Summary
John McCain’s campaign has been hit by the DMCA. They have had some videos removed by YouTube, despite the fact that they fell within Fair Use. And they are pissed. McCain’s General Council, Trevor Potter, raises some good points in his letter to YouTube, but his proposed solution is elitist and unacceptable.
An Open Letter to Senator McCain
Dear Senator McCain:
I hear that you are upset by YouTube and the way they have removed your videos when various news organizations filed DMCA complaints against you, despite the fact that your use of their clips clearly fell within Fair Use. Welcome to the DMCA and the world of unintended consequences. I’m sure that when you voted to pass the DMCA ten years ago you could not have imagined that there would be one website that has so dominated the internet video market as YouTube has. And even if you could have imagined that, you could not have imagined that the people who run this site would demonstrate such contempt for Fair Use that they would remove videos that are part of the vital flow of information necessary for an informed electorate, just days before one of the most important elections in our history. But this has been the unintended consequence of a bad law and of a commercial behemoth that it is willing to stomp on the Fair Use rights of its contributors in order to cover its ass from potential copyright lawsuits.
Unfortunately, you have seen only the tip of the iceberg of unintended consequences. There have been many, many people wrongfully targeted by bogus DMCAs on YouTube, and YouTube rewards those who send in questionable DMCAs by removing videos they find objectionable. In fact, the DMCA has been turned from a tool to protect copyright into a weapon to commit censorship. Anyone can get any video removed simply by sending in a bogus DMCA claiming copyright interest in a video, whether they really have a copyright interest in the video or not, and YouTube will automatically remove the video. I know, because I have had that happen to me. And if a person has three videos targeted by DMCAs and they do not fight the takedowns by filing counternotices, then YouTube will suspend their account, whether the DMCAs have merit or not.
Now, you are filing counternotices, so you will get your videos restored and you won’t have to worry about your account being suspended. But you’ve run up against another unintended consequence of the DMCA. In order to be protected by the DMCA against copyright lawsuits, YouTube will not restore your videos for 10 days. This is just too long for time urgent situations like a public election. But there are time urgent situations besides elections, and this is not the only unintended consequence of the DMCA’s counternotification procedure.
Unfortunately, the DMCA requires the person filing the counternotice to sign their name and address, and then it requires YouTube to turn over that name and address to the person who filed the DMCA complaint. Thus, you can not fight back against a bogus DMCA without giving up your right to anonymity. You can not avail yourself of your right of Fair Use while staying anonymous. The person who is targeted by bogus DMCAs has three choices. They could file a counternotice and give up their anonymity. They can do nothing, and their video will not be restored and their account may be suspended. Or they could perjure themselves by signing a phony name and address to the counternotice. This situation is both dangerous and unconstitutional.
Let me explain why it is dangerous first. Death threats between various users are not uncommon on YouTube. The vast majority of those death threats are made to intimidate, but the people making those threats have no intention of carrying them out. Not only do they not intend to carry them out, they have no ability to carry them out because they do not know the real life identity or location of their target. But suppose someone threatens to kill another YouTuber and then files DMCAs against them. Chances are, they are just being a bully and they have no intention of really killing their victim. But the target of this harassment must decide whether the person attacking them falls within the vast majority who are bluffing bullies, or whether they are one of a small number of truly deranged individuals who would carry out their threat once they know the identity of their victims. No one should be put in this position of trying to decide what their harasser’s true intentions is.
Moreover, because of YouTube’s sloppy procedure, anyone can file a false name on a DMCA claiming to represent a legitimate major corporation, and YouTube will act on the DMCA without checking its legitimacy. In fact, someone once sent a DMCA claiming to be a representative of Viacom, and YouTube automatically removed the video in question without checking. The person whose video was removed contacted Viacom and they denied having sent in the DMCA. One can only conclude that someone was imitating Viacom and YouTube gave them the power to censor a video that only Viacom would have any sort of claim against. I will post links in the sidebar documenting this incident.
