copyright law

Thoughts on the DMCA Reform Draft Proposal

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The DMCA is one of the most significant laws on the Internet, as it is the de-facto standard process which governs the removal of content which allegedly infringes on copyright. That might sound mind-numbingly boring, but it’s a topic which has increasingly come into the cultural spotlight, as automated takedown mechanisms have impacted folks on Twitch, YouTube, etc – for a whole variety of arguably spurious reasons.

It’s no secret that the DMCA has significant problems (it’s a topic I’ve written about at length) – and there has been an ongoing review of the statute to try bring it up to date. Earlier this year we saw the US Copyright Office publish their recommendations on the future for the DMCA, and just this last week, a draft proposal for change was put forward for comments by Senator Tillis. The full thing is pretty long and complicated, especially if you aren’t familiar with the statute, but the accompanying summary doesn’t really give a full picture of the changes.

I’ve had a look through the proposals (specifically in relation to the notice and takedown process), and noted some specific areas of interest below. Note that this is nowhere near exhaustive, and based on first impressions. Caveat Emptor.

  1. s.512(b) – Qualifications added to the notice requirements. Here we see a bunch of different language added to the section detailing the requirements of a notice. This in of itself is not a bad thing, but the changes here make the statute much more difficult to both interpret and apply. The law is already vague and unclear in a number of areas, and this makes that worse. See s.512(b)(1)(C)(i)-(ii) specifically.
  2. s.512(a)(2)(C)(ii) – Notice and Stay Down. This section introduces a requirement that material which is the subject of a DMCA takedown ‘stays down’ when a ‘complete or near complete copy’ is identified. In essence, this means that platforms will have to implement some kind of filtering technology to ensure that content is not re-uploaded. This comes despite the warnings from the USCO and others that this approach (following the European Copyright Directive) would be problematic (to say the least). It also isn’t clear at all whether this would apply retrospectively to content which has already been uploaded, or what a ‘near complete copy’ would entail. Again, this opens up issues of interpretation around the threshold for removal, and platforms would inevitably need to err on the side of caution to avoid liability. The impact of this would be that far more content would be taken down than users would expect. It also doesn’t address the question of fair use, in any way. In other words… not all unauthorised uses of copyrighted material constitute infringement (or where they do, there can be a fair use rebuttal).
  3. s.512(b)(1)(E) – Good Faith Belief now subjective. The requirement for the copyright holder to make a statement that they have a good faith belief that the material is not authorised for use […] has been updated to include a ‘subjective’ qualifier. This will make it much more difficult for any claims to be brought against those who submit bogus takedown notices on the basis of their good faith statement. This directly relates to the hard-fought concession in the Dancing Baby case (Lenz v. Universal).
  4. s.512(b)(5) – Anonymous Notices. This section allows for complainants to have their personal information redacted from notices, based on as-of-yet non-existent guidance from the Register of Copyrights. On the face of it this seems sensible. However, the DMCA already allows various ways for complainants to remain largely anonymous, or to have their details protected – something which is not afforded to users when submitting counter notices. Complainants can simply provide an e-mail address as the minimum contact information required, or submit through a third party agent. There is no similar provision or update given for counter notices. This is something which we have seen abused by abusive complainants to gain information on those who are critical of them.
  5. Counter Notification Challenges – Again on counter notices, this section essentially gives the complainant the final right to reply on the statutory process, before resorting to legal action. In other words, if a counter notice is submitted, complainants would be able to challenge this within the statute, and not have to show evidence that they have pursued the matter in court (as they do under the current provisions). This adds another step to the ‘complicated game of tennis’ which is the back-and-forth of the notice and takedown system, and one which benefits the complainants massively. The burden of proof is essentially reversed, and means that any users who have the right to use material will be forced to take legal action to show that the material was wrongfully removed – rather than the rights holders taking action against the infringement.
  6. s.512(f)(2) – List of Abusive Complainants – This is the one positive from the list of changes. Essentially, this updates the penalties section of the DMCA to allow for those that consistently send invalid notices to be placed on a list which would allow service providers to disregard these notices for a set period of time. However, there are no real details about what the threshold for abuse would be, or about what the appeal process (if any) would be if someone was included on this list. Without these details, one suspects that the threshold would be set so high, and be subject to so much legal challenge, that it would in effect be worthless.

General Thoughts

This draft proposal is disappointing (at least with regards to the notice and takedown provisions), as it seems to ignore many of the key issues that have been consistently raised about the DMCA. Rather than correcting the imbalances that exist, the proposed changes further strengthen and entrench the position of rights holders, as well as the statute’s utility as a powerful unilateral censorship tool.

