Wendy Setzler wanted to make a point about how she feels the NFL is overreaching with its rights under copyright law. She posted a 33-second video to YouTube highlighting the NFL’s copyright warning that aired during the Super Bowl.
Five days later she received her first DMCA Takedown Notice.
However, Wendy Setzler is not your normal YouTube user. A lawyer with the EFF and a fonder of the Chilling Effects Clearinghouse, Setzler was well aware of her rights under the DMCA and opted to stand up to the NFL to protect her fair use rights.
The case is an excellent example of not just how the DMCA can work to protect fair use, but also why it often doesn’t.
The Counter Notice Provision
The idea behind the counter notice provision, also known as 512(g) of the United States Copyright Code, is to ensure that both free speech and fair use rights are protected in regards to the DMCA’s notice and takedown provision.
The provision provides a means by which individuals that have had works removed under the DMCA can have them restored. To do so, the recipient of the DMCA notice simply has to file a counter notice, which is similar and structure and format to the original notice, that contains the following items:
- A physical or electronic signature of the subscriber.
- Identification of the material that has been removed and the location at which the material appeared before it was removed.
- A statement under penalty of perjury that the subscriber has a good faith belief that the material was removed or disabled as a result of mistake or misidentification.
- The subscriber’s name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber’s address is outside of the United States, for any judicial district in which the service provider may be found.
Once such a notice is received, the host is to replace the work within 10-14 days unless the party that filed the original complaint files a lawsuit in the district court mentioned above to prevent the reposting of the material.
In Setzler’s case, it’s clear that the NFL did not file any such action, otherwise the put back would have been halted. Whether the NFL realized its mistake or simply did not feel the matter worth suing is unclear, but the result is that YouTube is now in the process of putting back the infringing material.
A Rare Event
As someone who has sent out hundreds of legitimate DMCA notices, I have never seen a single counter-notice. My experience is largely mirrored by other sources, including Chilling Effects, that say that counter-notices are very rare.
The reasons for this are many, however some of them speak less than highly about the law:
- Most DMCA Notices Are Valid: Even though a decent percentage of DMCA notices have problems, the majority, at least two-thirds, are valid. Only a fool would file a counter notice when the copyright complaint is clearly legitimate, it runs the risk of turning an infringement not worthy of a lawsuit into one that is. Almost no one files counter-notices when they know they are in the wrong.
- Complicated Legal Issues: Most DMCA notices that do raise problems do so in the form of fair use, copyrightability and other gray areas that are confusing even to lawyers, let alone laypeople. Even if the issues are clear cut, creating and filing a counter notice is more complicated and more intimidating than filing a DMCA notice, a process that many already think to be beyond their grasp.
- Risk/Reward Issues: The risk of actually being sued for filing a counter-notice is slight, especially when little or no money is earned or lost. However, the cost and hassle of such a suit is very high and the benefits of putting up a fight are, for the most part, very low. Very few cases are worth really fighting over. Furthermore, it’s usually easier to just to move to another server than it is to attempt to duke it out over a DMCA notice.
The problems that this presents are obvious. If everyone filing a DMCA notice only did so when there was a clear infringement of rights, there would be no issue. However, some copyright holders, such as the NFL, have a tendency to overreach their bounds, trampling on fair use rights that are equally important.
However, the provision that was intended to defend against such attacks is, much like the DMCA itself, difficult to use, intimidating and, in some cases, not worth the effort.
This has contributed to give copyright holders with bad intentions a near impunity to trample on free speech and fair use rights whenever their work is used without permission. In some cases, it has had a very chilling effect on speech and has been used to silence critics.
Some Good News
The good news is that cases where the DMCA is intentionally abused to silence free speech are few and far between. The Scientologists have been accused of it in the past, as has Michael Crook and Diebold.
However, all of the cases were resolved in favor of the fair use and eventually, though often after a lengthy battle, resulted in the material being permanently restored.
Though very few copyright holders intentionally or negligently misuse the DMCA to silence controversial speech, the few cases where it does happen are both controversial and difficult. Most DMCA conflicts center around legitimate disagreements over legal gray areas, areas that should be resolved by a judge and, possibly, a jury.
Hopefully the intentional abuse of the DMCA will remain relatively uncommon and the continued victories for free speech in the courtrooms will likely spur that trend along.
After all, no company wants to turn a minor embarrassment into an expensive PR nightmare.
Small Webmasters who don’t have ready access to lawyers and the legal system need the DMCA notice and takedown provision, and laws like it, to protect their work. However, free speech and fair use demands that there be a way to prevent abuses of the DMCA or make them ineffective.
What it comes down to is that hosts, webmasters and copyright holders all need to be wise about copyright law and the DMCA. They need to know how it is designed to work and be prepared to use it to protect their rights, all of them.
If the DMCA is used as designed, false notices would become a moot point and the few that are false would be easily handled.
But what is most critical for copyright holders is to not file DMCA notices if there is a potential legal question. If there is any doubt about the legal standing of the notice, it is best to avoid it and instead try to work directly with the person reusing the work to come up with a mutually beneficial arrangement.
Cases of plagiarism, scraping and content theft are ideal situations for the DMCA, cases that raise fair use and free speech questions are not.
Simply put, the temptation to use the DMCA as a short cut to silence unwanted speech is both too great and too dangerous. We can not allow that to happen.
(Note: As of this writing, Setzler’s video is still in the process of being restored. YouTube did warn that it may take some time before the put back is final.)