“If the only way a library can offer an Internet exhibit about the New Deal is to hire a lawyer to clear the rights to every image and sound, then the copyright system is burdening creativity in a way that has never been seen before because there are no formalities.”
Lawrence Lessig, Professor of Law at Harvard Law School
My nine year-old is taking piano lessons. She enjoys piano, but has an aversion to math. Having a degree in music, I try to explain to her the correlation between music and math. She is unconvinced. So, you can imagine how excited I was to show her a video I found on YouTube created to celebrate pi ( π ) day.
March 14th was pi day. In celebration, Michael John Blake, a young musician, composed a fugue based on pi to the 31st decimal. Much to my surprise, when searching for this video on YouTube to show my daughter, I found an additional video from Michael John Blake explaining why his pi video disappeared from YouTube.
Yes, videos can be removed from YouTube. In fact, anything can be removed from any site by its host, including Facebook, news-sites, personal blogs, anything. All in thanks to The Digital Millennium Copyright Act of 1998, commonly known as the DMCA.
The DMCA was signed into law on October 28,1998 by President Clinton. It amends US Code Title 17 Copyrights as well as implements two international treaties; World Intellectual Property Organization Copyright Treaty (WIPO Copyright Act) and World Intellectual Property Organization Performance and Phonogram (WIPO Performance and Phonogram Act). The DMCA includes five Titles, but the one that affects the missing video from YouTube is Title 2 Online Copyright Infringement Liability Act. To those of you who have read my previous post on S.3804 COICA, some of this may sound familiar.
Title 2 of the DMCA grants “safe harbor” to service providers and content hosts who follow a “notice-and-takedown” process. Briefly, here is how it works. If I see a video on YouTube that I did not post, but contains my copyrighted material, I submit a “takedown notice” to YouTube stating that I am the copyright holder and request them to remove the video from their site. YouTube then removes the video and notifies the user who posted the video that it has been removed. If the user who posted the video feels that it is “fair use” or is not copyright material, they can then submit a “counter notice” to YouTube to restore the video. Following the filing of the “counter notice”, the copyright holder then has ten days to file a lawsuit. If no lawsuit is filed in that time, YouTube will restore the video. As you can imagine, the takedown notice process has been subject to much criticism and misuse.
As a result of the DMCA’s “notice-and-takedown” process there has been the birth of a new industry; Copyright Trolls. Copyright Trolls are companies that search the Internet for possibly infringing copyright material. Once they find something, they initiate a lawsuit against the alleged violator threatening a judgement of up to $150,000. In most cases the copyright material is covered under “fair use”. Not knowing this, the defendants not wanting to incur legal costs and possible conviction, quickly settle for $1,500 to $3,000 per person. In the past year, these copyright trolls have been experimenting with mass copyright litigation. As a result there are currently several cases in the court system challenging the ability of copyright trolls to sue for copyright infringement. In one such case, [Righthaven v. Democratic Underground] the issue of “right to sue” has come up. In copyright law, only the copyright holder has the right to sue. Copyright trolls don’t hold the copyrights, therefore they do not have the right to sue.
Back to our YouTube musician, Michael John Blake. On March 16th he posted a new video explaining that he received notice that his pi song initiated a copyright infringement claim. He states in this video that he filed a counter notice, believing that you “ ... can’t copyright a melody based on a number." His What Pi Sounds Like video has since be restored.
My nine year-old and I watched his video. She loved it and is beginning to see some correlation between music and math. In addition, she learned about copyright infringement, the DMCA, and takedown notices. Her reaction, “That’s silly. Why would someone do that?” I agree. Unfortunately, the common reaction by our legislators to fix this problem, is to write another law. This doesn’t solve the problem, it just creates more unintended consequences. It is my hope that we can find more effective solutions to real copyright infringement, or I’m afraid that the entire Internet will become a Houdini act of now you see it, now you don’t.
YouTube’s Terms of Service. Section 8 specifically discusses the DMCA and provides instructions regarding the filing of a “notice-and-takedown” as well as a “counter notice”.
The Electronic Frontier Foundation’s (EFF) A Guide to YouTube Removals
EFF’s Takedown Hall of Shame always an interesting read
ARS Technica’s article on Righthaven v. Democratic Underground Righthaven Reeling: secret doc could doom a copyright troll