The provisions relating to counter notification are particularly troubling, as the data collected over the 20-odd year life-span of the DMCA shows that the number of counter notices which are actually filed is miniscule. There are already so many barriers and disincentives for people to challenge takedown notices (on valid grounds) that adding in more hurdles seems to be completely at odds with all of the established literature on the topic.

Despite its many flaws and criticisms, the DMCA has become a system which at least provided consistent results. These proposals bring some of the worst parts of the statute, and combine them with the very worst parts of the European Copyright Directive to give far greater takedown powers to rights holders, with seemingly no consideration of users, or the cultural importance of online expression.

This is just a draft proposal, and open for stakeholder comments. If we are going to avoid a similar disaster to the approach taken in Europe, major changes need to be made.

Open letter to MEPs: Article 13 of the Copyright Directive

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The latest threat to both freedom of expression and the neutrality of the Internet is the proposed European ‘Copyright Directive’, and in particular, Article 13.

Much has been written on the dangers of Article 13, so I won’t repeat it here. Needless to say, if implemented, there would be serious consequences for how we interact online. It would be far easier for people to have content taken down from the Internet, or to prevent you from posting certain things, even if they have no real legal justification for doing so. In other words, you’d better get used to seeing this:

Facebook Link Blocked

You can (and should) write to your MEP to express concerns about the upcoming law. You can do so using sites such as saveyourinternet.eu, but I didn’t think their template letter or MEP search was particularly good, so I wrote my own. Feel free to modify and use the below language. You can find and contact your MEPs using https://www.writetothem.com/.

Attn:

  • David Martin MEP
  • David Coburn MEP
  • Catherine Stihler MEP
  • Nosheena Mobarik MEP
  • Ian Hudghton MEP
  • Alyn Smith MEP

Thursday 21 June 2018

Stephen McLeod Blythe
[address redacted]

Dear Catherine Stihler, Alyn Smith, Ian Hudghton, Nosheena Mobarik, David Martin and David Coburn,

I am a legal academic and digital rights advocate from Glasgow, Scotland. I write with respect to the so-called ‘Copyright Directive’, and ask that you stand up against the proposal.

My main area of concern regarding the proposed Directive lies in Article 13. While it does not specifically impose a requirement on intermediaries to introduce pre-screening mechanisms, the language does explicitly refer to ‘the use of effective content recognition technologies’. As a result, this approach is clearly seen as an appropriate norm.

There are many problems with content recognition technologies, which I will not waste your time with by reciting in full. However, the bottom line is that they are expensive to implement; ineffective; easily defeated; frequently mis-identify content; and do not understand context, or the concept of ‘fair use’. In my work I already see significant abuse of copyright laws by complainants who wish to silence critics, and any kind of automated system will simply compound this problem.

Should Article 13 go ahead unchanged, intermediaries will inevitably adopt ‘dumb’ filtering systems in order to reduce their liability, and the result will be a significant chilling effect on both freedom of expression, and free enterprise. The consequences will impact heavily both on individual rights, and the economy.

Yours sincerely,

Stephen McLeod Blythe LLB. LLM.

How to Submit (Valid) DMCA Takedown Notices

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So you’ve discovered that a website is using something you’ve created without permission, and you want them to stop. The quickest route to make this happen is to submit a ‘DMCA takedown notice’, though the process itself can seem daunting if you’re not familiar with the language involved.

In short: The Digital Millennium Copyright Act, or ‘DMCA’ is a piece of American law that provides a mechanism for copyright holders to have allegedly infringing material taken down speedily from the Internet without having to resort to legal action – whilst also protecting the online service providers from liability for the actions of their users.

Should you wish to follow up on the unauthorised use of your works online, this guide will give an idea of what’s involved, and how to submit a formally valid notice. Having seen thousands of these takedown notices as part of my job, I know a fair bit about the quirks that are involved.

