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The Mechanics of the DMCA

Or

How To Turn Youtube Into Your Marionette For Censorship

 

It is important to understand the mechanics Section 512 of the Digital Millennium Copyright Act (DCMA) in order to understand why it is unconstitutional. Once you understand the mechanics of the DMCA and the way Youtube implements the DMCA, you will then be able to make the folks at Youtube dance like your marionette, and they will happily suspend accounts at your bidding. You’ve got an enemy who posts videos on Youtube? You say that there is someone you want censored? No problem. Learn these handy secrets and Youtube will close his account and all his videos will be swallowed down an Orwellian Memory Hole.

I am being somewhat facetious when I say there is no problem with shutting down your adversary’s account by improperly using the DMCA. Oh, I’m dead serious when I say that you can use the DMCA to turn the folks who run Youtube into your marionette for censorship. I see it happen all the time. In fact, my account was suspended because someone filed a false DMCA on me. But I strongly urge you not to abuse the knowledge I am about to give you. Abusing the DMCA by using it to censor others is both immoral and illegal. I hate DMCA abuse with a passion. I am publicizing how easy it is to abuse the DMCA for one reason, and one reason only. There are a fair number of “bad guys” who already know how to abuse the DMCA and are using that knowledge to censor others. I want the “good guys” to know what is going on as well. I hope that if enough good people know how easy it is to abuse the DMCA then they will put pressure on their Representatives to change the DMCA and put pressure on Youtube to change the way it implements the DMCA.

Before explaining how the DMCA works, it is important to note that the DMCA DOES NOT REQUIRE Youtube to remove any videos. Jackbooted thugs from the internet police are not going to raid Youtube headquarters if they decide not to remove videos under the DMCA. The DMCA does, however, give Youtube immunity from being sued for copyright infringement if it follows a certain procedure. If Youtube does not follow this procedure, they may be sued for copyright infringing material posted on their site by third parties. No doubt, this is a strong incentive for them to take down videos when they receive DMCA notices. But if they wanted to be First Amendment heroes—if they truly wanted to fulfill their potential as the Town Square of the World, they could decide to ignore DMCA notices in situations where the DMCAd video was clearly making fair use of another video.

Even if they don't want to be First Amendment heroes because they want to avoid the risk being sued, the least they COULD and SHOULD do is review the videos that have been DMCAd before suspending accounts. The least they could do is verify that some copying from one video to another has taken place and that the DMCA claim isn't totally bogus. But I'm getting ahead of myself. Let's look at the mechanics of the DMCA. You can read the relevant section here, but there is a fair amount of legalese involved. I'll copy and explain the highlights. The act pertains to any Internet Service Provider, but I will be talking specifically about Youtube.

  1. The procedure starts as soon as Youtube receives a DMCA complaint about an (allegedly) copyright infringing video. Note I say allegedly, because the copying may be legal under Fair Use--and there might not be any copying at all if the complaint is totally bogus. Of course, these considerations matter less to Youtube than the dandruff on a flea. But whether or not the video being complained about is actually infringing on anyone's copyrighted material, the procedure is the same.

The DMCA complaint sent to Youtube must contain:

(i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

(ii) Identification of the copyrighted work claimed to have been infringed. . ..

(iii) Identification of the material that is claimed to be infringing. . . that is to be removed . . . and information reasonably sufficient to permit the service provider to locate the material. (Translation: the name of the video and the video's URL).

(iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.

(v) A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law. (Translation: The DMCA filer must state that the person who he is complaining about did not have permission to upload the infringing video.)

(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.

 

  1. Upon receiving a DMCA complaint, Youtube MUST expeditiously remove the video in question to receive immunity from a copyright lawsuit. It must then notify the person whose video has been removed that their video was indeed taken down because of a DMCA complaint.
  2. The person whose video was removed can fight back and force Youtube to put the video back up by filing a Counter Notification. The Counter Notification must include:

    (A) A physical or electronic signature of the subscriber.

    (B) Identification of the material that has been removed . . ..

