Oregon Volunteer Lawyers for the Arts

In Defense of Art

In Defense of Art is the official blog of Oregon Volunteer Lawyers for the Arts

Online Content Sharing, Part III: Is It Working?

by Robert Parker

The Digital Millennium Copyright Act (DMCA), in particular the section 512 safe harbor provision, fundamentally changed how content is shared on the internet. As we discussed in Part I, the safe harbor attempts to incentivize service providers places where content can freely be shared online without destroying the copyright holder’s hopes of protecting his intellectual property. The takedown notice and counter-notice procedures we discussed in Part II attempt to provide an effective but balanced way to enforce copyright protections online without subjecting the process to abuse. This week, we’ll address the question: is it actually working?

The short answer is that a change as major as the DCMA is always going to be a work in progress for several years after its passage. The DCMA itself is evidence that the Copyright Act, over a century old, continues to adjust, improve, and adapt to this day. However, there are still plenty of challenges to address. This week, we will briefly address a few of the problems with the current system that have been discovered.

Online “Mini-Courts” and Service Provider Innovations

The DCMA has provided copyright holders with powerful and affordable tools to protect their interests while still allowing service providers to provide a medium for people to share their content online. However, by making it cheaper and easier for rightful holders to enforce their copyrights, the DMCA has also provided channels for “strategic” takedown notices as well. (A “strategic” claim is one where the claimant doesn’t necessarily think there’s a valid claim, but simply the accusation will chill others from posting online).

Additionally, whereas lawsuits are handled by licensed attorneys and judges, the safe harbor provision puts the burden on the content providers themselves, who may not be as well-versed in the law, to make judgment calls as to whether claims are legitimate. And because there is no penalty for a content provider to take down online content even if it does not violate copyright law (it is, after all, the service provider’s right to decide what goes on its own website), the penalty for allowing actually violative content to remain online is a total loss of safe harbor. Some argue that this puts a thumb on the scale in favor of allowing all infringement claims, whether legitimate or frivolous, to be enforced.

As discussed in Part II, several safeguards are put in place to counter this danger and ensure that the poster of legal material has legal recourse to protect her content. However, one of the main outcomes of the DMCA is the creation of a system by which disputes are resolved without court involvement. Although the safe harbor provision sets out the procedural requirements of such a process, it is the service provider, not the courts, that enforces takedown notices. Larger sites like YouTube have put fairly robust procedures in place to handle takedown notices, creating a sort of “mini-court” within the confines of the service provider and the website itself. Within these mini-courts, these service providers provide some innovative solutions beyond what is contemplated by the safe harbor rules themselves.

For instance, YouTube recognizes the “whack-a-mole” problem that many copyright holders have to deal with, where an offending post is taken down only to be put right back up. YouTube attempts to address this problem in several ways. First, it has a “copyright strike” system, so a repeat offender’s entire account is taken down. Although this does not prevent the infringer from creating a new account, doing so can be enough of a hassle that the infringer will simply stop trying. Second, YouTube offers a ContentID service, where YouTube scours its own videos and detects suspected infringing material, more effectively and easily than if the copyright holder attempted to do so herself. Both of these processes have ways for the poster of allegedly infringing content to protect himself, including a “Copyright School,” which a poster can take to rehabilitate his record after receiving strikes, and of course, the counter-notice process discussed in Part II.

The Monetization Problem

Another issue that YouTube attempts to address is the fact that, by the time an infringing post is discovered, the damage may have already been done. In some cases, the infringing post may actually have become more popular than a claimant’s original work; in “scalping” the claimant’s work, the infringer may have to take down the material, but he still keeps the profits from whatever views (and accompanying ad revenue) he has received, and while the infringer loses any popularity the infringing post has received once it is taken down, the copyright holder has also lost that popularity. In some cases, the copyright holder might not want the post to be taken down; he just doesn’t want an infringer to be profiting off of it. YouTube attempts to address this problem by giving the claimant a choice: you can demand that the entire video be taken down, you can demand that only your copyrighted material be removed (for instance, if you own the rights to the music, you can demand that the video be played without audio), or you can allow that the video remain online, but that any monetization be given to you, the claimant, rather than the poster. If the poster did not monetize the video (by not including ads), the claimant can demand that monetization be added to the video, with the proceeds going to the claimant.

