Tag Archives: takedown procedures

NEW COPYRIGHT NOTICE OF INQUIRY

The US Copyright Office has issued a Notice of Inquiry seeking input on issues related to the DMCA safe harbors and the notice-and-takedown provisions. They are specifically looking for input from the perspectives of large- and small-scale copyright owners and online service providers. A copy of the notice can be found here. I plan to respond on behalf of DMLA. Individual members are free to file their own responses as well.

As background, the DMCA notice-and-takedown procedure was created by Congress in 1998 as a means by which copyright owners and representatives can address online infringement, and online service providers can limit their liability for third party conduct on the web; it was intended to help foster the growth of the internet. The process begins when a copyright owner gives an online service provider notice of specific infringing conduct, as well as certain additional information as required by Section 512(c)(3) of the Copyright Act. Following receipt of notice, the OSP must either comply with the takedown request and remove the infringing content from their website or submit a counter notification attesting to their rightful use of the allegedly infringing content. This process can, to a certain extent, be automated using software that searches for infringing uses. However, the fact that an OSP complies with a takedown request for one particular infringing use does not prevent additional infringing uses from appearing on the OSP’s website in the future. Each instance of infringement must be addressed by the notice-and-takedown process. This process has proven overwhelming for most content owners and has been likened to a game of whack a mole where as soon as you have infringing content taken down, it appears on another site so you are continuously in a cycle of sending takedown notices. Many content owners do not have the resources or staff to continually search the Internet for unauthorized uses of content.

In preparing my response, I’m seeking input from members. The notice has 30 specific issues that we can address. Of particular interest to the DMLA and its Members are the Copyright Office’s following issues:

  1. How has the safe harbor for internet service providers impacted the protection and value of copyrighted works, including licensing markets for such works? And have the safe harbors struck the correct balance between copyright owners and online service providers?
  2. How effective, efficient, and/or burdensome is the notice-and-takedown process for addressing online infringement?
  3. Does the notice-and-takedown process sufficiently address the reappearance of infringing material previously removed in response to a notice?
  4. Are there any existing or emerging “standard technical measures” that could or should apply to obtain the benefits of the section 512 safe harbors.(For example, should the OSPs work with image libraries in using image recognition technology to eliminate infringing works from their sites?
  5. What, if anything, should be done to address these concerns?

Please will free to send comments to me on these or any of the other issues addressed in the notice of inquiry. I plan to coordinate responses with the various other associations involved in the visual content community. The notice of inquiry must be submitted by March 21, 2016. If I could have responses by March 1, it would be greatly appreciated.

Nancy Wolff                                                                                                                                                     DMLA counsel (nwolff@cdas.com)

DMCA Takedown Notices Require Fair Use Considerations

Lenz v. Universal Music Corp., Case Nos. 13-16106 and 13-16107, in the United States Court of Appeals for the Ninth Circuit.

 by Nancy Wolff and Josh Wolkoff, Cowan DeBaets Abrahams & Sheppard, LLP

The Digital Millennium Copyright Act (DMCA) was enacted in 1998 to address in part issues created by the internet and the widespread posting of content by users. In reforming the Copyright Act in 1978, the drafters thought that this Act would serve well into the future as it was content neutral but they could not foresee the way the Internet dramatically altered the way users exchanged content online and how perfect copies of copyrighted content could be virally distributed in seconds. Internet service providers (ISPs) were concerned with strict liability and monetary damages based on content posted by users and hosted on their servers over which they could not monitor and control. Section 512 of the Copyright Act was enacted to balance the concerns of ISPs and copyright owners. Qualified ISP were granted immunity from liability if they received a proper notice of infringement and expeditiously removed the infringing content.

There has been much litigation over the years regarding various aspects of the DMCA, including whether a copyright owner is required to consider whether the use made of the uploaded content is considered a fair use and not an infringement before issuing a takedown notice. Because of the massive amount of content uploaded by users, and the difficulty to search the ever increasing number of sites, content owners, including the music industry, employ technology to crawl the internet to find unlicensed content in order to end the ISP the requisite takedown notice.

A test case was brought in 2007 by Stephanie Lenz, a mother who sued Universal Music Group after YouTube removed a 29-second video of her toddler dancing to Prince’s “Let’s Go Crazy” in response to a DMCA takedown notice submitted by Universal Music Group, Prince’s music publisher. Not surprisingly, the Electronic Frontier Foundation, a pro user group supported Lenz in bringing this test case. Dubbed the “dancing baby case,” Lenz argued that her video was protected by the doctrine of fair use and that Universal’s takedown notice violated a section of the DMCA that provides liability for knowingly making material representations because it misrepresented that the video was infringing without considering fair use . Under the DMCA, a proper takedown notice must include a statement that the owner or its agent has a “good faith belief” that the use of the copyrighted work is not authorized under the law.

The case ultimately made its way to the Ninth Circuit Court of Appeals. An appeal the court was asked to examine whether fair use was a right under copyright and an authorized use, or a defense to infringement and unauthorized. In a significant ruling to content owners and ISP’s, the court issued a bright line rule that copyright holders must consider the fair use doctrine before issuing takedown notices to remove otherwise infringing content under the DMCA. The Court’s decision makes clear that a failure to do so can open the door to nominal monetary damages and attorneys’ fees for any material misrepresentations made (or improper procedures used) in the course of pulling content from service providers like YouTube. The court explained that fair use must be treated differently than other affirmative defenses because fair use is not merely an exception to an infringement – it is one that that is expressly “authorized by law” under Section 107 of the Copyright Act.

The Ninth Circuit took great pains, however, to qualify the thrust of its ruling, suggesting that it was “mindful of the pressing crush of voluminous infringing content that copyright holders face in a digital age.” In particular, a sender must only form a “subjective good faith belief” that the use is not a fair use or not authorized under the law. The inquiry “need not be searching or intensive” and, in fact, the Court recognized the role that computer algorithms and automated programs might play in making such fair use determinations and issuing proper takedown notices. The Ninth Circuit also confirmed that the question of liability for material misrepresentations does not hinge on whether or not the use is indeed a fair use: courts are “in no position to dispute the copyright holder’s belief even if [the court] would have reached the opposite conclusion.”

As a result content owners should review their notice and takedown procedures in order to ensure that their procedures give due consideration to potential fair uses. DMLA, in watching this case over the years, revised the declaration in its DMCA notice to include reference to a fair use review: I have a good faith belief that use of the material in the manner complained of herein is not authorized by COPYRIGHT HOLDER, its licensing representatives, or the law and is not a fair use.

Even if using recognition technology to find infringing uses, someone should review the use to determine if the use is a fair use or not. As fair use is determined on a case by case basis, and in not the easiest area of the law, the determination just needs to be made in good faith. As noted by the Ninth Circuit, it is not a material misrepresentation if a court might come out differently. Fair use is a judgment call after weighing the requisite four factors. DMLA has a webinar on fair use found [here] and the Copyright Office has published an index of fair use cases [http://copyright.gov/fair-use/]

*** You can find the DMCA takedown notice on the DMLA Document Library