    (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.

    (D) The subscriber's name, address, and telephone number, and a statement that the subscriber consents to the jurisdiction of Federal District Court for the judicial district in which the address is located, or if the subscriber's address is outside of the United States, for any judicial district in which the service provider may be found, and that the subscriber will accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person.

    Translated into English, this means that if you want to fight a DMCA takedown of your video, you must tell which video has been taken down, and swear under penalty of perjury that you were not infringing on copyright. You must agree to allow yourself to be sued by the (alleged) copyright holder, and you must provide your name, address, and phone number so that the (alleged) copyright holder can sue you.

  3. Youtube MUST then send a copy of the Counter Notification (including the alleged infringer’s name and contact information) to the copyright holder and inform the copyright holder that it will replace the removed video in 10 business days. It is this step that makes the DMCA blatantly unconstitutional.
  4. Youtube must then replace the removed video in no less then 10, nor more than 14 business days following the receipt of a Counter Notification. However, if the person who filed the original DMCA sends Youtube a notice that he or she has filed a lawsuit against the alleged copyright infringer, then Youtube must refrain from putting the video back up.

Here is Youtube's page describing the exact steps necessary to file a DMCA complaint.

And here is Youtube's page describing how to file a counter notice.

Note that the DMCA does not allow someone to file a counter notification and remain anonymous—even if the video in question is within Fair Use guidelines, and even if the copyright holder has threatened to kill the alleged infringer once he learns of the infringer’s identity. Indeed, if a scoundrel is brazen and doesn’t care about the law then he can file a complaint against someone WHO DIDN’T EVEN USE ANY of his copyrighted material, and the DMCA will force the victim of this illegal use of the DMCA to choose between giving up her anonymity or giving up her right to post the video in question. Of course, the victim of this abuse could prevent the DMCA abuser from learning her identity by sending in a counternotice with a phony name and address, BUT THE DMCA STATES THAT DOING SO WOULD MAKE HER GUILTY OF PERJURY.

But that's not all. Even if the victim of such abuse is willing to give up her anonymity and send a legitimate counternotice, all the “copyright holder” has to do is send a letter to Youtube stating that he has filed an lawsuit against the person who posted the video and Youtube will refuse to reinstate the video (as required by the DMCA). So anyone willing to break the law can get any video removed just by filing a bogus DMCA and responding to a counternotice with a bogus claim that he has filed a lawsuit against the person who had posted the video in question. No death threat is even necessary to censor an opponent. Of course, if someone files a bogus DMCA, he would not want to actually file a lawsuit. Doing so would only risk the Court discovering his DMCA perjury. But the way Youtube has chosen to implement the DMCA makes it easy for the scoundrel to defeat his victim. As far as I can tell, Youtube doesn't bother to verify that a lawsuit has actually been filed.

It would be nice if Youtube verified the existence of a lawsuit before refusing to reinstate a video, but even if they did, that would only be a minor inconvenience for a censoring scoundrel. All the scoundrel. would have to do is file a complaint in court and then not pursue the lawsuit. All he has to do is fail to serve the complaint to the person who posted the video and the lawsuit will die. He doesn't have to show up in Court. He doesn't have to risk the Court finding out about his perjury. And the video remains censored. Mission Accomplished.

But it is even worse than this. It is much, much worse. Section 512 (i) (1) of the DMCA states that and internet service provider will be granted immunity from lawsuits only if it

has adopted and reasonably implemented . . . a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider's system or network who are repeat infringers.

 

Notice that the law is very vague. It does not explain what a "reasonably implemented" policy would look like, It does not specify how many violations are necessary to make one a repeat offender. And it doesn't specify what the appropriate circumstances are for suspending a repeat offender. Did Congress intend for Service Providers to terminate accounts when all the account holder did was make "Fair Use" of other people's videos? Is that what is meant by the phrase "appropriate circumstances"? Somehow, I don't think so.