This presents a tremendous security risk. Imagine this scenario. A battered wife flees her husband and hides from him in parts unknown. He knows she has posted videos to her YouTube channel. So he sends DMCA notices to YouTube, signing a phony name and claiming to represent Viacom. YouTube removes the woman’s videos and informs her that it was Viacom who DMCAd her. She takes YouTube at their word and sends back a DMCA counternotice in order to get her video restored. They then send the counternotice, along with her name and location, to the DMCA filer, as required by the DMCA. The filer, of course, is her enraged husband, and not Viacom. The husband then takes this information and tracks her down and slits her throat. That is a potential unintended consequence of the DMCA.
The DMCA could even present a danger to national security. Suppose a disgruntled Iranian nuclear technician smuggled a video out of the country that documents the progress that Iran was making in constructing a nuclear weapon. Of course, the best thing for him to do would be to send the video to the CIA. But suppose he feared that the U.S. would not have the backbone to do anything about it. Suppose he thought that the American people had heard their leaders cry wolf one too many times. Suppose he thought we would just dismiss our government’s declaration that an Iranian nuke was imminent as no more than the type of meritless fear mongering that got us into war with Iraq. So he posts the video to YouTube to alert the American people of the danger that awaits them if they do nothing.
Of course, if the Iranian government sees the video they won’t be too happy about it being on YouTube, and if they have any savvy at all they will send in a DMCA to get it removed. Should the disgruntled nuclear technician have to sign his name to the counternotice, as required by law, knowing that doing so would jeopardize his family still living in Iran? Should he be forced to choose between perjuring himself, endangering his family, or having the video removed permanently?
There are many reasons why people choose to remain anonymous. It’s easy to imagine a few. Someone wants to express her religious beliefs but doesn’t want her neighbors to find out about it. Someone wants to put a video on YouTube urging people to vote for John McCain, but she knows that if her boss finds out about it, she will be less likely to get a promotion. Someone wants to expose pollution violations by their company, knowing that doing so under their real name will get them fired, or worse. Someone wants to expose a stock fraud by a company run by the Mafia.
Our country might not exist today had Alexander Hamilton, John Jay and James Madison not written the Federalist Papers which convinced the public to adopt the new Constitution. And you may not know this, but when the Federalist Papers were published, they were published anonymously under the name Publius. Being able to speak out anonymously has a long history stretching back to our Founding Fathers, and the DMCA threatens this tradition.
The DMCA’s requirement that we give up our right to anonymity in order to defend our right to speak out is clearly unconstitutional. In McIntyre v. Ohio Elections Commission the Supreme Court held that there is a fundamental right to speak anonymously on political issues. And in Reno v. The American Civil Liberties Union, the Court recognized that this right to free speech extends into cyberspace. In addition, there has been a fair number of libel cases tried in lower courts in which the courts determined that posters on the internet could not be stripped of their anonymity unless the Plaintiff made a prima facie showing that their case had merit. In other words, courts aren’t going to pierce a defendant’s anonymity just because a Plaintiff alleges that a Defendant did something wrong. The Plaintiff first has to convince the court that he has a legitimate case before he is allowed to discover the identity of his adversary. As the Delaware State Supreme Court noted in Doe v. Cahill:
there is reason to believe that many defamation plaintiffs bring suit merely to unmask the identities of anonymous critics. As one commentator has noted, “[t]he sudden surge in John Doe suits stems from the fact that many defamation actions are not really about money.” “The goals of this new breed of libel action are largely symbolic, the primary goal being to silence John Doe and others like him.” This “sue first, ask questions later” approach, coupled with a standard only minimally protective of the anonymity of defendants, will discourage debate on important issues of public concern as more and more anonymous posters censor their online statements in response to the likelihood of being unmasked.
Or as the Court in Columbia Insurance Company v. Seescandy.com noted:
People who have committed no wrong should be able to participate online without fear that someone who wishes to harass or embarrass them can file a frivolous lawsuit and thereby gain the power of the court's order to discover their identity.
