Cory Doctorow and BoingBoing outraged!

Cory Doctorow at BoingBoing  says "Viacom terrorizes YouTube with bullshit DMCA notices" by serving YouTube with over 100,000 take down notices. The New York Times says 'Reports have been circulating in the industry that Google had offered to pay $100 million a year for the use of Viacom’s programming." John Palfrey at Harvard takes a more balanced view. Donna Bogatin at Digital Markets sees both Viacom and Google as big corporate bullies.

UPDATE: Mark Cuban turns the tables and says "GooTube Terrorizes Copyright Owners by Witholding Filters"

Cory Doctorow cites one example of a video that appears not to be a violation, and suggests;

"And Google can take steps now to reduce that load: sue the living shit out of Viacom. We've got precedent -- the Diebold debacle -- for the idea that abusing the DMCA takedown process is illegal. Courts have been willing to punish this kind of excess by awarding fees and damages."

Cory, I don't think one video, or even 100 videos, out of more than 100,000 constitutes "abusing the DMCA takedown notice process". I am painfully aware of how the DMCA works from my days at Napster. Here is an explanation from Wikipedia. Note steps 6 and 8 to see how easy it is to put content back up.

Here's an example of how the takedown procedures would work:

1. Alice puts a copy of Bob's song on her AOL-hosted website.
2. Bob, searching the Internet, finds Alice's copy.
3. Charlie, Bob's lawyer, sends a letter to AOL's designated agent (registered with the Copyright Office) including:
   1. contact information
   2. the name of the song that was copied
   3. the address of the copied song
   4. a statement that he has a good faith belief that the material is not legal
   5. a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
   6. his signature
4. AOL takes the song down.
5. AOL tells Alice that they have taken the song down.
6. Alice now has the option of sending a counter-notice to AOL, if she feels the song was taken down unfairly. The notice includes
   1. contact information
   2. identification of the removed song
   3. a statement under penalty of perjury that Alice has a good faith belief the material was mistakenly taken down
   4. a statement consenting to the jurisdiction of Alice's local US Federal District Court, or, if outside the US, to a US Federal District Court in any jurisdiction in which AOL is found.
   5. her signature
7. AOL then waits 10-14 business days for a lawsuit to be filed by Bob.
8. If Bob does not file a lawsuit, then AOL puts the material back up.

This really puts the pressure back on Viacom to file thousands of lawsuits within 10 to 14 business days, in hundreds of different jurisdictions. Based on my experience at Napster, this isn't going to happen.

What will happen? The most likely scenario is that most of the 100,000 videos will be taken down without protest from the person who uploaded it, because it probably is infringing content. However, some, perhaps 1% or 1,000, will respond with a counter-notice to put the content back up. Then Viacom will need to decide which of these 1,000 responders they will choose to sue. They will pick a few high profile videos from a "prolific and frequent" posters of videos and sue them. This is the IRS approach; sue a few high profile individuals to scare the rest of the population into compliance.

What is fair and right?  Creators of content have the right to decide how and where their content will be used. Some will choose to let it be shown on YouTube because they feel it will promote their brand. Others will choose to keep their content off YouTube. It is their choice, not ours, not YouTubes. It doesn't matter how short-sighted we think Viacom is, or how they don't see the potential value to their brand.

If this was software we were talking about then some of us might have a completely different view of what is fair and right. If my software was being offered for free to millions of people without my permission I would not be happy. I would feel like I was being ripped off. If I wanted to have my software available to everyone I would have posted it on SourceForge as Open Source and put a GPL license on it. It is my choice, not yours. Taking copyrighted software and putting in an the Internet for everyone to take is illegal. Music and videos are no different.

Free Enterprise and economics always win - Viacom has been negotiating with YouTube for several months on royalties or a percentage of revenue for their content. They have failed to reach an agreement, so Viacom chose to request a "Take Down" of their content. Perhaps this will get both sides back to the negotiations and a reasonable settlement will be worked out. Other content owners have settled with YouTube so it seems there should be a reasonable compromise available. It just takes time. We ran out of time at Napster. It took 3 or 4 years for the record labels to make a deal with iTunes and other music services. It will eventually happen with video too.

Subscribe - To get an automatic feed of all future posts subscribe here, or to receive them via email go here and enter your email address in the box in the right column. 

Comments

[Will]

I think you have the wrong idea about this case...

Using your example....

1. Alice creates a song with the same title as Bob's song on her AOL-hosted website. This song is 100% her own work.

2. Bob, searching the Internet, finds Alice's song.
3. Charlie, Bob's lawyer, sends a letter to AOL's designated agent (registered with the Copyright Office) including:
1. contact information
2. the name of the song for which Bob has no claim
3. the address of the song for which Bob has no claim
4. a statement that he has a good faith belief that the material is not legal
5. a statement that, under penalty of perjury, Charlie is authorized to act for the copyright holder
6. his signature
4. AOL takes the song down.
5. AOL tells Alice that they have taken the song down.

etc

I have no doubt that there is some Viacom copyright work in there somewhere... but it's the seemingly large numbers false positives which may generate the lawsuit.

