back to article DMCA takedown bots must respect 'fair use' of copyright – US appeals court

The concept of "fair use" of copyrighted images and music has been given a big boost in a decision this week by the California Appeals Court (Ninth Circuit). The court ruled that music and film companies need to take into account whether their material is being used legally before issuing DMCA takedown notices. In doing so, …

  1. Proud Father
    WTF?

    Automated takedown notices...

    ...should not be allowed. They go against the principle of "innocent until proven guilty".

    You have to prove the infringement occurred before demanding action.

    1. alain williams Silver badge

      Re: Automated takedown notices...

      Simple way of stopping this: each take-down notice must be accompanied by a $50 bond that will be paid to the web site owner if the take-down notice is successfully appealed.

      Even better if they want an immediate take-down (pending a decision) then the bond is $1,000; if they accept no take-down until an appeal (with a fortnight non appeal timeout) then $50.

      Note that none of this costs the copyright holder if they make legitimate take-down notices, but goes a small way to compensating legitimate fair users for the hassle of an invalid take-down notice.

    2. Tom 13

      Re: Automated takedown notices...

      No, with the proliferation of actual infringement I don't have a problem with automated systems for the initial notice. The problem is that as soon as the ISP/website/poster objects, it needs to turn into something that involves people who aren't function the same way the automated notice was issued. But I also think the use of automated notices should open the people who use such systems to more serious damages if they are found to have poorly implemented tests for fair use. That is, if the automated notice is found to be in error, ALL notices sent by the system should be null and void and the company should have to pay the costs of correcting the problem including damages to EVERYBODY who was adversely affected.

      If I read correctly, the earlier proceedings did issue an award. I do think the court erred in NOT mandating the award be paid immediately or at least bonded over to the plaintiff.

  2. Mephistro
    Mushroom

    So, they can have a battery of servers running DMCA bots searching for infringing content...

    ... but they can't hire a bunch of guys to check the supposedly infringing content before sending the DMCA takedown requests???

    And when one of these takedown notices was contested, again they didn't bother to task some human with checking the content???

    And that the legal proccess has lasted almost 9 years???

    How is it even possible that the fuckers rights holding company doesn't have to pay -not only the damages, but also all the court costs incurred???

    1. Mephistro

      Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

      Afterthought:

      They don't even need to hire lawyers to do this 'manual checking. Some guys of average intelligence with a sheet with a printed diagram of the "four fair-use tests" referenced in the article should be more than enough.In the case in a million where the evidence or circumstances are so convoluted that they could have a doubt, then they could start bothering the company's legal counsel.

      Or alternatively doing a rota with their own employees, so each employee has the opportunity to filter videos for two hours each week, or once a month. Most people I know -me included- would love to volunteer for this task.

      1. Grikath

        Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

        I'd hold on that afterthought Mephistro..

        While a human check against the 4 points should be mandatory, even when the algorythms can filter out 99.9% of proper fair use cases, you're effectively sentencing people to watch whatever-hits-the-bell on YouTube.

        Some people would call that cruel and unusual punishment...

        1. Mephistro
          Happy

          Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

          "...sentencing people to watch... YouTube ... cruel and unusual punishment"

          Having a chance to substitute one hour or two of 'real work' for watching funny/stupid/interesting videos? If the company does it right, volunteers would pile up for the chance. Keep the chances low, as to increase the 'value' of the 'recompense' and make it - for those who have volunteered- compulsory. It would even improve the staff's morale!.

          Blame it to some degree of masochism in most humans, if you want. ;-)

      2. Anonymous Coward
        Anonymous Coward

        Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

        "Or alternatively doing a rota with their own employees, so each employee has the opportunity to filter videos for two hours each week, or once a month. Most people I know -me included- would love to volunteer for this task."

        People like you are the ones I remove from the job. Advocating trivial tasks (watching videos) as something you'd want employees to do, and worse, that it would be a job you'd love to do marks you out as someone with a low value skill set and someone who wants to get paid for completing such mindless activities.

        Such people should not be in charge of coming up with ideas and certainly not responsible for implementing them.

        I'd be looking for people who could solve the more complex task of developing the algorithm which could be used to automate the process of determining fair use following basic content discovery.

        I am certainly not in favour of bots which automate the sweep of content, issuing takedown notices with zero cost or repercussions when they get it wrong.

        1. Mephistro

          Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

          "People like you are the ones I remove from the job... that it would be a job you'd love to do... marks you out as someone with a low value skill set..."