Things to Consider

Before submitting a DMCA takedown notice, there are some general things to bear in mind:

  • The DMCA is American law. As a result, online service providers located outside of the US are not bound by its contents. There are similar provisions enacted in different jurisdictions, but generally the DMCA is seen as the industry standard. It is often the case that hosts will comply with valid takedown notices even if they technically are not required to by their local laws, but don’t expect bank on this.
  • Takedown notices do not prevent the spread of the material. Just because you manage to get something removed from one host, doesn’t mean that it won’t pop up again somewhere else – much like the ‘whac-a-mole’ game you see in American films. Sometimes giving attention to one instance of infringement can lead to a multiplication of the problem, rather than a solution. As a result, you need to question whether taking action will be worthwhile, or whether sleeping lions are best left undisturbed. This is relevant.
  • Not every use of copyrighted material is actionable. People are entitled to use copyrighted material without permission in certain circumstances, such as for the purpose of research, criticism, education, or news reporting; known as the ‘fair use’ doctrine. You have an obligation to consider this possibility before submitting a takedown notice for the use of content in which you hold a copyright interest.

The Takedown Notice

The DMCA takedown notice itself isn’t very complicated, but it does require a number of specific elements in order to be considered formally valid. It’s amazing how often people screw this up.

They are:

  • A signature from the copyright holder, or somebody who they have authorised to act on their behalf. This can either be a physical, or electronic signature.
  • An identification of the material that is being used without permission. In other words, what photograph, text, or other content is it?
  • An identification of where the infringing material is located. Where exactly is the content being used without permission? Include a direct link to the page where it exists, and be careful not to include dynamic URLs, as this can delay the process.
  • Details to allow the service provider to contact the complainant, such as address, telephone number, or e-mail address.
  • A ‘good faith belief’ that the material’s use is not authorised by the copyright owner, agent, or the law.
  • A statement that the notice is ‘accurate, and under penalty of perjury, that the complaining party is authorised to act on behalf of’ the copyright holder.

That’s all. There are various examples available on the web that add in a whole lot of extraneous information about the obligations of service providers and so forth, but legally this is not required. Whilst some smaller hosts may be intimidated this approach, the extra verbiage more often than not can seem as if the complainant is clutching at straws in a desperate bid to have material taken offline.

Some things that are worth noting:

  • You can have somebody submit the DMCA takedown notice on your behalf, if you would rather.
  • The signature must be of a person. This sounds obvious but in other words, you can’t sign your company name – it must be either yours or the third party acting as your agent for the submission.
  • Though some service providers specifically ask for it, the DMCA does not require you to provide all of your contact details. As a general rule, I would only supply the minimum necessary, and avoid giving up personal phone numbers and addresses This is particularly true as a copy of the notice can often then forwarded on to the user who published the material in the first place (depending on the policies of the host in question). An e-mail address should suffice.
  • If you do not want to supply your own details, the DMCA allows for you to submit a takedown notification through a third party agent, acting on your behalf.

A sample DMCA takedown notice is as follows:

Subject: DMCA Takedown Notification

To whom it may concern,

This e-mail is notification under USC 17 §512, the Digital Millennium Copyright Act (DMCA), of instances of copyright infringement operating on site(s) under your control.

The copyrighted work at issue is as follows:

** INSERT DESCRIPTION OF COPYRIGHTED WORK **

The unauthorized, and infringing copy is available the following URL(s):

** INSERT URLs WHERE THE COPYRIGHTED WORK CAN BE FOUND **

I have a good faith belief that use of the copyrighted materials described above as allegedly infringing is not authorized by the copyright owner, its agent, or the law.

I swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

I demand that you expeditiously remove or disable access to the material in question.

I may be contacted on:

** NAME **
** ADDRESS **
** TELEPHONE NUMBER **
** E-Mail Address **

The following should be considered my electronic signature for the purposes of §512(c)(i):

** TYPE OUT FULL LEGAL NAME **

This can be downloaded over on Github.

PROTIP:

  • Don’t submit these DMCAs by post, or in PDF format. Unless you want to be really, really annoying (which you might!), this will only serve to slow down the actual process of getting your material removed, which should really be the priority.

The Process – What Happens Now?

Once you have submitted a valid DMCA takedown notice, the process is as follows:

  • The online service provider must act ‘expeditiously’ to ‘remove or disable access to’ the material that you have identified as infringing upon your copyrights.
  • The user who published the material has the option to submit a counter notice, asserting their right to legally use the material. At this point you will be notified, and if you do not give notification of beginning legal proceedings, the content in question will be restored between 10 and 14 days after the submission of the counter notice.

So there are a number of possibilities for what could happen:

  • Nothing. The service provider ignores your takedown notice, which can happen for a variety of reasons (such as their location outside of the US). At this point you are left with little option but to undertake legal action to have the material removed.
  • The material is removed by the service provider, and stays offline. The best possible outcome.
  • The material is removed by the service provider, but a counter notice is received shortly thereafter, leading to it being restored within the 10-14 day window unless you pursue legal action.

