Here’s how DMCA take-down notices work: Let’s say you post a video of a silent, purple, evening rainfall to YouTube under the title “Purple Rain.” Big Mean Co. owns the rights to Prince’s song of that name and notices your post’s title when it does a routine sweep of YouTube. It automatically generates a notice to YouTube saying that you’ve violated copyright. YouTube takes down the video and notifies you. Being a clever person, you go to ChillingEffects.org and send a counter-notification to YouTube, saying that your title actually has nothing to do with the Prince song. YouTube puts your movie back up.

But, the DMCA – the act that outlines this process – allows you to go further. In order to discourage the Big Mean Companies from using a “when in doubt, send a take-down notice” strategy, papering the YouTubes of the world with millions of false claims, you have the right to bring an action against Big Mean for damages. The question is: What are the guidelines for those damages? Will they be substantial enough to actually discourage Big Mean Companies? Or will they be so trivial that the “when in doubt, send a take-down notice” becomes the economically smart strategy?

Eric Goldman reports that a judge has ruled. Here’s my I-am-not-a-lawyer attempt to understand it.

In this particular case, Universal Music sent a take-down claim for a YouTube video of a baby dancing to Prince’s “Let’s Go Crazy.” The poster said the video was fair use. The judge agreed. Now the judge has ruled that the poster does not have to prove economic loss in order to get compensated for damages. And, Universal should pay the legal fees for responding to the takedown notice (i.e., telling YouTube that the video actually doesn’t infringe on copyright). But, if you decide to go further and sue for damages, it’s up to the judge (according to this ruling) to decide if the take-down notice contained “knowing and material” misrepresentations. Eric says, “most judges probably will exercise their discretion favorably towards a winning … plaintiff, but it’s not an automatic award.” And, if you lose, you could be ordered to pay the defendant’s legal fees.

Which means, as far as I can tell, that after you (the poster) get the takedown reversed and sue Big Mean for damages, unless you’ve suffered actual economic harm, the best you’re going to get is coverage of your legal fees (maybe). Plus, if you lose, you may be paying for Big Mean’s lawyers’ time.

Sounds like a victory for the “when in doubt” strategy and for Big Mean Companies everywhere.

 

I asked my friend Wendy Seltzer to check my explanation over. She says it’s basically right, but adds:

This ruling doesn’t change the basic calculation, that plaintiffs’ lawyers could take these cases on contingency and win their fees for a successful 512(g) complaint — it’s just under a different provision in the Copyright Act. Even regular copyright has a fee-shifting provision different from the standard “American rule” that parties bear their own fees and costs.

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Wendy Seltzer has posted an article that will run in Berkeley technology Law Journal (Jan. 25 2010) . In it she argues that the problems with DRM go beyond its failure to accommodate Fair Use:

The fair use debate is important, but it is not the only problem with DRM. Equally important, but thus far largely overlooked, is the impact on user-innovation and on the permitted development of media technology. Because DRM systems, by design and contract, must be hardened against user-modification, they foreclose a whole class of technology and mode of development. Moreover, this problem is distinct from that of fair use. Even if we could wave a magic wand and fully accomodate fair use in DRM, the incompatibility with user-innovation would persist, because it stems from a different and deeper aspect of the DRM system. Even the “fairest” DRM systems on the market today are unfair to the developers of new technology.

Anticircumvention law, backing TPMs [Trusted Platform Modules] and robustness rules, is fundamentally incompatible with deep-level user innovation…

Here is Wendy’s “Tell ‘em what you’re going to tell ‘em” paragraph:

First I briefly review the history and existing academic debates around DRM to consider why they have so overlooked the user-innovation impacts. The next sections examine the law and technology of digital rights management, particularly the interaction of statutory law, technological measures, and the contractual conditions generally attached to them. I focus particularly on the “robustness rules” in licenses at at this inter- section. I then introduce the rich literature on disruptive technology and user innovation, to argue that these copyright-driven constraints significantly harm cultural and technological development and user autonomy. I conclude that the mode-of-development tax is too high a price to pay for imperfect copyright protection.

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The RIAA has won a ruling that the DMCA‘s provision that forbids backward engineering software to see how it work applies also to musical recordings. The ruling forbids any attempt to figure out the melody, arrangement, or chord progression of any copyrighted song, whether that figuring out is done mentally, at a keyboard, or using software. It also forbids graphical displays based on the music, including the psychedelic visualizations that come with many music players or the tapping of feet to beats embedded in a copyrighted work. An exemption has been made for those with perfect pitch, although they are not allowed to transmit or communicate the internal structures of music that they have mentally decoded.

