Joho the Blog
An Entry from the Archives

(Thanks to Cory Doctorow for correcting my tentative gender guess (which I'd appended with a question mark). Apologies.)

Given spammers/phishers (disintermediators for senders of unwanted/unauthentic messages), I expect we'll soon see anti-competitive DMCA takedown notices.

For example when one YouTube broadcaster decides that they'd rather a competitor didn't have quite so much exposure, they'll simply engage spammers to send umpteen DMCA takedown notices as if from the competitor.

And then we'll start seeing "Dear YouTube, henceforth please ignore any DMCA take down notices purporting to be from us until further notice". And fake versions of that too.

Ultimately, the world will see sense:

1) If you publish something, you lose control over its further use and distribution. The only thing the public cares about is the truth concerning its authorship. They don't give a damn how culture spreads throughout the populace - if anything they care that they can share it without being put in prison for doing so.

2) If you have unpublished works, then yes, these can and must be protected from theft (and unauthorised publication).

That's about it really. Those are the natural laws we revert to once our unnatural privileges of copyright and patent face up to the laws of nature.

Thank you very much for publicising this story. (The link to my blog post seems broken, by the way. And the "Guidelines for commenting" link too?)

I just wanted to add a couple of things.

First, I've re-uploaded the "offending" videos so people can judge the fair use issue for themselves in case anyone tries to suggest that, even if the aim was stopping a suspected leak, the takedown notices were still justified because there was nonetheless a copyright breach. The links are at the end of my post.

Second, I've also written separately on the DMCA misuse issue. My key points there, mainly on takedown notices, are:

• Having to send in a counter notice just to get any info at all out of YouTube or whoever about why a takedown notice was sent seems a bit chicken & egg to me. There should be a way to try to resolve the situation amicably in grey area situations (e.g. is it fair use or not?) without having to file a counternotice first.


• If you know that someone deliberately sent a takedown notice targeting your material, how can you send in a counter notice saying under penalty of perjury that you had a "good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled"? It seems to me that, if you know it was maliciously done, you can't. The sender certainly made no "mistake" or "misidentification".


• If you need to remain anonymous for very good reasons (e.g. whistleblowers), you won't be able to send in a counter-notice either.

So, quite apart from your point about the victims of takedowns facing much bigger guns, the DMCA counter-notification procedure is itself inherently weighted too much in favour of the would-be censors.

Your point about knowing abuse of the DMCA is also interesting. If a big company has inadequate systems and controls to address suspected DMCA problems and an employee sends in a takedown notice for the wrong reasons, but genuinely not appreciating that they're not supposed to do that except for copyright matters, is that "knowing abuse" by the company? The employee? In that sort of situation, can they get away with saying hey it wasn't "knowing" guv?

I hope not, that would be disingenuous in the extreme, particularly as they'd have had to sign a statement in the DMCA notice about its being a copyright issue. I guess it'll take one big company being fined for this sort of thing before other big companies bother to put in place proper DMCA procedures.