NB: This is not to be taken as legal advice.

Hyperlinks, Copyright Infringement, and the DMCA

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Hyperlinks are a fundamental part of the core fabric of the web. As the basic tool used to connect pieces of information together, it’s difficult to imagine how the Internet could function without them. 

Despite its critical nature, the role of hyperlinks has attracted the attention of those seeking to prevent particular kinds of information from being shared. One of the prime examples relates to copyright, and efforts to disrupt the dissemination of materials without authorisation. As part of this, the delivery mechanism of the hyperlink – as well as the infringing act itself – has come under fire.

Hyperlinks and Case Law

There is not a sizeable wealth of case law available that directly relates to the question of whether a hyperlink can constitute copyright infringement. As a result, discussions concerning potential liability often draw upon analogies taken from older cases – sometimes with judgements over a century old – in order to apply established legal principles to the uncertainties thrown up by technological evolution.

In the case of Hird v. Wood from 1984, the defendant was seated near to a sign on which defamatory messages were displayed. Despite not having created the sign, it was held that he incurred liability simply through the act of drawing attention to it. In the later case of Byrne v. Dean, Hird was referenced, the judge noting the following:

If defamatory matter is left on the wall of [a] premises by a person who has the power to remove the defamatory matter from the wall he can be said to have published the defamatory matter to the persons who read it.

Applied to our topic, it would appear that this principle would impose an obligation on the operators of websites (as well as their hosts) to remove hyperlinks that led to illegal material.

The Supreme Court in Crookes v. Newton did not completely accept the above analogy. Instead, they found the argument put forward by the respondent to be more persuasive: a comparison between hyperlinks and footnotes. In other words, both are ‘content neutral’, communicating the existence of something, but not necessarily commenting on the content. This view is one also supported by Tim Berners-Lee, credited with the creation of the World Wide Web:

The intention […] was that normal links should simply be references, with no implied meaning.

However, the court also recognised that the Internet is ‘a potentially powerful vehicle’ for defamation, and that the context itself was important in establishing possible liability. In the words of the court:

Individuals may attract liability for hyperlinking if the manner in which they have referred to content conveys defamatory meaning.

Analogy is one instrument that can be used when considering the relationship between the use of hyperlinks and the law; powerful, albeit imprecise. The issues involved in real life situations are more complex than can be addressed by analogy alone, and courts have often taken differing approaches in making their determinations.

One of the first cases to directly challenge the legality of the use of hyperlinks, and their potential to constitute an infringement of copyright concerned their use on the website of a Scottish newspaper named the ‘Shetland News’.

The links in question were published on the Shetland News website. They took the form of headlines copied from the site of a rival paper: the ‘Shetland Times’. By visiting the Shetland News website and clicking on these links, visitors were taken to the corresponding articles on the Shetland Times website. Confused yet? The way things were set up meant it was possible to completely avoid having to visit the Shetland Times’ homepage, and therefore missing out on its advertising. As a result, the Shetland News website was receiving ad-based income for providing direct links to articles that they themselves had not authored. 

Understandably, the Shetland Times weren’t too pleased about this, and succeeded in having the use of the links halted through the use of an interim interdict. The reasoning for the decision was that the links came in the form of headlines that had been copied verbatim from the other site, and so there was potential copyright infringement. Disappointingly from an academic point of view, the case was settled out of court, with no final judgement made on the actual liability arising from the use of the links.

One of the first significant cases in the US regarding the status of hyperlinks was that of Kelly v. Arriba Soft Corp. This concerned the display of thumbnail images from a professional photographer’s website in search results. The images were available both as resized thumbnails, and full sized previews, which is akin to the functionality provided by Google Images. Arriba was sued for copyright infringement, and the appeal judgement from the Ninth Circuit Court in San Francisco found that the thumbnails were protected under the doctrine of fair use. However, there was liability incurred for the displaying of the images in a new display window – a practice known as ‘in-line linking’. After an amicus brief filed by the EFF, the judgement was revised; the concerns about the in-line linking removed, with the fair use affirmation standing. 

In the case of Intellectual Reserve, Inc. v. Utah Lighthouse Ministry, Inc., the court found that hyperlinks pointing towards illegally distributed material could in of themselves be considered to be contributory copyright infringement. In this particular situation, the facts were complicated because the owner of the website in question had originally stored copies of the protected content on their own servers, before replacing them with hyperlinks to copies stored elsewhere. It was the context of these actions that was important – echoing the ratio decidendi in Hird.

