5 ms·

512(f) + evidence

by MWil 13y ago

512(f) + evidence

nitrogen 13y ago
I seem to recall reading that (1) the DMCA is not being used for YouTube takedowns (YouTube has its own takedown process that doesn't have a possible penalty of perjury), and (2) an automated process won't ever meet the bar for penalties under the DMCA. Obviously I'm not a lawyer, and I'd love to see someone turn the tide with a solid victory against a false DMCA or non-DMCA takedown. Corrections welcome.
- bo1024 13y ago
  I believe this is right.
- MWil 13y ago
  (1) yeah, that doesn't sound right to me. a DMCA takedown notice by any other name is still a DMCA takedown notice. the specifics that you might find in the statute are the floor (a minimum) so of course YouTube is free to develop their own takedown process that goes above and beyond but it doesn't mean it's somehow opted out of the copyright statutory scheme. (2) Never say never.
  - nitrogen 13y ago
    What I mean by (1) is that if you ask a mutual friend to display a picture I took in her gallery, I ask her politely to take it down, and she voluntarily complies with my request, the DMCA wasn't involved at all. This is how I understand the arrangement between YouTube and the 800lb copyright gorillas.
    - MWil 13y ago
      Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. So yes, when you go right to the source user, you are somewhat circumventing the DMCA process but imagine how inefficient that is in the most common cases. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. I guarantee YouTube, as a service provider, isn't NOT taking advantage of the DMCA safe harbors and claiming its notice and takedown procedures help to qualify it for such (perhaps even stronger than the default, perhaps not).
      - nitrogen 13y ago
        Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. By "gallery" I mean a physical art gallery, so she would be a service provider in my example. In the analogy, she would be YouTube, "I" would be a copyright holder, and "you" would be a YouTube user. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. The safe harbor, as I understand it, protects service providers from copyright holders and users, as long as the service providers register a copyright agent and comply with DMCA notices. Nobody's saying that YouTube doesn't have a registered agent and comply with DMCA notices. Further, there is almost certainly a point in YouTube's ToS that exempts them from liability for taking down content regardless of whether it was due to a DMCA notice. What I'm saying is that YouTube has an additional, private, voluntary takedown process, that doesn't invoke the DMCA at all (and thus no penalty of perjury for falsely claiming to represent the copyright holder). Having this additional process wouldn't jeopardize their safe harbor eligibility, as I understand it. I don't like this situation. It gives enormous power to large copyright holders, with significant collateral damage to independent creators like the Blender Foundation. I just don't see how a case made under 512(f) will turn the tide. ---------------- Maybe I'm misreading the DMCA as a layperson, but it looks like there are two penalties for false DMCA takedowns, neither of which would apply to a voluntary, non-DMCA takedown process: (1) perjury for falsely claiming to represent a copyright holder, and (2) liability under 512(f)(1) for "knowingly materially" misrepresenting a claim. Perjury for falsely claiming to represent a copyright holder comes from this section (apologies if my citation notation is incorrect): 501(c)(3)(A)(vi) 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. ---------------- Liability for damages for a "knowing material" misrepresentation comes from this section (emphasis mine): 512(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. I'm using http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512 as my reference.
  - aptwebapps 13y ago
    Caveat: Totally not a lawyer. No, it's really not a DMCA takedown notice. DMCA takedown notices are a mechanism whereby a hosting company can qualify for the safe harbor provision of the DMCA. If they comply with the rules of handling such notices they are not liable for any copyright violations of their users. Youtube will still comply with those, or face liability, but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice and is not subjected to the penalties of perjury that are laid out in the DMCA's rules about takedown notices. That doesn't mean that no law applies, just that the DMCA's specific rules for DMCA takedown notices don't apply. One question I would love an actual lawyer to answer or comment on is: Does Youtube's prevalence make them a common carrier or have similar implications?
    - MWil 13y ago
      Caveat: I am an actual lawyer, I'm just not providing any legal advice to anyone. "but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice" The first part of what you said is exactly who DMCA takedown systems are for so I'm not sure I see the "as such" logic. The DMCA takes the uploading user into account almost never, except when they become repeat offenders or "red flags" otherwise. It's sole purpose for existing is to appease content owners. You're intertwining "notice and takedown" with "safe harbor". They are two different sides of the coin. The former gives content owners power and the latter gives service providers a defense.
      - aptwebapps 13y ago
        Yeah, the "as such" was superfluous. And you're correct (if I may put words in your mouth) that the DMCA was drafted for (and by) content owners first, service providers second, and the public at large a distant third. What I thought, but I now have doubts about, was that because this takedown service that Youtube provides was in addition to compliance with regular DMCA takedown notices it would not be subject to the same rules. "You're intertwining "notice and takedown" with "safe harbor"." The point of the takedown system under the DMCA is that compliance with it guarantees (to some extent) safe harbor so I'm not sure how to separate the two.
- aptwebapps 13y ago
  What do you mean by 2)? I can't tell if you're saying that automated processes don't meet the bar for avoiding penalties or don't meet the bar to be penalized.
  - nitrogen 13y ago
    I mean that, as I recall reading, an automated takedown process doesn't meet the bar of "knowingly materially" misrepresenting a claim. "Knowingly materially" is the pair of adverbs used in 512(f) (http://www.law.cornell.edu/uscode/text/17/512#f http://www.law.cornell.edu/uscode/text/17/512#f), and if I recall correctly, is a very high threshold.
    - MWil 13y ago
      I'm really confused by your argument. Who designs and implements the automated takedown system? YouTube Who enters content into the automated system such that it becomes a claim of copyright infringement and a takedown request? The content owner You are saying that you recall reading that submitting content through something like YouTube's system will never meet the bar of "knowingly and materially" misrepresenting a claim? I doubt it. How about this scenario: Litigation reveals this email from the CEO - "Watch this guys, I totally don't own this clip and I know I don't own this clip but I'm going to submit it through Content ID anyway and get every hit taken down immediately"

