YouTube’s DMCA decision and the campaign to morph victims into villains

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YouTube will pay copyright court costs for a few users–not because it’s right–but to protect Google’s bottom line

According to a story in the NY Times, the folks at YouTube are ready to pony up cash to support some of its users “fair use” claims in court.

YouTube said on Thursday that it would pick up the legal costs of a handful of video creators that the company thinks are the targets of unfair takedown demands. It said the creators it chose legally use third-party content under “fair use” provisions carved out for commentary, criticism, news and parody.

You’ve probably read a lot about “fair use” lately.  It’s the Google-funded (EFF) Electronic Frontier Foundation’s mantra and if the folks there had their way, pretty much everything and anything would be considered “fair use.”  Fair use an important legal doctrine and when applied properly (criticism, comment, news reporting, teaching, scholarship, or research) is not an infringement of copyright.  However, these days, too often it’s used as a disingenuous defense for copyright theft.

The tech-funded campaign to turn villains into victims

When a court recently ruled that a snippet of a Prince song playing in the background of a YouTube video in the notorious Dancing Baby case was indeed “fair use,”it gave a boost to efforts to use fair use as a cudgel against rights holders who legitimately assert their rights using the DMCA takedown process.

Note that the actual video at the center of this case was reposted after the uploader sent a counter-notice. The only reason the case ended up in court was because the uploader, Stephanie Lenz, filed suit and the only reason she did so was because she was bankrolled by the EFF.  The EFF saw it as an opportunity to advance its Google-funded agenda.  As Terry Hart noted in 2010 on his Copyhype blog:

Luckily, our society has survived the brief time when Lenz’s video was not available to the world. But does this episode only highlight the DMCA’s sword of Damocles hanging over free speech and creativity? Or is it just another example of the cries of internet freedom fighters that the sky is falling as content industries adapt to technological changes? I think it’s the latter: despite the elevation of this dancing baby video to a cause célèbre, our freedom to speak is not threatened, and any “burden” the DMCA places on users uploading content is almost illusory.

With this YouTube gambit–which one can imagine that EFF is chomping at the bit to find yet another test case to take to court in an effort to expand the definition of fair use beyond those prescribed by current copyright law.

At last weeks House Judiciary committee copyright roundtable in Santa Clara the term “fair use” was bandied about repeatedly.  At some point a panelist complained that bogus DMCAs made up more than half the takedowns sent.  NOT TRUE!

Legit DMCA takedowns on Google outnumber false ones by a huge margin–97% to 3%.

The EFF and their compatriots routinely like to assert that every day, everywhere, poor innocent uploaders are being damaged by DMCA takedowns on YouTube and elsewhere.  Give me a break.  The fact is that creators victimized by piracy, forced into the time-consuming process of sending DMCA notices to protect their work, FAR outnumber users victimized by erroneous DMCA takedowns.  According to the most recent numbers I could find (via Google’s transparency report) the company “removed 97% of search results specified in requests that we received between July and December 2011.”

I have to give the EFF and its well-paid attorneys credit though.  They have successfully made the victims into villains through an ongoing campaign of carefully crafted rhetoric.   Never mind the actual truth–that for every “bogus” and “absurd” takedown sent there are thousands that are legit.  Sadly it’s a fact that gets lost on most of the public and very likely some of the politicians considering copyright reform that were sitting in that room.

Hey YouTube! What about covering legal costs of creators who receive bogus counter-notices?

Yes Virginia, not every counter-notice in response to a DMCA takedown sent is legitimate.  It’s a fact that creators who send a legitimate DMCA notice, to remove full copies of a film from YouTube for example (no debate about fair use here) have received a counter-notice from the uploader.

I wrote about this specific scenario in a blog post “How DMCA Abuse Hurts Creators” in 2013. In this case the uploader had zero right to upload the film, but because she sent a counter-notice, YouTube put the full copy of the film back online.

tomboy-counter-dmca
This film was reposted (in its entirety) to YouTube after the uploader sent a counter-notice. The filmmakers’ only recourse is to go to court. Will YouTube cover those costs?

What now?  The only recourse the user has is to go to court.  Is YouTube willing to cover those court costs?  Will YouTube step up to protect rights holders whose work is ripped off on their site?  The answer is a simple, NO.

YouTube’s move is not about doing what’s right, or protecting legal rights.  It’s about protecting Google’s bottom line.  YouTube depends on fresh content to drive traffic to its site.  From a business perspective, it makes total sense to streamline that path from any speed bumps along the way, including those pesky copyright claims.

DMCA is broken
DMCA does not work well for creators trying to protect their work from online theft

The DMCA is broken, but not in the way the EFF would have you think.  It’s broken because it does a lousy job protecting the work of filmmakers, musicians, photographers, and authors.

Over these past few years I’ve written plenty on the subject so if you’re so inclined, you can a sampling of some of my other posts that explore why the DMCA needs fixing:

Dancing around DMCA Takedowns on YouTube 

Using DMCA to fight Ashley Madison hackers is poor use of copyright law 

Google lives on tech’s cutting edge–but in DMCA takedown Luddite-land

Why does Google play a DMCA piracy shell game? 

Does Chilling Effects make a mockery of the DMCA? 

Etsy uses DMCA “safe harbor” to protect photography pirates
Google and the Art of the DMCA Dawdle 

Google’s Blogger DMCA takedown procedures a hot mess

Everyone hates the DMCA

Is this really what Congress had in mind when it created the DMCA?

How DMCA Abuse Hurts Content Creators

Hollywood and Silicon Valley talk distribution, DMCA, and more during panel on piracy

The RIAA Explains Why DMCA doesn’t work

Nickel and Dimed to Death? Pirates Profit off DMCA Requests

Anti-copyright Astroturf gangs, fertilized with tech cash, suddenly sprout

Google’s downranking of pirate sites is a big, fat, LIE

Google’s 100 Million Takedowns-A Mess of its Own Making

Chilling Effects (still) makes searching for pirate links easy

Pirate Bay shut down-Is it a sign of progress against piracy’s “free for me” mantra?

Piracy for profit-YouTube’s dirty secret

Electronic Frontier Foundation (EFF) uses copyright law as censorship canard again

Google’s demotion of pirate search results earns a FAIL so far

Should we trust Google’s piracy report? Probably not….

Google gets called out (again) for its laissez faire attitude on piracy

Google’s “We fight piracy” Gobbledygook

Raise your hand if you’re tired of EFF tech-funded talking points

Google’s piracy profit machine continues unchecked
Busting Piracy on Google’s Blogger Barnacle Sites

Free Speech According to Google? Blackmailing Indie Music Labels Over YouTube Streaming?

Piracy’s Potpourri of Profit and Prevarication

Record Share Price Aside, Google Still has a Piracy Problem

Search Engines = G.P.S. for Online Piracy

How Google (Doesn’t) Fight Piracy

LGBT Cinema, Diverse Voices Quieted by Piracy’s Punch?

Google and friends spin search piracy study

YouTube’s Paid Channels are Here and a Counterfeit Cleanup is Past Due