Thus the courts have recognized the necessity of anonymity in fostering vigorous debate online and they have built in safeguards to protect the anonymity of innocent internet users. But the DMCA does an end-run around the safeguards built by the judicial system. The DMCA does an end run around the judicial system entirely by deputizing anyone willing to commit perjury with the power to remove the videos of their adversaries. It used to be that only a judge with many years of legal experience had the authority to censor what was published. It used to be that only a judge could pierce an internet poster’s veil of anonymity. But the DMCA has taken the power that was once only the province of the court and has given it to the 14 year old kid with acne who wants to mess with people just for laughs. It has given this power to the Mafioso who wants to remove a video exposing a stock fraud that he is running. And it has given this power to the pedophile who wants to prevent others from exposing his attempts to contact children.
Senator McCain, you were unhappy when YouTube removed your video. Your General Council, Trevor Potter, was on target when he wrote to YouTube stating:
“. . . nothing in the DMCA requires a host like YouTube to comply automatically with takedown notices, while blinding itself to their legal merit (or, as here, their lack thereof). The DMCA provides hosts with a safe harbor from liability for infringement—but there is no need for a safe harbor where, as is here, there is no infringement in the first instance. See id. §107 (a fair use “is not an infringement of copyright”).
Those words are so important, Senator McCain, that I wish you could take a branding iron and brand them into the skulls of those who run YouTube. However, your Council missed the mark when he offered his solution to the problem. He wrote:
“We fully understand that YouTube may receive too many videos, and too many takedown notices, to be able to conduct full fair-use review of all such notices. But we believe it would consume few resources—and provide enormous benefit—for YouTube to commit to a full legal review of all takedown notices on videos posted from accounts controlled by (at least) political candidates and campaigns. If YouTube receives a takedown notice for any video posted from such accounts, we propose that it commit to a careful legal review, including fair use analysis, to determine whether the infringement claim has substantial merit. If YouTube is satisfied that the use at issue is fair, or otherwise non-infringing, we propose that it decline to act upon the notice. Surely the protection of core political speech, and the protection of the central role YouTube has come to play in the country’s political discourse, is worth this small amount of additional legal work our proposal would require.”
Senator McCain, the proposal put forth by your Council is both elitist and unacceptable. It is elitist because it only protects the First Amendment rights of the political elite. Believe it or not, candidates for office are not the only ones who have something to say about important issues of the day. And those who run for office are not the only ones who should have their First Amendment rights protected. You propose two sets of rules—one for those running for office and one for the rest of us. This is not something the American people should accept.
Your Council was correct in his diagnosis of the problem, but YouTube was correct in their response to your Council. They wrote:
“…while we agree with you that the U.S. Presidential election-related content is invaluable and worthy of the highest level of protection, there is a lot of other content on our global site that our users around the world find to be equally important, including, by way of example only, political campaigns from around the globe at all levels of government, human rights movements, and other important voices. We try to be careful not to favor one category of content on our site over others, and to treat all of our users fairly, regardless of whether they are an individual, a large corporation or a candidate for public office.”
Just as I wish that some of the words of your Council could be branded into the skulls of YouTube’s executives, I wish these words by YouTube could be branded into the skull of any politician who wants to create two sets of rules—one for the political elite and one for the unwashed masses.
I do not blame you, Senator McCain, for voting for the DMCA. It passed in the Senate in 1998 by a unanimous vote. Neither you, nor your fellow Senators, can be blamed for failing to see its unintended consequences back then. You can not be blamed for failing to see how the internet would grow and prosper and how one site like YouTube could become so dominant in the video marketplace of ideas. And you can not be blamed for failing to anticipate how Constitutional law would develop in response to conflicts that arose on the internet. But by now it should be obvious that the DMCA needs a major overhaul. I hope that you will you use your influence in the future as either Senator or President to bring the DMCA in line with the requirements of the First Amendment.
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