One of the more commonly cited cases in this area is the infamous Grokster case, in which the Supreme Court introduced a new potential for liability: that of inducement. It was held that where technology is created for the intended or actual purpose of encouraging its users to breach copyright, then the creators themselves could be held liable for contributory copyright infringement. Ultimately, Grokster was shut down. Despite the concern by service providers over the precedent of this case, the facts were very particular to this situation, with the platform actively fostering the ‘blatant and overwhelming’ infringing activity of their users. It is extremely unlikely that the same definition would be applied to the majority of contemporary online intermediaries.

Hyperlinks, the DMCA, and Contributory Infringement

Online service providers often receive DMCA takedown notifications that target hyperlinks leading to allegedly infringing material, rather than material that resides on their servers. They are faced with an interesting quandary as a result: whether or not to remove the link.

On the one hand, hyperlinks generally do not constitute copyright infringement. However, it is the context that is the determining factor when considering potential for liability. A link created by a user to illegal material may well be infringing, but where does this leave the service provider?

Service providers are afforded safe harbor immunity from the infringing actions of their users, provided they ‘remove or disable access to’ material upon receipt of a valid DMCA takedown notification. However, it is unclear how this would apply in the case of hyperlinks. In our example, the infringing material itself is located on servers out-with their control, but there is still potentially infringing activity taking place on their platform. Would a host be liable for a failure to remove a hyperlink to material, where that hyperlink was found to be an infringing act, based on the context?

We can take some insight into how the decisions of future courts may fall in this scenario by considering the ‘server test’ discussed in the Perfect 10 cases. Here, the facts concerned the display of websites in Google’s Image search that were infringing upon the copyright interests of the plaintiff. It was found that Google was not liable for direct infringement on the basis that the material at issue did not reside on their servers, and was served up from another host through their use of framing, or ‘in-line linking’. With regards to contributory infringement specifically, the court held that there was no liability, as the infringing activity itself would still exist irrespective of whether or not Google Images existed. In other words, they were not found to be encouraging the copyright infringement.

In Flava, the defendants were operators of a ‘social bookmarking’ service called myVidster that allowed users to share videos from different locations around the web, which were then embedded on their platform, served up from the original locations. They were sued for contributory copyright infringement, based on the actions of users that were sharing clips that had been uploaded without authorisation.

The service provider had already received a number of takedown notifications regarding the material, and it was argued that they had not taken enough action as required to qualify for safe harbor protections. However, that is not the be all and end all. In the words of the court: ‘a non-infringer doesn’t need a safe harbor.’ The parties who uploaded the videos in the first place were the ones whose activity was infringing, and the question is whether myVidster had encouraged their infringing activity to an extent that constituted contributory infringement. The court did not find this to be the case, holding that myVidster was neither a direct or contributory infringer. In other words, they were too far removed from the infringing activity, 

My View

Irrespective of the potential for individuals to incur liability based on the context of hyperlinks which they create, the application of the DMCA should not extend to their removal.

Part of the criticism of the DMCA is that there is a substantial burden placed on copyright holders to track down and report instances of infringement across the web. Much like the mythological Hydra, as one falls, more spring up to take its place. Slaying the beast requires attacking the root of the problem; treating hyperlinks as valid subjects of takedown notifications is to mis-understand the task, and only serves in the creation of extra conceptual heads to pursue.

Rather than target hyperlinks, the focus of enforcement efforts should be on the actual source of the infringing material: the host. Take out the location pointed to by hyperlinks, and they are instantly rendered obsolete. This is not only a far more effective approach in tacking infringing activity, but one that also avoids creating extra and unnecessary work. Financially, this means less is paid to third party agents such as DMCA.com, whose revenue is based on successful takedown notifications.

The DMCA is already a blunt, and powerful tool. Abuse of the system is rife, and often deployed for the purposes of censoring legitimate expression, rather than to curb copyright infringement. To extend its remit to include the removal of hyperlinks is a dangerous step, that fundamentally alters our relationship with a core structural element of the web, and risks a (further) chilling effect on freedom of speech.

Despite recent case law seeming to support this principle, the judgements have been extremely dependent on the circumstances involved, and there has been no definitive authorities. As a result, it is up to online service providers to shape the approach to the issue, rejecting DMCA notification takedowns that concern hyperlinks. Policy decisions such as this create the normative frameworks that have the power to help ensure or hinder a free and open web, and it’s critical that tech companies lead the charge, rather than taking a minimum risk stance.