Imagine someone sending false DCMA takedown notices against your channel, then demanding money. That’s someone who is now being litigated by YouTube.
It’s an aspect of the DMCA that major corporate copyright holders don’t like talking about. In fact, some even flat out deny the existence of the problem. That’s the ability to abuse the DMCA for financial gain. For many YouTuber’s, the problem is very real and they have to deal with these abusers on a somewhat regular basis.
For background, the DMCA allows rightsholders to issue notice-and-takedown’s against content they deem infringing. Platforms that operate in the US have to comply with those notices and assume that the material is infringing. From the get go, you can already see a major problem with this system. That problem is that it operates on the premise of guilty until proven innocent.
After all, copyright in the US also has the aspect of fair use. That is, there are exceptions to copyright where one can use copyrighted material. An example is criticism. Another is educational purposes. So, if you are using a short clip from a movie for educational purposes, then that does not technically infringe on copyright.
As almost everyone knows, YouTube is a very large site. That makes manual human moderation practically impossible. So, YouTube employed the controversial ContentID system which automates some of that filtering. Additionally, YouTube largely operates on the assumption that the DMCA notice is correct and that the content must be taken down. There is an appeals process that a YouTuber can go through, but it can be time consuming and difficult to prove. In a number of cases, the complaining party simply has to say, “I don’t believe you” and the takedown stands regardless of evidence.
There have been countless examples of content being taken down improperly. DMCA notices have been forged for the purpose of taking down perfectly legal content. Sometimes, it’s been used to take down criticism the complaining party doesn’t like. This tends to lead to highlights of the most egregious examples of censorship by copyright.
For some, taking down legal content for censorship or other malicious purposes isn’t enough. So, they take things to the next level. What some have been doing is taking down obviously legal content they don’t even own. The legality of the DMCA notices don’t matter because enforcement of provisions guarding against false DMCA takedown notices are never enforced. After that, the fraudsters then contact their victims and demand payment. If they pay a small amount, then the strike against their account will be removed.
For some of the more hardcore supporters of extreme copyright laws, these idea’s come off as just wild theories that would never happen. Just simple flights of fancy by those who want everything for free and will destroy copyright laws to get it. Of course, reality has a way of biting back against accusations like that. According to a new lawsuit known as YouTube v. Brady, YouTube is suing one such fraudster who reaped financial for sending false DMCA takedown notices on their platform.
The Electronic Frontier Foundation is highlighting this as an example of how far copyright abusers will go to abuse the system. From the EFF:
In this case, YouTube v. Brady, Christopher Brady is alleged to have filed false DMCA claims—claiming he either owned things he did not or claiming videos were infringing that were not. That alone is prohibited by the DMCA, which requires the person sending the takedown to affirm that they either own the work or are an agent of the owner and that the notice is being sent in good faith—that is, that they actually believe it is infringement. Someone who thinks a video is fair use but doesn’t like what it’s saying is not allowed to send a DMCA claim. And people who send DMCA claims can’t pretend that fair use rights don’t exist—they have to consider whether the uploader may have been protected by fair use.
Brady’s scheme is also alleged to go further than false claims. Brady apparently sent messages to the people he filed claims against, promising to withdraw the claims in exchange for money. For those targeted, going along with it might seem better than chancing ending up with a copyright strike. Under YouTube’s system, strikes only go away if they are withdrawn, after 90 days and completion of “copyright school,” or going through the DMCA’s counter-notification requirement. And counter-notifications can be quite intimidating, as they require users to turn over identifying information. Plus, resolving a situation this way can take a lot of time, during which YouTubers can’t upload or monetize their existing videos. Three strikes can cause YouTube to suspend a person’s account, which can be a serious blow to YouTubers’ livelihoods.
YouTube claims that Brady not only filed false notices, not only extorted users, but also abused the personal information contained in the counter-notices.
According to YouTube’s complaint [pdf], shortly after of the users Brady targeted did the thing they are supposed to do in the face of a bogus claim—send a counter-notice—they were swatted. (Swatting is harassment technique that consists of calling in a fake emergency to 911, resulting in a large number of police officers, often with guns drawn, showing up to the target’s home.) In other words, it’s suspected that Brady was able to swat someone only because of the information contained in the counter-notice. Personal information from a counter-notice being used for harassment purposes even further disincentivizes people from taking advantage of their legal right to respond to bad takedowns. And counter-notices have been shown to be fairly rare.
DMCA abuse is not a new problem, obviously. EFF has long documented and fought instances where takedown notices were sent erroneously, misused to silence criticism, or using a process, automated or otherwise, that doesn’t take fair use into account. And then there are complaints from copyright holders of improper counter-notices [pdf] and cases of counter-notices being in likewise bad faith or, frustrating the ability of the rightsholder to sue.
For all the claims over the years over how increasing copyright laws are supposed to benefit creators, this is a prime example of how increased copyright law powers actually harm creators. While some might just plug their ears and scream, “La la la, I can’t hear you”, reality just doesn’t care. It’s a very real problem that creators face. So, when major multinational corporations go to other countries demanding reforms that tighten copyright laws lawmakers need to consider the potential consequences. The above is a fantastic example of the consequences of having extreme copyright laws.
One can hope some good precedent can be set in this case and reverse some of the damage caused by the DMCA finally. Of course, that is going to be a long ways off and there are no guarantee’s that this will happen. Still, there is a silver lining in that this is evidence that YouTube is taking a stand on the most egregious offenders of copyright trolling. So, one can only hope some good comes from all of this in the end.
Drew Wilson on Twitter: @icecube85 and Facebook.
