You either have 100% certainty you are the rights holder and 100% accuracy, or you’re abusing the system. Full stop.
Give each rightsholder ten freebies per platform or whatever, but they should sure as hell be 100% accurate.
Sorry, but how can you be 100% certain in a system where fair use exists?
Now, if I submit a DMCA notice against a Star Trek review (that has no Star Wars clips), that's an entirely different thing.
I think we should be extremely harsh on the latter.
Again, this is separate from the fair use question. I'm saying if the owner of Star Wars files a DMCA notice against some guy reading Hamlet in an empty room, we should have little patience for that.
It seems like it could only confuse the discussion, and passing readers, and not help in any way.
Here's a sketch: an automated system finds (alleged) copyright infringement, a human watches the content to check if it does in fact contain e.g. Star Wars, a second human finds the matching content in their library, and a third human verifies the work by human 1 and 2 and writes up the DMCA notice.
The current system seems to have zero penalty for submitting false DMCA notices, imposing significant costs on anyone a rights-holder decides to target.
What's your proof that such a system has been realized anywhere on the internet, with a '~100% certainty' rate?
Or is this entirely conjecture?
The copyright/DMCA notice system currently has a lot of Type 1 (false positive) errors, because it costs rights-holders nothing to send a notice. Lots of legitimate and non-infringing videos/content/urls/sites are getting taken down because of absolute bullshit.
I'm suggesting the world would be better if we moved to a system with more Type 2 (false negative) errors; where occasionally an infringing piece of media is left up, but we see fewer false positives.
If literally zero types of information have such a system set up, then there simply is no reason to believe it will actually work in real life.
Unless you have some comprehensive proof or analysis that incorporates all known, real world, factors?
Yes, on real-world data, on a first pass, I doubt you'll get >99% accuracy. But you don't need to; you can do (something like) three passes, that each have ~98% accuracy, and the end result has effectively zero errors (of the type we care about).
Here's a system, in the real world, that does this currently: blood donation screening. We very much don't want HIV (and other pathogens) in the blood supply. So first pass - donors are screened out, based on various risk factors (risky sex, IV drug use, lived in certain areas, whatever). Second pass - antibody testing. Third pass - antigen and nucleic acid testing. If ANY of these register as 'likely to have HIV' the blood is rejected. In my country (Canada) this has meant zero instances of HIV transmission through donated blood. 100$ effective - but we have surely thrown away (or not collected) blood that was perfectly fine. That's the cost. But it works, in the real world, very, very well.
We could absolutely demand a similar level of accuracy for DMCA notices - the cost will be a) additional work for rights-holders and b) some infringement will be missed.
And that even if an actually working system is set up, there's no guarantee it will still be functioning, as designed, past the first few days.
But even getting to the initial stage is already pure speculation, unless you have convincing proof/analysis. Considering that it needs to be accepted, and physically implemented by a real world government, not some hypothetical government of the distant future.
If they wouldn't be penalized, why? If it's because Disney owns the rights to Star Wars, how would that be discovered? Making a complaint when you don't have a good faith belief you own the copyright to it already caries the penalty of perjury. Would the cost of this new penalty be more than that?
If they would get penalized, then how is the existence of fair use not relevant as far as the risk to copyright holders is concerned?
Not quite right. Using work without permission is not the same as infringing on the copyright on the work, and a DMCA is a claim of infringement. Fair use can only be used as an affirmative defense, as you noted; only a court decides whether a use of a copyrighted work is fair use. But formally, fair use is not infringement according to the Ninth Circuit in Lenz v. Universal Music Corp. (2015) [1]:
> "Because 17 U.S.C. § 107[9] created a type of non-infringing use, fair use is 'authorized by the law' and a copyright holder must consider the existence of fair use before sending a takedown notification under § 512(c)."
