Last week we tried to look at the Trans-Pacific Partnership, but we weren’t allowed. Today, we’re going back to where the copyright conflict on the Internet began, the second big law governing content on the Internet: the Digital Millennium Copyright Act of 1996.
The law was enacted in 1998 by President Clinton and has since become the model for online copyright legislation in the U.S. and around the world. The DMCA has serious accountability issues, requiring a great deal from defendants and service providers but almost nothing from plaintiffs. Here’s how it works.
The DMCA is located in section 512 of USC 17. It provides safe harbor for user-generated content, as we discussed in my last article. That means that so long as a site has a process for handling DMCA notices that falls within the guidelines of the law, they are immune from suits for infringement committed by their users. If a rights holder believes infringement has taken place, he files a DMCA takedown notice with the service provider. A DMCA takedown notice looks like this. After receiving the notice, the service provider must inform the account that received the complaint, and may take down the content if the service provider believes it is infringing. The person whose content received the notice gets the chance to file a counter notice, if the service provider agrees with the counter notice, the content may be restored. A person or organization may file a takedown notice on an unregistered copyright. Normally, you have to register your copyright with the U.S. Copyright Office before taking legal action. There is no requirement in the law that you prove your identity, or that you show ownership of the rights you are claiming.
That’s a real problem. It would be like going up to campus security, pointing to a professor’s Trans-Am and saying “hey, I own that Trans-Am and this professor stole it from me.” Then campus security has the professor’s car impounded. That happened to Justin Bieber’s Youtube channel, which was taken down by an anonymous prankster. Filing a false DMCA notice is a federal crime, perjury to be exact, for which those found guilty can serve up to five years in prison. Since the DMCA entered our body of law, not one charge of perjury has ever been filed by the Attorney General. Not Reno, not Ashcroft, not Gonzalez, and certainly not Holder. The only responses to DMCA take downs have taken place in civil court.
The most important example of which is Lenz v. Universal. In 2007, Stephanie Lenz uploaded a video to Youtube of her toddler dancing to a portion of Prince’s “Let’s Go Crazy.” Universal Music Group filed a DMCA take down notice with Youtube. Lenz filed a counter notice, informing Youtube that the video was fair use and sued UMG. While Youtube reinstated her video a little over a month later, the case would take three years to wind through our court system. Lenz won, and Judge Fogel’s decision stated that rights holders must consider fair use before issuing a takedown notice. Since Lenz received no damages, however, this case is a poor deterrent against filing false DMCA notices. Thus, the entertainment industry has blithely ignored Fogel’s decision.
More recently, in a case strikingly similar to Lenz, BMG filed a DMCA takedown against a Romney campaign ad. The ad featured about six seconds of President Obama singing Al Greene’s “Lets Stay Together.” The ad, which uses the song to criticize the President’s record on the economy, was taken down. BMG, no doubt, employs many talented attorneys; they know title 17 at least as well as I do. They surely know of the decision in Lenz v. Universal. They are well aware of how fair use works. Even as someone who disagrees with the Romney campaign, I can see how their use of the song is critical to the point they are trying to make. I could not present you with a more perfect example of censorship. I believe it is also a perfect example of a DMCA notice filed in bad faith. Sadly, it was one of many.
The Rush Limbaugh Show filed a DMCA notice on a video collage of his statements about Sandra Fluke created by Daily Kos. This happened at a time when the Limbaugh show faced severe criticism, and was losing advertisers based on Limbaugh’s response to her remarks while testifying before Congress. The collage was again, fair use. Criticism of statements made by a public figure. True, Rush’s statements might have a damaging effect on the market for his work – the fourth test of fair use. However, it is the content of the statements, not the fact that they were used by Daily Kos that may have had a negative effect on the market. Neither side of the political line has a monopoly on reaching for the ‘shut up’ button – the DMCA is just too tempting. Everybody loves free speech, until someone says something that offends them. Even artists who should know better.
