copyright school – Techdirt (original) (raw)

Carl Malamud Asks YouTube To Institute Three Strikes Policy For Those Who Abuse Takedowns

from the a-potential-solution dept

We write frequently about those who abuse the DMCA either directly for the sake of censorship or, more commonly, because some are in such a rush to take down anything and everything that they don’t bother (or care) to check to see if what they’re taking down is actually infringing. The latter, while common, could potentially expose those issuing the takedowns to serious legal liability, though the courts are still figuring out to what extent.

Last week, we wrote about Boston public television station WGBH issuing a bogus takedown on some public domain (government created) video that Carl Malamud had uploaded to YouTube. That doesn’t look like an automated takedown, but rather someone working for WGBH’s legal team who just decided that anything with “American Experience” in a title must be infringing. Malamud has now published the letter that he sent YouTube, about the whole situation. It includes some more details concerning the insulting manner in which WGBH’s legal team, Susan Kantrowitz and Eric Brass, handled the situation, including Brass telling Malamud that this wasn’t a big deal because deleting this “particular film” was not that important.

Meanwhile, I finally reached the WGBH legal department. Susan L. Kantrowitz, General Counsel, wrote to me that ?It is highly unusual for Amex to be in a title and not be one of our shows? and they would ?address it on Monday.? Eric Brass, Corporate Counsel, wrote that ?the take down request very well may have been an error, but given that it is late on a Friday afternoon in August, I may not be able to get back to you (or YouTube) until Monday.? He then wrote me back and indicated that while perhaps my YouTube account was important, this ?particular film? was certainly not. I spoke to him on the phone and he repeated that no harm had been done, but and that after he completed his investigation he would,?follow up with something in writing that might be helpful for you if a question arises down the road about the take down.?

I want to stress that the timing of this takedown was not mine, it was instigated by WGBH and it was done deliberately as a formal legal action. Mr. Brass seemed quite peeved that I was upset, even though I was just minding my own business on the Internet when some hooligans from Boston came over and smacked me for no reason at all, then left for a weekend at the Cape.

The process of creating a copyright strike is not a casual one. WGBH had to go through several screens to identify the video, fill out their contact information, and checked numerous boxes indicating that they understood this was the beginning of a legal process, then signed a statement indicating that all statements were true and that they were in fact the true and correct owners of that film or portions of that film. In order to respond to that legal accusation, I had to go through a similar process of swearing under oath and accepting a court?s jurisdiction for my counter-claim.

Because of all of this, Malamud has suggested that YouTube institute a similar reverse three strikes policy for those who abuse the DMCA takedown process:

I believe that incorrectly posting a video that is under copyright is in fact worthy of a copyright strike. However, I think the opposite of that should be true. WGBH committed a copyright foul and should be prohibited from having the capability to take another user?s films down for a six-month period. If they commit 3 copyright fouls, their account should be revoked. WGBH personnel should be required to go to copyright school so that they fully understand their responsibilities under the law.

Given the blithe and uncaring attitude of WGBH legal staff, they should also be required to undergo copyright school. Their blase attitude was not impressive, and I can just imagine the reaction of WGBH if somebody had improperly taken down one of their media properties would not have been nearly so casual.

The idea of a reverse three strikes policy is not a new one. We first wrote about it back in 2008. Unfortunately, under the current wording of the DMCA, it would be very difficult to do it properly, but it does seem worth considering, considering just how frequency such a power is abused.

Filed Under: abuse, carl malamud, censorship, copyright, copyright school, dmca, takedowns, three strikes
Companies: wgbh, youtube

from the not-good dept

YouTube and Google have been getting slammed in various circles for its weak “copyright school” video that it makes those accused of infringing copyrights on YouTube watch. Apparently the “copyright school” also has a quiz they want people to take, and people examining those questions are also finding some serious problems with them:

Question 4 on my quiz read: “Copyright infringement occurs when a copyrighted work is ________ without the permission of the copyright owner:” and then asked me to choose between reproduction, distribution, performance, and public display (or all of the above). Two problems here. First, section 106 only gives authors the right to public performance, not all performance. Second, the question assumes that if you don’t have the copyright owner’s permission you must be infringing, when the Copyright Act has no fewer than sixteen separate sections that establish limitations and exceptions to the author’s rights (sections 107-122). For example, if your use is a fair use, you need no permission whatsoever from the author, and you’ve committed no copyright violation. What’s more, Google knows this, because it’s relied on these statutory exceptions in court time and time and time [pdf] again. I don’t think Google actually means to take a “fair use for me but not for thee” position, so perhaps we can give Google the benefit of the doubt and assume it was intended as a trick question.

When I refreshed the page to take the quiz again I saw more questions that caused concern. “The following is not a good subject for your YouTube videos….” But “good” is a normative term, and copyright law has nothing to do with whether your work is good or not–just because your use is legal doesn’t make it good, and vice versa. What Google really seemed to mean by “good” was “lower risk of infringement allegations.” Again, as a private company it’s Google’s prerogative to decide what videos it wants to encourage users to post based on its own value judgments, but this seems to go against YouTube’s reputation as an open space for users to create and express themselves freely.

It goes on along those lines. There are some serious problems with the quiz questions. That said, what this really demonstrates is just how difficult it really is to explain today’s copyright laws in a way that people understand them. That should be clearly seen as a problem with the law, not a problem of education.

Filed Under: copyright, copyright school, education
Companies: google, youtube