          Hello, AC!

          There are several studies that show how routine kills productivity and creativity in the workplace. If you hire people just to watch videos, they'll probably go in full auto-pilot mode -or go postal- after a few weeks (or days) of work. A rota -or even better, a lottery- among employees who have volunteered for the task would improve both the quality of the filtering and the workspace morale, for the cost of a few hours per employee each year.

          Would I love to do that job? Yes, bu ti saly will never happen, as I'm a freelancer. Being a freelancer means that companies only pay my (quite steep for a "low value skill-set") hourly rates when they need to. In my position, being a freelancer also takes care of the issues caused by routine.

          "I'd be looking for people who could solve the more complex task of developing the algorithm which could be used to automate the process"

          Algorithms will only take you so far, more so when trying to tag correctly images,video and audio streams and understand the context. One day the technology will allow some computer to lower the % of false positives to, say, 0.001%, but even in those hypothetical conditions a human in the loop may prevent the company from receiving some very damaging PR backlash.

          "I am certainly not in favour of bots which automate the sweep of content, issuing takedown notices with zero cost or repercussions when they get it wrong."

          Then, in the current state of technology, and hard AI/SF scenarios aside, how would you go about it? Firing the staff charged with filtering false positives every two months and hiring new ones? For obvious reasons, that wouldn't work. You'll have to think harder.

        2. Toastan Buttar

          Re: People like you are the ones I remove from the job.

          You don't have the power to remove anyone from any job. You are a teenager with a small penis.

    2. Alan Brown Silver badge

      Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

      "... but they can't hire a bunch of guys to check the supposedly infringing content before sending the DMCA takedown requests???"

      If they did, they might spot the copyright claims over material which isn't theirs in the first place.

      DMCA allows perjury penalties for this kind of claim, but Big Media use the Chewbacca Defence to sidestep it.

    3. Tom 13

      Re: So, they can have a battery of servers running DMCA bots searching for infringing content...

      Oh, I expect a fleshie did review it when they got the notice it was being contested. I expect the problem is the fleshie was even more of an automaton than the computer was.

      Given the number of appeals, 9 years is about what I'd expect. It's also one of the big problems with our legal system at the moment. The problem is, for as much as loser pays sounds good in a case like this, the deck is so stacked against the little guy that such a proposal would likely feed the trolls instead of deterring them.

  3. Anonymous Coward
    Anonymous Coward

    "a Universal legal assistant was tasked with scouring YouTube for songs by Prince"

    And someone sued them? I would have sent them a thank-you note.

  4. Anonymous Coward
    Anonymous Coward

    Prince

    Wasn't that the artist¹ that was formerly known as the artist formerly known as Prince?

    ¹ Or closest equivalent.

    1. Captain DaFt

      Re: Prince

      The artist formerly known as Prince, currently known as "Who?"

      1. earl grey
        FAIL

        Re: Prince

        I had a nigerian prince contact me once about millions in a special account and all i had to do was provide some easily obtained information and it was all mine. turned out to be another scammer.

      2. Tom 13

        Re: currently known as "Who?"

        Not at all. The Who are actually a decent group.

        1. Michael Wojcik Silver badge

          Re: currently known as "Who?"

          And if it weren't for The Who, think how dreary the CSI franchise would be.

          Sorry, "drearier". I meant "drearier".

          (Sometimes I think the only thing preventing Yet Another incarnation of CSI is the difficulty of drawing an association between crime-scene forensics and "Pinball Wizard".)

    2. Tom 13

      Re: Prince

      Yes but only until his exclusive contract with whichever pigopolist it was expired. As soon as the exclusivity expired, he went back to being Prince.

      Yep the whole damn thing was just two wankers proving who was the bigger wanker.

  5. Mike 16

    Fair use?

    How about making it a requirement that the person filing a takedown as the rights holder ACTUALLY HOLD THE RIGHTS?

    1. Tom 13

      Re: Fair use?

      Universal actually had the rights.

  6. frank ly

    Excuse me?

    "The majority noted that automated systems are able to account for fair use before sending out takedown notices, ..."

    How the heck can they believe that?

    1. Ole Juul

      Re: Excuse me?

      "The majority noted that automated systems are able to account for fair use before sending out takedown notices, ..."

      How the heck can they believe that?

      Because they're sleazebags just like the Universal Music Group who claimed that:

      "fair use" was something others would need to use to argue against a takedown notice

      Actually, sleazebags doesn't even begin to describe a company with such an outstanding lack of social concience.

