A Cautionary Tale: YouTube, DMCA and Copyright Trolls

In this piece Neil Turkewitz uses the framing of the recent federal court case in Nebraska brought by YouTube against Christopher L. Brady, alleging that made false copyright claims, as a way of highlighting some of the serious flaws in the DMCA and how takedowns and copyright claims are carried out.

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Op-Ed by Neil Turkewitz of Medium

Earlier this week, YouTube brought an action in federal court in Nebraska against Christopher L. Brady, alleging that he knowingly made false copyright claims which caused injury to both YouTube and to the owners of the videos that were temporarily removed pursuant to the allegedly fraudulent copyright claims filed by Mr. Brady. According to YouTube’s complaint, Mr. Brady knowingly misrepresented both his ownership of underlying materials and the nature of the supposedly infringing content which he sought to remove.

For present purposes (and because I lack the evidentiary materials by which I could make a factual assessment), I will assume that YouTube’s characterization of the underlying facts is true, and that Mr. Brady both knew that he did not own relevant copyrights, and that there was no infringement. I do highlight, however, that this is merely a working assumption and not corroboration of the facts as alleged. I also note that whether Brady owned valid copyrights is not directly relevant to establishing his liability here — he would be in violation of the law by knowingly misrepresenting the alleged copyright violation regardless of whether he owned valid copyrights or not. The question of his ownership is material only to the extent that it manifests an intent to misrepresent the facts to the detriment of YouTube and the creators of the allegedly infringing materials.

Before proceeding further, let me back up a moment to review the relevant legislative framework. Section 512 of the DMCA provides internet platforms with safe harbors from liability for copyright infringement provided they meet certain conditions — including the removal of infringing materials upon becoming aware of “facts or circumstances from which infringing activity is apparent.” The most frequent manner through which platforms gain such knowledge is via notice from copyright owners, and this process is generally known as “notice and takedown.” The DMCA also provides a mechanism for alleged infringers to contest the claim, whereupon the platform may restore the content at issue unless the copyright owner initiates a legal action for copyright infringement. Finally, in order to dissuade bad faith representations or other abuse of the system of notice and takedown, DMCA Section 512(f) provides for liability for willful misrepresentation of copyright by either party — the one claiming infringement or the one filing a counter notification.

Returning to the present case, if we assume the facts as stated by YouTube are correct, this is a perfect example of a statute operating as intended by Congress. A copyright claim was made and the allegedly infringing content removed, the alleged infringer counter-notified leading to the restoration of the content, and measures are now being taken to address bad faith misrepresentation which is important in its own right, and will hopefully serve as a deterrent to others who might have seen notice and takedown as a convenient tool for extortion.

In fact, I have written about the importance of dissuading abuse when the issue arose in the EU during consideration of the recently adopted Copyright Directive. I wrote:

“[Section 512(f)] is a very sensible approach to addressing and deterring abuse. While it may not eliminate it entirely, the possibility of significant costs for willful misrepresentation is a powerful disincentive for abusing the system. There are two critical aspects of this provision: (1) it must apply only to intentional misrepresentations (and not to good faith mistakes); and (2) it must apply with equal force and scope to claims of ownership/infringement and challenges thereto. Of course, that is where EFF and I part company — at least as suggested by Doctorow who focuses exclusively on false claims by copyright owners and is silent with respect to abuses by those filing counterclaims. This asymmetrical view must be rejected in favor of a single standard designed to enhance trust and efficiency in the process. And of course, this asymmetry in EFF’s reasoning is not unintentional — they would like to expand the definition of “material misrepresentation” under which someone claiming rights in a work may be subject to sanctions, but would worry about imposing such a burden on a counter-claimant. But that makes little sense and fails to advance justice — the system should encourage trust, and that means discouraging willful misrepresentations regardless of the identify of the speaker…

EFF is right that we should ensure a high level of trust in the institutions of governance. Achieving that requires deterring abuse of the system by all parties. Above all, we must bear in mind that this is part of an evolution in internet governance, and standing still should not be an option. The essential goal must be to ensure that all parties have an interest in continuing to improve processes to effectively address infringement in a responsible manner, and removing the incentives for any party — creator, platform or user, to defend an unjust status quo.”

It is vital that we bear the overall context in mind. Some parties will no doubt seek to use this case as a demonstration of the harms of misrepresentations under notice and takedown through the conduct of so-called “copyright trolls.” Ironically, these same parties generally fail to express any concern about online piracy that remains ubiquitous, nor — as reflected in my response to Doctorow, any concern about abuse of the counter-notification procedure spelled out in the DMCA. For anyone interested in an examination of the fraudulent use of counter-notification, I strongly recommend following composer Kerry Muzzey who has detailed his experience, including here.

Section 512 is broken in many ways, and fails to provide sufficient incentives for platforms to take meaningful action to address infringement on their proprietary platforms. Most glaring is that Congress’ careful construction of red-flag knowledge giving rise to an obligation to act has effectively been written out of the statute. Indeed, YouTube’s brief in this case includes the following description of the law: “In 1998, Congress enacted the Digital Millennium Copyright Act, 17 U.S.C. § 512 (the “DMCA”), to provide a framework for addressing claims of online copyright infringement. In general, the DMCA immunizes online service providers from claims of copyright infringement based on materials uploaded to the services by users, if the services promptly remove allegedly infringing materials upon receipt of notices from copyright holders.” But of course, that’s not the law. The law requires services to remove infringing materials when they become “aware of facts or circumstances from which infringing activity is apparent.” Notice is just one way for services to gain the requisite knowledge, not the only way.

But I digress from the particulars of this case. All reasonable parties have an interest in preventing abuse of the system. One way that the system can be abused is through intentional misrepresentation of the facts of alleged infringement or non-infringement. Hopefully this case will illustrate that there are consequences for such conduct, and that such consequences will serve as a deterrent to other putative abusers. That will reflect a success of the framework, not an indictment of the DMCA. There are a host of reasons to indict the DMCA. This just doesn’t happen to be one of them.

Finally, I can’t but help but note how this manifests an extreme imbalance in the ability to address harm. While copyright owners, and in particular independent creators without the means to initiate expensive litigation in federal courts, suffer under the weight of suffocating piracy that threatens their very livelihoods, YouTube is able to bring litigation in support of a principle in which it has very little financial interest. YouTube alleges that it is was harmed because it was forced to undertake an investigation into the matter, and that such expenses were unnecessary. I’ll grant that. And I’ll further grant that YouTube has significant business interests in preventing abuse. But YouTube had estimated revenue of between $9.5 to $14 billion in 2018. How much did they have to spend on this unnecessary investigation? How does that compare to the continuing losses to the creative community resulting from the failure to effectively address piracy?

One might be forgiven for believing that the intention was, at least in part, to distract from the ineffectiveness of the notice and takedown system, and to deflect criticism from policymakers here and around the world for their failure to adequately address online harms. Viewed in that light, YouTube is defending not this case, but their very business model. And there, I’ll certainly grant, they have a huge interest. But perhaps not such a legitimate one.