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The internet is terrible at handling copyright takedown requests, so what can sites and content creators do to improve the DMCA takedown procedures?

  • Photojournalist Aaron Lavinsky recently took to Twitter after Universal Music sent the social media site a take down request of his 30 second clip of a gigantic crowd of mourners singing Purple Rain shortly after Prince’s death in April 2016. The Minneapolis Star Tribune employee explained that “DCMA takedowns are an important tool for artists who need to protect their intellectual property online, but a major corporation abusing [the] system to remove a news video shot by a newspaper photographer is inappropriate.” Fortunately, the company later retracted its takedown request. However, the case shows just how easy it is for large corporations to ignore fair use laws and abuse the DMCA’s copyright takedown procedures. Had this reporter not known the law and had the voice, audience, and platform to fight back, this important news report could have been lost forever.
  • Other reporters have noticed their content wholly reuploaded on LinkedIn and complained that the company fails to act quickly in removing obviously infringing material from its site. Den Howlett of diginomica.com found his article republished in its entirety on an account that did nothing but repost hundreds of other online news articles in their entirety. Eventually, LinkedIn removed the post and the account after multiple tweets back and forth between the original content creator and the social media site over a course of multiple days.
  • TorrentFreak released a recent report that impostors are manipulating Google’s search results in their favor by filing false copyright takedown requests against their competitors. By sending in a request to takedown a competitor’s site under the guise of being the original content creator, impostors are able to boost their own search results on Google. It is important to note that the DMCA only allows copyright holders and authorized third parties to file takedown requests, but the bad faith requesters have ignored this critical requirement to great and damaging effect.
  • The BBC is facing criticism that it used YouTube’s takedown regime to censor certain political messages. Earlier this month, the BBC sent takedown requests to YouTube that resulted in the removal of hundreds of videos uploaded by a pro-independence vlogger, Wings Over Scotland. The channel holds steadfast its belief that the videos fell squarely within the fair dealing exemptions to that country’s copyright laws. The user claims the BBC was acting with political bias in targeting pro-independence channels with takedown requests while allowing other political vloggers that shared its anti-independence values to use its content freely. The BBC denied this accusation and admitted to sending takedown requests for channels across the political spectrum. While this user’s defense is no where near as strong as the Purple Rain case above, the incident serves as an example of the fear that DMCA takedown requests may be used to silence certain political speech.
  • YouTube operates on a three strike policy which results in an entire channel and account becoming subject to termination after three copyright infringements – a system that many have suggested is subject to abuse and often results in improper infringement determinations. Paul Davids recently received a warning that he was infringing the copyright of his own song. Another YouTuber downloaded a track that he had uploaded, added vocals and a guitar riff, and reuploaded the improved song. Because the sites copyright detection system had determined Paul Davids’ video contained elements within the copycat’s video, Paul Davids received a warning for copyright infringement and was told that any money earned on his video would be redirected to the copycat. This type of thing happens frequently, many YouTubers suspect. In 2015, a YouTuber lost the monies earned from stock footage he uploaded and then licensed to Epic Records, after Sony sent the social media site a request to take down the YouTuber’s original content. Even Justin Bieber struggled to upload a new song after a fan beat him to hit in 2010.
  • Recently, YouTube launched its Copyright Match pilot program which identifies full reuploads of original content on YouTube and allows the original poster to review it and decide to take action. In its announcement, YouTube was already cognizant that the new tool would be rife with abusers. It warned that intentional or repeated misuse of the system, attempted probing, or reverse engineering would result in loss of the feature. The company is putting the fair use determination in the hands of the original creator who may then request YouTube remove the infringing content from its site. In a sense, the company is crowd sourcing its copyright infringement prevention procedures back to the content creators themselves. However, some content creators have already criticized YouTube for keeping this and similar services in the dashboards of only a selected few. Others have suggested that this and similar tools are too risky – as the tools often result in unfair content deletion or channel removals. If the program is successful, its not hard to see how this regime could easily be expanded on YouTube and implemented across other social media sites like Facebook, Twitter, and Instagram as well as blog and web-hosting services.

About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby attended the University of Florida Levin College of Law in order to pursue an in-house legal career at an entertainment or media corporation. He has interned at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He graduated in May 2018 and sat for the New York Bar Exam in July 2018.