The monetization-shifting solution is a win-win in certain situations: the audience does not lose access to the copyrighted content, the poster does not (necessarily) get a strike, and the claimant profits from her copyrighted material. On the other hand, it provides a financial incentive for claimants to file notices that may not be valid. This has led to the rise of a handful of “ContentID Trolls,” in the same category as patent and other IP trolls. ContentID trolls falsely claim ownership of popularly-used material, or file claims of material they own but that others use legally, so that they can claim the ad revenues from ads which use that material. The poster can still file a counter-notice, but the stakes are high: YouTube will ask the claimant whether your defense is valid, and if YouTube decides that the claim is still valid, the poster who files the counter-notice will get a copyright strike, and while the claim is pending, YouTube may withhold all revenue from that poster, even on other videos.

YouTube has made some adjustments to its process to reduce the incidence of trolls, including holding monetization in escrow during copyright disputes rather than diverting it to the claimant, imposing punishments for repeated bad faith claims, and even offering to pay the legal bills of posters who have valid fair use claims for their content. However, all of this requires action by the poster to fight back, and most are still likely to simply allow the claimant to monetize the one claimed video. It is fair to point out that, by allowing videos for which there are claims to remain online, YouTube continues to receive its cut of the ad revenue as well, so there is a financial incentive for YouTube to continue its monetization-shifting model despite its problems.

The Doxxing Problem

One of the most celebrated features of the internet is also one of copyright holders’ biggest challenges: its anonymity. The internet provides a place where people can safely share content while remaining anonymous if they so choose. There are, without question, some downsides to anonymity, but it has also enabled people from all around the world to have their voices heard when they might otherwise fear retaliation or other consequences. As we noted in Part I, one of the consequences they avoid online, however, is liability for copyright infringement. The DCMA’s solution to this problem is to require the service providers, who are not anonymous, to take down infringing content, and if the poster wants to avoid this, she must provide the service provider and the claimant with her personal contact information.

A certain group of claimants have learned how to leverage this requirement. If an individual dislikes content online, he can file a takedown notice, even if there is no actual infringement. The poster then must make a choice: she can take the material down, or she can file a counter-notice which includes her personal information, which the service provider must give to the claimant. The ostensible purpose of allowing the claimant to sue the poster for infringement in court, but some claimants have used this process in order to “dox” the poster (a respelling of “docs,” as in revealing personal documents)—break the poster’s anonymity and publicize her personal information for others to see.

The Extrajudicial Problem

There is one other drawback to the DMCA safe harbor rules that has inadvertently exposed it to abuse. One of the problems with online content is that much of it comes from abroad. Thus, even if a copyright holder knows who is posting infringing content, if the infringer is outside of U.S. jurisdiction, there may be little that the copyright holder can do. The safe harbor provision attempts to solve this problem by putting the onus on the service provider, who is subject to U.S. jurisdiction (if it weren’t, it wouldn’t need the safe harbor in the first place), to take down any infringing material. Then, if the poster wants to fight the claim, in filing the counter-notice he must agree to subject himself to U.S. jurisdiction.

However, there is no equivalent requirement for claimants. A party can file a takedown notice from anywhere in the world, and the service provider still has to oblige. If the poster files a counter-notice and the claimant chooses to keep the claim alive, the service provider is still likely to keep the material offline (or shift the revenue to the claimant) rather than risk loss of safe harbor. If the poster still wants to pursue her counterclaim, her next step is to sue for a declaratory judgment that the material is not infringing; at this point, the claimant is unlikely to oppose, and the service provider is likely to restore the material. However, getting a declaratory judgment is expensive. And because the claimant is not subject to U.S. jurisdiction, the threat of perjury or liability for damages no longer has any deterrent effect to discourage frivolous claims.

Online Content Sharing, Part I: Safe Harbor

Online Content Sharing, Part II: Takedown Notices