Don’t Blame the DMCA for Tumblr’s Policy

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Tumblr logoLast week, the Tumblr community was shocked to learn that The Coquette (Coketalk), an pseudonymous advice columnist/blogger who was one of the site’s biggest stars, had her sites closed down due to copyright violations.

The author, who not only has a book out but also has had her work featured in a variety of mainstream publications, not only had her main account deleted, with all of its blogs, but her backup account as well, essentially erasing nearly all of her work from the Web.

Coquette took to Twitter to vent her frustrations, saying that her blogs were deleted because of Tumblr’s strict three strikes policy and that the decision was final and could not be appealed.

According to The Coquette, the issue centered around music that she had posted years ago and that the notices went to an old email account.

This issue drew so much controversy that David Karp, the founder and CEO of Tumblr, eventually took to his blog to address the issue, saying in part:

In Coketalk’s case, we repeatedly warned her not to post unauthorized copyrighted material (all music posts in her case) and offered to walk her through the issues by phone last year. She declined to counter-notify the notices that she received on her account, which would have rolled those strikes back. We unfortunately received a third notice against her account yesterday, and were required by law to terminate all of her accounts.

While there seems to be some discrepancies between the stories on what exactly happened, many of the points that Karp makes about the Digital Millennium Copyright Act (DMCA) are completely and demonstrably false.

Tumblr’s policy is not required by the law and it isn’t even industry standard for sites like it.

In short, though Karp is quick to tell you to “Reach out to your House Rep and Senator and tell them you want copyright reform that addresses issues like this,” it was Tumblr’s policy that was ultimately to blame.

What the Law Says

The DMCA is a large, multi-faceted and complex law. But the portion we are interested in to day is the safe harbor provisions, which provides sites like Tumblr with legal protection for when their users upload infringing materials.

Basically, the law says that sites like Tumblr are not liable for copyright infringement by users so long as they remove allegedly infringing material after receiving proper notification and, most important for this story, have a policy for terminating repeat infringers.

Specifically the laws saws as follows in §512(i)(1)(A):

The limitations on liability established by this section shall apply to a service provider only if the service provider has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers

To be clear, this repeat infringer policy is extremely important. The music streaming service Grooveshark repeatedly claimed protection under DMCA safe harbor but a judge found its repeat infringer policy did not meet up to the standards of the law, denying them that protection. It was a big part of why Grooveshark closed (though it didn’t help its own employees were uploading infringing material).

However, the law itself is very, very vague about what this policy should look like. As you can see, it makes no mention of a three strikes policy being required. Just that the company must have such a policy and it must terminate repeat infringers. Who is a repeat infringer is how the policy is enforced is, left up for the hosts and the courts to decide.

Looking back at the Grooveshark case, the court acknowledged that courts have recognized a “wide range of procedures and practices for implementing a repeat infringer policy” and that plaintiffs must meet a “high bar” to show that a repeat infringer policy is inadequate. To do that in the Grooveshark case, the record labels showed that, despite millions of notices, Grooveshark had never terminated a repeat infringer’s account, meaning that they effectively didn’t have such a policy.

In short, courts have repeatedly found that there is a great deal of flexibility in how providers can offer a repeat infringer policy and, while Tumblr’s strict “three strikes” regime is definitely one such way, it’s far from the requirement that Karp says it is.

In Karp’s post, when he says “I badly wish we had more flexibility in these cases,” he should be relieved to know that he already has a great deal of flexibility to implement a “wide range of procedures and practices,” no further legislation required.

The Standards When it Comes to the DMCA

To be clear, Tumblr did do several things correct.

  1. Removing the Files: Tumblr did the right thing by removing the allegedly infringing music files. The law requires that and Tumblr complied.
  2. Declining Counter Notice: It’s unclear if Coquette attempted to file a counter notice or not, but she has said she wouldn’t if she can’t remain pseudonymous. The law has strict requirements for what should be in a counter notice and filing one anonymously is not possible as it requires the subscriber’s name, address and other info (since the whole purpose is to make it possible for the infringed to serve legal papers if desired).
  3. Working with Coquette: According to Karp, they attempted to reach out and work with Coquette “last year” via phone, which is actually above and beyond what most hosts would do.

It’s also fair to say that The Coquette shouldn’t have been posting infringing material. Even if she had been able to file a counter notice pseudonymously, it’s unlikely that such a notice would have been applicable. A counter notice is intended for when legitimate content was mistakenly removed, not for putting back infringing material.

After the first and/or second notice, Coquette could have taken the opportunity to remove all potential infringement triggers from her blogs, including other songs. If the notices truly went to an old address as she claims, then she should have worked to keep her contact information up to date with Tumblr for exactly these reasons.

But, all of that being said, there’s no grounds in the law for saying that Tumblr had to ban her.

YouTube, for example, has a rolling copyright strike system. With it, if you receive a strike, you can attend YouTube Copyright School and, after six months, the strike rolls off. Though there seems to be some confusion as to when Coquette received her notices, most likely, under such a system, her account would still be active and probably only have one strike against it.

Remember that YouTube was sued for over a billion dollars by Viacom, if this repeat infringer policy were inadequate under the law, it’s almost certain other lawsuits would have happened.

Other sites have different repeat infringer policies. Automattic doesn’t share details about its policy but in my personal experience does not have a hard three-strikes policy for WordPress.com, a service functionally similar to Tumblr. Yahoo, which owns Tumblr, doesn’t have a set number of strikes in its policy.

The only site I was able to find in my (admittedly brief) searching that has a strict three-strikes policy was the user generated porn site Xvideos (SFW link but NSFW site).

In short, a strict three strikes policy is not only not required, but it’s not even the industry norm. Other sites have adopted much more flexible standards and none are being held liable for infringement under the DMCA.

So Why Three Strikes?

strikeout-299-sizedIf the law doesn’t require three strikes, then why would Tumblr turn to it?

The honest answer is that I don’t know. I’m not privy to the ongoing behind the scenes at Tumblr and, though I’d be happy to work with them (or anyone else) if they want my help, I have no inside information as to why they chose this route.

Typically though, when I see sites chasing such “hard line” policies, it’s out of simplicity. It’s much easier to maintain and enforce a bright line rule like “three strikes” than it is a more nuanced policy. Nuance allows allegations of hypocrisy and favoritism. After all, if Coquette had gotten a pass but other Tumblr users had not, that could have created a scandal all its own.

It is possible to craft policies that are flexible and still provide clarity, as with YouTube’s, but that requires a great deal more work. However, Tumblr only recently found itself in the piracy spotlight and, to be frank, seems to be unprepared for what’s hit it.

Though it’s quick to remove alleged infringements, meaning its abuse team is working well, it’s policies seem to show a lack of planning, which came back to bite them in this case.

Bottom Line

Tumblr is correct that the DMCA does require that they have a repeat infringer policy but they are wrong to say that such a policy must be a strict three strikes policy. The law has long allowed for a very wide variety of repeat infringer policies and very recent court rulings have only further codified that fact.

For Tumblr to blame its decision to ban Coquette on the law is, in a word, disingenuous.

For Coquette things seem to have worked out ok. She was able to get Tumblr to provide an offline backup of her content, which she was able to use to relaunch her site, which is now based on WordPress and hosted outside of Tumblr.

She, I have no doubt, will be fine.

However, for the sake of other Tumblr users, I encourage the company to reevaluate its three strikes policy and try to find one that balances the interest of rightsholders and users, especially long term ones.

If they are unable or unwilling to do that, then I ask them to please stop blaming the law, which provides them with other options.

While the DMCA certainly has its flaws, Tumblr’s policy is not the product of one of them.

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