512(f) + evidence

by MWil 13y ago

512(f) + evidence

I seem to recall reading that (1) the DMCA is not being used for YouTube takedowns (YouTube has its own takedown process that doesn't have a possible penalty of perjury), and (2) an automated process won't ever meet the bar for penalties under the DMCA. Obviously I'm not a lawyer, and I'd love to see someone turn the tide with a solid victory against a false DMCA or non-DMCA takedown. Corrections welcome.

bo1024 13y ago
I believe this is right.
MWil 13y ago
(1) yeah, that doesn't sound right to me. a DMCA takedown notice by any other name is still a DMCA takedown notice. the specifics that you might find in the statute are the floor (a minimum) so of course YouTube is free to develop their own takedown process that goes above and beyond but it doesn't mean it's somehow opted out of the copyright statutory scheme. (2) Never say never.
- nitrogen 13y ago
  What I mean by (1) is that if you ask a mutual friend to display a picture I took in her gallery, I ask her politely to take it down, and she voluntarily complies with my request, the DMCA wasn't involved at all. This is how I understand the arrangement between YouTube and the 800lb copyright gorillas.
  - MWil 13y ago
    Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. So yes, when you go right to the source user, you are somewhat circumventing the DMCA process but imagine how inefficient that is in the most common cases. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. I guarantee YouTube, as a service provider, isn't NOT taking advantage of the DMCA safe harbors and claiming its notice and takedown procedures help to qualify it for such (perhaps even stronger than the default, perhaps not).
    - nitrogen 13y ago
      Your example isn't really a good one because your friend isn't a service provider, she's an uploading user to a service provider. By "gallery" I mean a physical art gallery, so she would be a service provider in my example. In the analogy, she would be YouTube, "I" would be a copyright holder, and "you" would be a YouTube user. The point of implementing a proper DMCA notice and takedown system is to take advantage of the DMCA safe harbors. The safe harbor, as I understand it, protects service providers from copyright holders and users, as long as the service providers register a copyright agent and comply with DMCA notices. Nobody's saying that YouTube doesn't have a registered agent and comply with DMCA notices. Further, there is almost certainly a point in YouTube's ToS that exempts them from liability for taking down content regardless of whether it was due to a DMCA notice. What I'm saying is that YouTube has an additional, private, voluntary takedown process, that doesn't invoke the DMCA at all (and thus no penalty of perjury for falsely claiming to represent the copyright holder). Having this additional process wouldn't jeopardize their safe harbor eligibility, as I understand it. I don't like this situation. It gives enormous power to large copyright holders, with significant collateral damage to independent creators like the Blender Foundation. I just don't see how a case made under 512(f) will turn the tide. ---------------- Maybe I'm misreading the DMCA as a layperson, but it looks like there are two penalties for false DMCA takedowns, neither of which would apply to a voluntary, non-DMCA takedown process: (1) perjury for falsely claiming to represent a copyright holder, and (2) liability under 512(f)(1) for "knowingly materially" misrepresenting a claim. Perjury for falsely claiming to represent a copyright holder comes from this section (apologies if my citation notation is incorrect): 501(c)(3)(A)(vi) 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. ---------------- Liability for damages for a "knowing material" misrepresentation comes from this section (emphasis mine): 512(f) Misrepresentations.— Any person who knowingly materially misrepresents under this section— (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification, shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it. I'm using http://www.law.cornell.edu/uscode/text/17/512 http://www.law.cornell.edu/uscode/text/17/512 as my reference.