Not that the Lenz ruling helped very much in practice. To meet the Lenz standard, the sender of the DMCA notice can claim in court that they believed in good faith that the use of the copyrighted work was not fair use. The only part of the initial DMCA notice that the sender writes under penalty of perjury is the claim of being the copyright holder or someone authorized to send the notice on behalf of the copyright holder [2]:
> (3)Elements of notification.—
> (A)To be effective under this subsection, a notification of claimed infringement must be a written communication provided to the designated agent of a service provider that includes substantially the following:
[omitted]
(vi)A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In contrast, a party sending a counter notice - which they might be too intimidated to do in the first place, and otherwise happens before the rightsholder initiates court precedings - must dispute the initial DMCA notice under penalty of perjury [2]:
> (3)Contents of counter notification.—To be effective under this subsection, a counter notification must be a written communication provided to the service provider’s designated agent that includes substantially the following:
[omitted]
> (C)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 of the material to be removed or disabled.
The safest response by far for the recipient of the DMCA notice is to resign from contesting it i.e. let the service provider permanently remove the material.
[1] https://en.wikipedia.org/wiki/Lenz_v._Universal_Music_Corp.
> The notice listed three URLs which needed to be “disabled immediately” along with a statement that the “information in the notification is accurate.” Unfortunately, we were unable to comply with the takedown demands because the URLs provided were not for TorrentFreak.com but an entirely different domain that we’d never heard of, under someone else’s control.
I don't consider that a reasonable disagreement, I consider that a bogus claim.
If they made the effort to remove that information why assume they left the contact info?
Either way this absolutely wasn't a case of fair use. They sent the claims to the wrong people.
I'm aware, but I don't see how that's relevant to these comments. Someone proposed a system to help with this problem (requiring a fee to file a takedown), and now we're discussing the issues with such a system. Those issues extend beyond the cases discussed in the article.
If you're a tiny rights holder, you may have produced a single song and are trying to make sure others pay you for use - but you may not be able to afford or understand what legal review you need.
If you're a major rights holder, you may have so much content to protect that is so wildly popular it is impossible to review manually. But automated review with 100% accuracy is not possible.
DMCA in many cases is not fair, but I don't think we as a global society have much of a shared view of how to handle digital creative content. Ease of digital replication doesn't match how much we generally value creative content.
Maybe companies shouldn't own copyright to a million different IPs then? If you don't care enough about it to manually review it then you shouldn't get to take it down.
Manually review cases where it's actually worthwhile.
To clarify, whether or not you can as an organization turn a profit, is whether or not you get to own a piece of IP? How much profit is an owner of IP allowed to have? How much should an artist get paid? I don't think I could ever limit/define that.
The discussion centers around automated tools to detect infringing content. These tools are not 100% accurate and may cause false positives. I am of the opinion that issuing takedowns on false positives should come with consequences.
If an artist wants to enforce their copyright on every case of infringement, no matter how minor, they're welcome to do so. Where I take issues is issuing takedowns because an automated, unreviewed system flagged the content, and no manual review took place.
Automated review puts the onus on the secondary content creator to prove that their work is not infringing in response to bogus requests. They must take on the cost in time and energy to do so. The cost should be on the copyright holder, and if that means automated reviews are not economical, so be it.
Keep in mind even if you have and ideal 100% success rate on claims, recovering 100% of the deposits, it's still going to be thousands and thousands of dollars which used to be liquid now relegated to holding up the revolving door claims processing fees. Anything less than 100% just starts to make it an actual money pit instead of a financial annoyance.
So even a small time rights holder who is losing sales (right? Right? Because that is what this is all about right?) should be happy to pay 100USD or whatever to ensure that they get all those thousands and thousands of lost sales that supposedly they lose from pirates.
To those 10% you were absolutely wrong. Why should they suffer because you were "mostly right" with other people?
As for amount of suffering an actual DMCA counter notice is an extremely easy thing to provide. What sites like e.g. YouTube do instead via backdoor agreements with IP holders outside the regulatory structure is where the real inconvenience comes from. That said, I wouldn't mind a bit more shift in general to make things slightly more difficult for copyright owners though. Just not as major a one as saying 100% of claims need to be valid from the get go or it's not viable for copyright holders.
Absent a balanced number this would ultimately turn into another debate about the place of the DMCA itself.