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These three dumb examples prove that copyright is broken

Published May 24th, 2016 5:40PM EDT
DMCA Abuse

If you’ve spent a significant amount of time on the internet, you’ve probably heard of the Digital Millennium Copyright Act (DMCA), the badly-thought-out piece of legislation that governs using stuff on the internet. That it’s broken is not news — people have been railing against the DMCA since before it became law — but a handful of recent examples illustrate the point rather well.

DON’T MISS: HBO is abusing copyright to take ‘Game of Thrones’ fan videos off YouTube

At the heart of DMCA is ‘safe harbor’ — a protection given to website owners like YouTube and Twitter, that makes them not responsible for copyright infringements on their sites — provided that once they’re informed of infringing content, they take it down quickly. These “DMCA takedowns,” which are very easy for content owners to issue, are the heart of the problem.

Exhibit A: last week’s story, where Fox stole a gameplay clip from a YouTube user, used it in Family Guy without permission, and then — here’s the kicker — had the gameplay clip removed from YouTube.

The removal was almost certainly the result of YouTube’s Content ID system, which uses computers to scan uploaded YouTube videos and take down any videos that are seen to be infringing on content-holders. In this case, I assume Content ID flagged the gameplay clip as infringing on the Family Guy episode, and took it down. (The clip has since been restored.)

This is a particularly bad example of something that happens all the time: a fifteen-second clip of a song will be playing in the background, while something else completely different is happening. That isn’t copyright infringement — it’s something called fair use, which is absolutely protected under the DMCA.

Fair use is normally quite simple for a human to work out — if, say, a baby is seen dancing along to Prince’s Let’s Go Crazy, that should constitute “use of copyrighted material done for a limited and transformative purpose.” Think about it this way — no one who wanted to listen to Let’s Go Crazy would be satisfied with that grainy 29-second clip instead.

Unfortunately, in the case of the dancing baby, Universal thought otherwise, and issued a DMCA takedown. The legal proceedings are now in their 9th year, and still undecided. This is a patently absurd amount of time and effort to spend arguing about a dancing baby.

But both of these examples pale in comparison to a recent Guardian story. In short, a woman wrote a bad review of a contractor on an online forum, Mumsnet. The contractor tried (and failed) to have the post taken down through accusations of slander, before something strange happened. A duplicate of the post appeared, backdated, on a fake-sounding website owned by someon in Pakistan.

A DMCA notice was subsequently issued, and because the fake post was backdated to before the real Mumsnet post, Google automatically complied with the DMCA notice.

This example doesn’t even have to do with copyright law and “fair use” — it’s a blatant abuse of the DMCA to get infringing material taken down. But because Google (and YouTube, and every other site on the internet) needs to be so careful with copyright, most online companies take a guilty-until-proven-innocent approach.

This favors abuse, because the DMCA has no penalties for false claims, and no easy way to fight bogus DMCA takedowns.

It’s easy to blame Google, but there’s little that the company can really do. Google handles 75,000,000 takedown requests every single month, so there’s no way it has the manpower to sift through those manually. It’s left up to a computer, and when things inevitably go wrong, there’s no good way to fix them.

What’s the solution? Well, that’s a complicated question, but the answer probably involves some kind of accountability for people filing DMCA takedowns — too many false flags or any instances of abuse should be met with penalties, just like legit copyright infringement is met with penalties.

But even without having a solution, it’s clear that the DMCA is broken. It’s turned from a useful tool to protect copyrighted material into a one-size-fits-all way for companies to get rid of stuff they don’t like.