4 ms·

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

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," [0] http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-in-long-running-dancing-baby-copyright-case/ http://arstechnica.com/tech-policy/2015/09/eff-scores-a-win-...

zyxley 11y ago
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.
- pdabbadabba 11y ago
  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.
  - DanBC 11y ago
    RIAA sent 100,000 takedown requests to a single website. It's unlikely a human did much scrutiny of that. http://arstechnica.com/tech-policy/2015/09/sharebeast-the-largest-us-based-filesharing-service-has-its-domain-seized/ http://arstechnica.com/tech-policy/2015/09/sharebeast-the-la... And there are sites that routinely get clearly bogus takedown requests. Google deleted 200million search results in 2013. https://torrentfreak.com/google-deleted-200-million-pirate-search-results-in-2013-131112/ https://torrentfreak.com/google-deleted-200-million-pirate-s...
- comex 11y ago
  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.”
  - Natsu 11y ago
    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.
unoti 11y ago
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.
- rtpg 11y ago
  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.
  - ascagnel_ 11y ago
    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.

zyxley 11y ago

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.

pdabbadabba 11y ago
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.
- DanBC 11y ago
  RIAA sent 100,000 takedown requests to a single website. It's unlikely a human did much scrutiny of that. http://arstechnica.com/tech-policy/2015/09/sharebeast-the-largest-us-based-filesharing-service-has-its-domain-seized/ http://arstechnica.com/tech-policy/2015/09/sharebeast-the-la... And there are sites that routinely get clearly bogus takedown requests. Google deleted 200million search results in 2013. https://torrentfreak.com/google-deleted-200-million-pirate-search-results-in-2013-131112/ https://torrentfreak.com/google-deleted-200-million-pirate-s...
comex 11y ago
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.”
- Natsu 11y ago
  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.

unoti 11y ago

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.

rtpg 11y ago
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.
- ascagnel_ 11y ago
  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.