    2. Stevie

      Re: How the heck can they believe that?

      Because they are computer-unsavvy and like all such people believe that Trektech is real.

      I mean, the computer on the USS Enterprise == Siri, no?

  7. FozzyBear
    Mushroom

    Seriously

    Why haven't the lawyers and executives for UMG been dragged outside the courtroom and publicly flogged

  8. Anonymous Coward
    Anonymous Coward

    A fair point

    I listen to all my Prince music while watching youtube videos of kiddies dancing.

    That is: None.

  9. King Jack
    FAIL

    Retarded logic

    Somebody makes a game pays the 'rights holder' money to use their music in it. A gamer posts segments of the game on Youtube but has to silence the sound track, thereby negating any chance of somebody hearing the music and purchasing it. This is one of the reasons I stopped buying music. The Internet is full of free radio stations. The sooner copyright abuse dies the better.

  10. Brent Longborough
    Holmes

    All it needs

    is to start enforcing the bit that says "under penalty of perjury".

    1. alain williams Silver badge

      Re: All it needs

      Then the jails would fill up with robots that had sent out misjudged DMCA take-down notices.

      1. Vic

        Re: All it needs

        Then the jails would fill up with robots that had sent out misjudged DMCA take-down notices.

        That would work. Send a duff DMCA takedown - lose a server. Pretty soon, economics would make them look at the job properly...

        Vic.

  11. John Robson Silver badge

    There was music in the background?

    Had to add another view for the music companies to get in a lather about - but really - was there music there?

    Automated notices should be rejceted by an automated system, which asks for evidence of said infringement...

  12. Pascal Monett Silver badge
    Facepalm

    music companies should not be allowed to "rely solely on a computer algorithm."

    Finally, after a decade of passing through the system, a drop of common sense is filtered through the labyrinth of the legal system.

    And then we learn that it changes nothing.

    Hopefully, in future, this case will become a landmark decision and reversing DCMA takedown notices will be easier.

  13. Anonymous Coward
    Anonymous Coward

    It's quite simple

    Anyone who illegally uses copyright protected materials shall be punished. It's not unreasonable to send out automated notices to those who use known websites that illegally host copyright protected works. Anyone receiving a notice is obligated to prove they are not pirating or distributing.

    1. Bucky 2

      Re: It's quite simple

      Quite the opposite.

      I'd argue that the rights holders certainly have the right to issue a takedown notice for probable cause (a suspicion).

      However, if the notice is contested, it's the rights holders that need to prove the infringement beyond a reasonable doubt. In a free nation, it is considered unfair to be required to prove your innocence every time someone opts to accuse you of something.

  14. Tom 13

    Re: has been given a big boost in a decision

    Meh. Not so much.

    That's the problem with being the most overturned Appeals Court in the land. Even when you render a good decision, your history makes your decision suspect.

    I have to say that seeing it was Prince behind this, I can't say I'm surprised. For someone who fought the pigopolists so viciously, he's turned into quite the pigopolist himself.

  15. HellOnWheelz

    Why? Because we are entering election season.

    It notes: "Heated political campaigns have historically led to a rash of copyright takedown abuse."

    This is a problem for livestreamers on Youtube, A "hard takedown" via DMCA, even if successfully challenged, results in the inability to livestream from the affected account for 6 months. This effectively silences established streaming accounts.

    Political speech is supposed to be the most protected speech in the US. However, this season the 2 major parties (DNC, RNC) have sold the exclusive rights to broadcast the presidential candidate primary debates to corporate media. These debates, previously open to all viewers and non-monetized re-broadcasters via government subsidized media (PBS, C-SPAN), are now only open to those with the wherewithal to afford $200/month cable and (even then) may be subject to blackout in some areas.

    The CNN DNC debate in September also demonstrated the frightening additional dimension of intentional corporate spin. After issuing DMCA take downs of all unedited versions of the debate on Youtube - CNN edited the "official version" in a manner that allowed them to push (and control) a specific corporate narrative.

    Thankfully, unedited versions existed offline and were pushed out via torrent.

    This is just one example of how DCMA is currently being used to subvert the US political process.

    George Orwell, anyone?

POST COMMENT House rules

Not a member of The Register? Create a new account here.

  • Enter your comment

  • Add an icon

Anonymous cowards cannot choose their icon

Other stories you might like