by Paul Alan Levy
In the last couple of weeks, both the Obama campaign and the McCain campaign have experienced the sort of abusive use of the intellectual property laws that Greg Beck and I have previously discussed here – the invocation of phony copyright or trademark claims to suppress their free speech. In the recent cases, TV networks complained to YouTube about the use of footage from news reports in their campaign advertisements, invoking the takedown provisions, in section 512 of the Digital Millennium Copyright Act or “DMCA.” And if IP owners can get away with suppressing the speech of the presidential candidates from our two major parties when they criticize each other, that just shows how vulnerable the rest of us are when we use the Internet to criticize companies.
Fred von Lohmann points out on the EFF Deeplinks Blog, seconded by a letter from Zahavah Levine at YouTube, that the DMCA provides tools that a suppressed speaker can use to fight back, including shaming the taker-downer, suing for wrongful take down, and the like (one might also consider shaming the ISP’s who give in too easily to takedowns. But as we point out today in an open letter to Senators McCain and Obama, these protections are largely illusory, not only because not enough lawyers will do these case pro bono, but also because lawsuits are a needless distraction to political campaigns that have more immediate tasks, and because many senders of takedown notices have no shame, but cynically make IP claims knowing that ISP’s will give in to protect themselves against infringement liability (or the cost of litigation).
The better approach would be to reform the DMCA and other intellectual property laws that have been expanded in the past several years to give too much power to IP owners and not enough balance for the right of free speech. Next year, one of these candidates will be president, and the other can help lead a bipartisan effort in the Senate to protect free speech against rampant IP claims.
In our letter, we propose several specific changes in the law:
1. Under current law, section 512(g)(2), an ISP that receives a takedown letter can maintain its statutory immunity against copyright infringement only if it first removes the allegedly infringing material, section 512(g)(2)(B), and then waits for at least ten days, or even as long as fourteen days, after receiving a counternotice justifying the material as non-infringing, before restoring the removed speech. section 512(g)(2)(C). As a result, the author of the takedown receives the equivalent of a TRO – limited by the Federal Rules of Civil Procedure to ten days – without having to make any showing of infringement. A bare claim is enough. The law should be amended to eliminate the requirement of an immediate takedown, and immunity should be maintained if speaker sends a prompt counter-notice.
2. Under current law, section 512(f), a person sending a takedown notice can be held liable for doing so wrongfully, but only if the sender “knowingly materially misrepresents” that the material is infringing. And the speaker can only get whatever damages he can prove. But the nature of damages from the suppression of speech makes it hard to quantify, and the requirement of “knowing” misrepresentation creates an undue hurdle to liability. Copyright law recognizes this problem by providing for statutory damages, section 504(c), and at the same time creates a financial disincentive to copyright infringement. Those disincentives should apply equally to wrongful takedowns. Statutory damages should be available whenever a takedown notice is determined to have been applied to noninfringing material. As under section 504(c), the degree of good faith of the sender of the takedown notice should affect the amount of the statutory damages, but not their availability.
3. Under current law, the sender of the takedown notice has no obligation to attempt notice to the poster of allegedly infringing material, who often learns of the takedown only after it has occurred, through a notice from the ISP under section 512(g)(2)(A). The sender of the takedown notice (or the ISP) should be required to give notice to the speaker before the takedown occurs, so that the speaker has a fair chance to respond with a prompt counternotice that prevents the takedown from ever occurring.
4. Under current law, the public never learns what takedown notices have been sent, by whom, and on what grounds. Although the speaker should eventually receive notice from the ISP, the general public, which has an interest in not having its right to receive non-infringing speech unduly cut off, may never learn exactly why a favorite YouTube video has been taken off line. Several commentators, including EFF and YouTube, have suggested the use of public shaming mechanisms as a deterrent to wrongful takedowns. Section 512(c)(3) should be amended to require the sender of a takedown to post the takedown notice on a public database, similar to the Chilling Effects Clearinghouse, maintained by several universities along with EFF. In the alternative, the federal government could be tasked with creating such a database, to be funded by the imposition of user fees that must be paid before any takedown letter is sent.
5. Under current law, the DMCA provides immunity only against copyright claims, but section 230 of the Communications Decency Act excludes all intellectual property claims from the immunity provided to ISP’s. Once the DMCA is amended to provide better protections for free speech, its immunity provisions and the concomitant takedown procedure should be amended to include trademark claims as well.
A time when the presidential candidates from both major parties have both been given reason to complain about misuse of copyright law to suppress their speech presents the ultimate teachable moment on this issue. We can only hope that both of them remember that lesson when we try to put IP law reform, from a consumer / speaker perspective, on the agenda.