding how judges interpret 512(f), which in turn allows future content uploaders to know their rights and method of obtaining restitution beforehand.  It should be interesting to see the final result.

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