- aptwebapps 13y ago
  Caveat: Totally not a lawyer. No, it's really not a DMCA takedown notice. DMCA takedown notices are a mechanism whereby a hosting company can qualify for the safe harbor provision of the DMCA. If they comply with the rules of handling such notices they are not liable for any copyright violations of their users. Youtube will still comply with those, or face liability, but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice and is not subjected to the penalties of perjury that are laid out in the DMCA's rules about takedown notices. That doesn't mean that no law applies, just that the DMCA's specific rules for DMCA takedown notices don't apply. One question I would love an actual lawyer to answer or comment on is: Does Youtube's prevalence make them a common carrier or have similar implications?
  - MWil 13y ago
    Caveat: I am an actual lawyer, I'm just not providing any legal advice to anyone. "but they offer this tool to content owners that register with them. As such, it is not a DMCA takedown notice" The first part of what you said is exactly who DMCA takedown systems are for so I'm not sure I see the "as such" logic. The DMCA takes the uploading user into account almost never, except when they become repeat offenders or "red flags" otherwise. It's sole purpose for existing is to appease content owners. You're intertwining "notice and takedown" with "safe harbor". They are two different sides of the coin. The former gives content owners power and the latter gives service providers a defense.
    - aptwebapps 13y ago
      Yeah, the "as such" was superfluous. And you're correct (if I may put words in your mouth) that the DMCA was drafted for (and by) content owners first, service providers second, and the public at large a distant third. What I thought, but I now have doubts about, was that because this takedown service that Youtube provides was in addition to compliance with regular DMCA takedown notices it would not be subject to the same rules. "You're intertwining "notice and takedown" with "safe harbor"." The point of the takedown system under the DMCA is that compliance with it guarantees (to some extent) safe harbor so I'm not sure how to separate the two.
aptwebapps 13y ago
What do you mean by 2)? I can't tell if you're saying that automated processes don't meet the bar for avoiding penalties or don't meet the bar to be penalized.
- nitrogen 13y ago
  I mean that, as I recall reading, an automated takedown process doesn't meet the bar of "knowingly materially" misrepresenting a claim. "Knowingly materially" is the pair of adverbs used in 512(f) (http://www.law.cornell.edu/uscode/text/17/512#f http://www.law.cornell.edu/uscode/text/17/512#f), and if I recall correctly, is a very high threshold.
  - MWil 13y ago
    I'm really confused by your argument. Who designs and implements the automated takedown system? YouTube Who enters content into the automated system such that it becomes a claim of copyright infringement and a takedown request? The content owner You are saying that you recall reading that submitting content through something like YouTube's system will never meet the bar of "knowingly and materially" misrepresenting a claim? I doubt it. How about this scenario: Litigation reveals this email from the CEO - "Watch this guys, I totally don't own this clip and I know I don't own this clip but I'm going to submit it through Content ID anyway and get every hit taken down immediately"