The RIAA has also announced that it will sue to protect all who claim unique musical contributions to the culture. As a result, Pat Boone now owns the Motown sound, John Lennon owns singing above one’s natural range as a way of expressing emotion, Cat Stevens owns singing below one’s natural range for the same purpose, and Van Morrison has been awarded custody of any two-chord song to which musicians improvise while high enough on marijuana that they think other people are enjoying it.

An RIAA spokesmen expressed delight with the ruling and the new set of protections: “We think we’re now within sight of producing the last two or three original songs, and then the entire culture can call it a day.”

[Tags: satire copyleft copyright dmca riaa ]

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TechDirt reports that some doctors are having patients sign contracts that say the patients won’t rate the doctor online. Worse, the contract assigns to the doctors the “intellectual property” rights for anything the patient may write about the doctor. So, if the patient rates or reviews the doctor on a public site, the patient has violated the doctor’s copyright. This then enables the doctor to issue a DMCA takedown notice to get the site to remove the patients’ review.

Copyright. What can’t it do? Wow.

[Tags: copyright copyleft medicine dmca ]

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In a comment to a distressing post about YouTube automatically taking down any video that contains any copyrighted material, even if it’s covered by Fair Use, a commenter posts a seemingly learned post explaining why “Happy Birthday” may indeed not be under copyright.

And to think of all the years I spent singing “For She’s a Jolly Good Birthday” instead!

[Tags: copyright youtube dmca happy_birthday copyleft ]

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Once every three years, the copyright office considers proposed exemptions to the DMCA’s forbidding of attempts to circumvent Digital Rights Management (DRM) protections. Yesterday at 5pm was the deadline for this cycle’s bids.

And there have been some really interesting ones.

Some Berkman folks have asked for the right to Hack the Dead, although they don’t put it like that. If you have software that checks on line to make sure you are authorized to use it, and if the company has now gone out of business, you can no longer use stuff you paid for. So, the Berkman team has proposed that in those circumstances, hackers should be allowed to hack your content free of the dead grip of the defunct business. Chris Soghoian, one of the petitioners, explains it well.

Chris also explains some of the other 18 requests for exemption, including an EFF (did you remember to join?) request to allow users to jailbreak their iPhones so they can run software that Apple has not approved, and a request to allow academics to hack DRM’ed DVD’s to make compilations that are legit under the Fair Use exemption.

Unfortunately, it’s likely that the copyright office will emerge from its three year slumbers, see its own shadow, and put its head straight back up its own rectum. [Tags: berkman crm dmca copyright copyleft eff chris_soghoian ]

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Here’s how the DMCA has worked so far: A copyright holder (henceforth “publisher”) notices an instance (henceforth “video”) of what it thinks is a violation of its copyright on a site such as YouTube (henceforth “YouTube”). The publisher sends YouTube a notice that the video infringes copyright. YouTube then has a choice: It can disagree that the video infringes, and leave it up, or it can take it down and let the video’s poster know that it’s done so. If YouTube chooses Door Number One, it becomes liable if a court decides the video really was infringing. So, inevitably, YouTube takes it down. The video’s poster can then counter-notify YouTube that the video is not infringing. (In this one example, YouTube’s lawyers will actually take a look to decide whether they think it infringes or not. But YouTube is very special in this regard.)

On paper, this seems reasonable. And maybe if the whole thing were done with paper, it would be. But the claims of infringement can be compiled digitally — publishers like Viacom automatically generate lists of every instance of, say, “jon stewart” in a video’s title and submit lists of over a hundred thousand URLs, obviously without having actually reviewed any of the videos — while the response is analog, and thus hard, time-consuming, and risky.

Now there’s been some good news.
A federal judge has ruled that before a publisher submits a DMCA takedown notice to a site like YouTube, some human being has to look at it to decide if it actually infringes, or if it is protected by Fair Use. If this ruling is maintained, it will help re-balance the insanely pro-publisher, pro-protection, pro-restriction copyright regime by taking away the incentive to take down anything and everything that looks like it might maybe perhaps upset a publisher’s delicate sensibilities.

PS: Did you remember to join the Electronic Frontier Foundation to help protect your online rights? [Tags: copyright dmca youtube copyleft eff ]

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The first in a series of three short videos from the Digital Natives project of U of St. Gallen and the Berkman Center that tells the story of Zack McCune, a Brown student (and Berkman intern) who “won the DMCA lottery” and was sued by the RIAA. It’s nicely done product by summer interns Nikki Leon and John Randall, and it’s a cliff-hanger…

[Tags: berkman st_gallen riaa dmca digital_nativescopyright zack_mccune ]

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