[Lloyd Budd]

There is no way I am hosting with your AOL Don. The approach you present will often inconvenience the wrong party, and that is where Cory's position is strong and so is Mark Cuban's.

Step 4 should be:
AOL considers the claims of the DMCA notice, and chooses to either continue as you describe, but if not a shut book contacts Alice for her position.

[Jaegercat]

As a content owner who has just been hit by a "False Positive" in this case, I would agree with Will that your step-by-step analysis doesn't really work, as you're working from the assumption that very cease-and-desist had at least some level of justification.

I received the notice from Youtube for a video that has absolutely no connection with Viacom copyright work, and that nobody in their right mind would ever think was connected, except that it may happen to have a common English-language word in the title that also appears in the title of a Viacom TV programme that I'd never heard of until this weekend.

In 10-14 days time, if/when someone gets around to acting on my counter-notice, then someone at Viacom or Google may actually watch my video, and will then realise how ludicrous the complaint was and reinstate it. But in the meantime, anyone who tries to access that video using some link that I gave out a month or so ago is seeing a defamatory statement that I stole Viacom's work.

That's what "false positive" means, and is why there needs to be a lawsuit.

[DonDodge]

This isn't my process...this is the law under the DMCA. The RIAA and MPAA employ lots of lobbyists in Washington to get the laws the way they want them.

I was on the losing end of this legal process while at Napster. We were trying to create a new way to enjoy music and a new revenue stream for the record labels. The labels used the DMCA to kill us, then they took a few years to get their contracts in order before making a deal with iTunes and others.

YouTube is in the same situation except they have the benefit of hindsight, and the content owners have had 7 years to figure out that the Internet is a friend not the enemy.

Jaegercat, I agree you have been inconvenienced by the process, but it is very easy to correct the mistake. Just respond with a counter-notice.

In terms of a lawsuit against Viacom you will need to come up with some law they violated, and prove damages to you. That will be very hard to do. Defamation is also very hard to prove. Just look at Rosie and The Donald trading insults...and there is no legal defamation there.

I don't particularly like these laws either, and have been hurt by them far more than anyone else I know, but it is important for all of us to understand how they work.

Lloyd, this is the DMCA process. But, even if it wasn't, the last thing AOL or YouTube wants to do is get in the middle trying to decide who is right or wrong between a user and a content owner. They would be in a no win situation...sure to draw fire from one side or the other no matter what they did. Believe me AOL and YouTube like the law and process the way it is.

[Lloyd Budd]

"between a user and a content owner", oops, you mean two groups that claim content ownership, correct?

My limited understanding of the law, is it provides like any law, more flexibility and that is reflected by the rest of the Wikipedia article you took the example from (making it your own). “Expeditious” action

I think the OSP has a moral obligation to its customer to consider the validity of the claim particularly if they are positioned to take action which companies like Google and AOL are.

In fact at WordPress.com I have seen my leadership take just that position. Investing our own resources where appropriate.

You are correct that under many circumstances it is best for everyone involved for the result to be as described in your example.

[Don Dodge]

Lloyd, Read more carefully. I cited Wikipedia as the source of the example, and included a link. Don't be accusing me of taking someone else's content and "making it my own". I take this stuff seriously.

As for moral obligations, any company who takes it upon themselves to decide right and wrong in a legal situation is setting themselves up for a certain lawsuit. The DMCA is set up to protect AOL, YouTube, and any other ISP or content hoster. They would be crazy to risk their "safe harbor" by inserting their own judgement into the situation. Even when you are trying to do teh right thing, more often than not, you will be punished.

[Lloyd Budd]

I am sorry that I was not clear. By "making it your own" in this context I am saying that to some degree you are agreeing with that example representing how DMCA works or should work.

---

I assume by "this stuff seriously", you are refering to proper license to work. That is apparent, and I wish it was as important to all people publishing or distributing content.

There seems to be an opportunity to improve the style/format of citation here. It is quite poor. It is not clear where it begins, ends or if the emphasis is your own.

[Jaegercat]

Don, you weren't happy that someone appeared to be accusing you of taking someone else's content and making it your own. This is exactly what is happening over at Youtube, with the false positives. Viacom have made this accusation about me, and an unknown number of other people, and they're making the accusation public - Youtube didn't just take down the videos, they replaced them with a banner headline, in red, stating that the content was Viacom's copyright.

And 3 days after I faxed the counter-claim, they're still dislaying this banner against my creative content.

This is a little more than just a mild inconvenience.