 

New Cases from the Internet invoking IP and Media Law #3

  • Another Rich Man Sues a Website after Bad Press. In a case that is reminiscent of billionaire Peter Thiel financing Hulk Hogan’s suit against Gawker after the site outed Theil as gay, game developer Jonathan Monsarrat is suing Encyclopedia Dramatica for publishing a wiki-page which cited to stories accusing the millionaire of creating a dating service to collect information on women and allegedly distributing alcohol to teenagers. (This is not the first time Monsarrat has sued a site that published unflattering stories about him. He previously sued a LiveJournal blogger that posted a story about his arrest in 2010. Monsarrat later dropped that case after it became clear that it was brought in bad faith.) The newest suit claims Encyclopedia Dramatica infringed on Monsarrat’s copyright in quotes from forum posts and a photo of Monsarrat in a beaver costume. Encyclopedia Dramatica believes this suit was also brought in bad faith. Follow this case for potential anti-SLAPP litigation, for insight on the recent trend of websites being sued by the rich for publishing unbecoming stories and on the recent trend of websites crowdfunding legal defenses.
  • Spotify Sued after Struggling to Obtain All Necessary Music Licenses. Amongst rumors that the company plans to launch on the NYSE, Spotify was recently hit with two copyright infringement lawsuits (here and here). Spotify has deals to license the sound recordings and other licenses to publicly perform the songs, but songwriters and music publishers are suing for unauthorized use of the song compositions. The streaming service sends out notice of intention letters as required to attain Section 115 compulsory licenses from the songwriters and publishers, but argues that finding each of the co-authors of their entire catalog is too hard a task. Spotify has settled similar cases in the past for tens of millions of dollars. Keep up with these cases to remain fully aware of the development of mechanical licenses in the age of the internet and for insight on class action lawsuits that involve IP infringement.
  • Requesting Access to Social Media Accounts in the Hiring Process. A new lawsuit alleges NBC demanded prospective employees share their personal social media accounts before being offered an interview. Half the states ban prospective employers and universities from requesting access to a prospective employee’s personal social media accounts. Although requesting social media access is not prohibited during the hiring process in New York, providing access to personal social media accounts could potentially reveal protected Equal Employment Opportunity information such as age, religion, and medical information.
  • Sci-Hub Sued Again for Providing Free Access to Scholarly Works. Hoping to mimic a $15 million award for a similar plaintiff in the Southern District of New York, the American Chemical Society is suing Sci-Hub under copyright and trademark law for spoofing the ACS’s website and provided access to over 62 million academic publications (which are published by a collection of sites including ACS, Elsevier, Springer, and more.) Some academics believe the publishing sites are unlikely to receive any of the awarded damages, since Sci-Hub is run out of Russia under a variety of domain names and IP addresses. Other academics, however, intend to use these case as inspiration in their protests against the publishing sites for affordable access to academic publications. Follow this string of cases for insight on collecting damages from defendants overseas and for trends in the licensing of scholarly works.
  • Jenner Shirts Inspire Social Media Outrage, Lawsuits, and Satirical Copycats. Kendall and Kylie Jenner received a cease and desist letter for use of The Doors’ likenesses, after the reality star sisters released a line of $125 t-shirts with the images of the band and other musical icons including Tupac Shakur, Metallica, Pink Floyd, Ozzy Osbourne, and Biggie Smalls. The family of the Notorious B.I.G. took to Instagram to declare that the shirts had no affiliation with or approval from the rapper’s estate, while Sharon Osbourne sent out a tweet critical of the girls’ decision to include her husband in their fashion line. After only two shirts were sold, the line was pulled, and Kendall Jenner tweeted an apology. The photographer behind the Tupac Shakur images is now suing the sisters for copyright infringement, but the Jenner sisters claim to have a valid license for the images. (Shortly thereafter, the rock band Arcade Fire satirized the shirts by making their own versions to mock the Jenner sisters, followed by an apology tweet that mimicked Kendall’s own tweet.) Separately, Kylie Jenner is being sued for copying an artists’ painting of biting lips for an advertisement promoting her upcoming show, Life of Kylie. Keep up with these case for more tweets from celebrities attempting to sound like lawyers.
  • @realDonaldTrump Faces a #realLawSuit after Blocking Twitter Users. The Knight First Amendment Institute at Columbia University is representing a flock of Twitter users who have been blocked by the President’s account. The suit claims @realDonaldTrump is a constitutionally protected public forum and that blocking users unconstitutionally prohibits access to government statements and unconstitutionally prevents petitions for redress of grievances. In a similar case, the United States District Court for the Eastern District of Virginia ruled that a Facebook user’s constitutional rights were violated when a county official blocked his account. Separately, a photographer is suing the Trump Organization for copyright infringement after the company posted the photographer’s copyrighted work on its site and the @realDonaldTrump Instagram account. Follow these cases for insight on how Trump critics are using the First Amendment and IP law as a check and balance against the President.

About: DJ turned JD highlights the latest legal updates in the entertainment and media industries, intellectual property, the internet and social media. The blawg is compiled and curated by Bobby Desmond. After working as a radio personality, Bobby enrolled in the University of Florida Levin College of Law with hopes of pursuing an in-house legal career at an entertainment or media corporation. He has held legal internship positions at PBS with America’s Public Television Stations in Arlington, VA and at AMC Networks in New York, NY. He expects to graduate in May 2018.