But what I think doesn't really matter. Youtube has adopted a three-strikes-and-you're-out policy. If you have violated copyright three times in Youtube's eyes, they will suspend your account. And what is even worse, once you are suspended, you are forever persona nongrata at Youtube. The Youtube Community Guidelines states (in bold): "If you have an account terminated you are prohibited from ever signing up for another account!"

So putting all this together, you now know how to get anyone's account suspended from Youtube. File three false DMCA's against your opponent. Making a death threat against her is optional. If your opponent files counter DMCAs then simply send them three letters stating that you are suing your opponent three times. Voila! Your opponent's account is suspended. And he is barred from opening a new one forever.

Now, it is possible that Youtube might not suspend an account if it sees all three DMCA notices coming from the same person. I'm not sure about that. So if you want to be sure that Youtube will jump at your command, you need only open up three email accounts and pretend to be three different people sending in DMCA notices to Youtube.

Youtube's policy of banning "repeat offenders", (i.e. people who in fact may not have even broken copyright laws) is particularly obnoxious because of its permanence. Even a rapist will only get a punishment of 10 or 20 years in prison. But the punishment of a "copyright infringer" lasts longer than that of a convicted rapist. And there is NOTHING in the DMCA that mandates this. There is NOTHING in the DMCA that states that someone whose account has been suspended may never be allowed to have a new account.

Wendy Seltzer is an expert on Intellectual Property and Internet Law. She founded and developed the Chilling Effects Clearinghouse to monitor and fight against abusive use of the legal system to stifle free speech on the internet. Seltzer writes of an incident that demonstrates that the DMCA does not require permanent banishment. In 2003, the Dean of Harvard college issued a statement saying that the college'“will terminate the network access of any student who is a repeat offender … The length of termination will be one year.'" Note that the punishment at Harvard was not permanent--it would only last one year. But even this, Seltzer wrote, was not mandated by the DMCA. She suggested a shorter banishment would be appropriate as a learning tool to teach students the importance of following copyright law. There is one thing within Seltzer's post that is no longer quite true--In her post she said that a person should only be considered a repeat infringer if they have been so proven in a court of law. Unfortunately the U.S. Court of Appeals for the Ninth Circuit decided otherwise in Perfect 10 v. CCBill, a decision made well after Seltzer's post. And unfortunately, Youtube's headquarters is located within the jurisdiction of the Ninth Circuit Court, so any appeal to Youtube that they are treating accused infringers as guilty before they have been convicted in court will fall on deaf ears. But as far as I know, my main point still holds true--the DMCA does not require permanent banishment.

The DMCA does have one redeeming feature. 512 (f)(1) states:

Any person who knowingly materially misrepresents under this section - that material or activity is infringing... shall be liable for any damages, including costs and attorney's fees, incurred by the alleged infringer. . .who is injured by such misrepresentation...

This means that the victim of DMCA abuse can theoretically sue the abuser and receive damages plus attorney's fees. But as a practical matter, most people are not going to sue and there is little chance that the perpetrator will be held accountable.

 

A Safeguard Youtube Should Implement

Many people in the Youtube community are disgusted by the way that Youtube treats them, as evidenced by the many comments on this video. Many people believe the staff at Youtube have nothing but contempt for their users. The two biggest complaints stem from the fact that it appears that Youtube does nothing to protect its users from those who use the site to make death threats, and from Youtube's DMCA enforcement policy which results in the suspension of accounts of those who do not want to give up their personal information. The least Youtube can do is to take fair use into consideration as a mitigating factor before suspending accounts. And if that is too much to ask, they should at least have a policy in place to protect its users from totally bogus DMCA complaints. If someone who has been suspended writes to Youtube and states that they never copied from another video, then Youtube should compare the videos that was allegedly infringing with the videos that they were supposedly copied from and determine if any copying had taken place at all. And if Youtube determines that no copying had occurred and the DMCAs were bogus, then they should restore the videos, refuse to terminate the account, and cooperate with authorities and the victim of the bogus complaint to try to bring the DMCA abuser to justice.

 

 

 

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