You don’t have to be a multi-billion dollar media company to abuse the DMCA. Indies can play too! A group of independent authors filed DMCA notices en masse against the eReader lending service Lendink. The website was owned by a disabled veteran in California, who had already seen more than his share of setbacks, and this was the last straw. His host shut down the site until he answered every DMCA notice. Lendink was a perfectly legal service. It hosted not a single byte of pirated content. What it did do was connect people with a Kindle or Nook book to loan with a person who wanted to borrow it. The actual lending took place through Amazon or B&N. Every school and library in America should be doing this. Kindle or Nook owners, under the terms set by Amazon and Barnes & Noble, may lend a book once to another device owner for fourteen days. These authors’s contracts said exactly that, but most were unaware of that fact. There was also a hard-core group that knew their contracts, knew the law, and still filed DMCA notices. They were happy to collect Amazon’s royalties, and at the same time claim lending violated the “spirit” of the law. That isn’t the way the law works. Law is determined by statute, decisions made in the past (precedent) and the judge’s ruling in the case before the court. An announcement on Lendink’s Facebook page announces that they are back up, however, Google cautions that the site may be compromised. Assuming the announcement is true, these authors nearly destroyed an awesome service and a man’s livelihood. They can do this for the same reason the big entertainment companies can: they know that no one will ever call them to account.
You want more? I can do this all day. Techdirt published a piece on SOPA that was taken down by a DMCA notice for months. The head of the IP enforcement company responsible did come forward and apologize, stating that it was an accident. This sort of accident by IP enforcers is distressingly common as a University of Washington study shows.
“Practically any Internet user can be framed for copyright infringement today.” They also noted “even without being explicitly framed, innocent users may still receive complaints . . . even if they have never used P2P software!” The study deals with peer-to-peer, but there is no reason to believe that rights holders are any more careful on the web. As if all of this wasn’t enough, the DMCA is at the heart of the one of the biggest challenges to free speech online in years.
The Innocence of the Muslims trailer on Youtube. An actress in the film has filed five DMCA notices against a property she does not own. She is not the rights holder, and only the rights holder or a designated representative of the rights holder can file. That is explicitly what the law says. She is now taking Google to court to have the video taken down. I sympathize with her; a zine I wrote for received death threats. It isn’t fun, and can be frightening. But you don’t get to ignore the law because you’re afraid. Google was obeying the law when it refused to comply with those DMCA notices.
Speaking of Google, they will be lowering the search rank of sites and content that have been subject to successful DMCA notices. Google has traditionally been a free speech stalwart, and this is a disturbing trend. Google is already central to success in business. We’ve seen that our Attorney General has no interest in combating fraudulent DMCA notices. This is the environment in which extortion thrives. “Nice site you’ve got here, it’d be a shame if something happened to it.”
That could be how your small business, my blog, or even our newspaper’s story ends. When China, Iran, Vietnam, or Saudi Arabia censors content on the Internet, they earn our righteous contempt. Our State Department has made it their goal to support freedom of speech on the Internet around the world. I wonder who will save ours. Could it be you?
Lets find out. Register to vote. Do it now. Then tell the White House that you’ve had enough. Let them know that your freedom of expression and your fair use are important to you. You can talk to them on Twitter, Facebook, G+, and by email. You can contact President Obama’s campaign via Facebook, Twitter, and email. For his part, Romney buckled like a belt when he was censored. Let him know that’s not acceptable, that you expect him to protect your rights if he’s elected President. You can do that by email, Twitter or Facebook.
Copyright has a place in the law of a civilized society. It ensures artists receive attribution, and recompense for their work. More importantly it allows our culture, and our shared body of knowledge to grow. It does that by providing exceptions to the law, like fair use, and by being of limited term. This is not what our copyright law does. We’ve seen attempts to classify cell phone ringtones as a public performance, your ebook reader vocalizing an ebook is alleged to be a violation of an author’s audio rights, and a thousand other notions that don’t pass the giggle test. Our copyright law has become a private law, negotiated between our government and rights holders without your input. Nowhere is that more apparent than in the Six Strikes Agreement, brokered by the Obama administration with the entertainment industry and Internet service providers. It is an agreement that endangers your access to the Internet. Come back next week to find out more.