vices receive some protection, too.
When an online company removes
allegedly infringing material that
was posted by a user, that company
is statutorily required to notify the
user of what happened and why.
The individual has a right to send a
counternotification stating he or she
has a “good-faith belief” the material is not infringing.
Once this counternotification is
received, the online company must
put the disputed material back on-line within 14 business days, unless
the company receives notice from
the copyright owner that it has filed
an infringement suit against the person who posted the material.
SECTION 512 HAS BEEN, IN SOME WAYS,
an astounding success. Its statutory
safe harbor has enabled many new
online businesses to flower. You Tube,
MySpace, Flickr and many other
user-generated content sites have
become household names with millions of users communicating and
sharing information and other types
Such online communication
would be impossible without section 512’s safe harbor, many experts
assert. The UGC sites depend on
this to protect them from copyright
liability. “Without this safe harbor,
no one could provide the services
that You Tube and Flickr provide,”
says Joseph Gratz, a San Francisco-based attorney and past chair of
the ABA’s Section of Intellectual
Property Law’s Special Committee
on the Digital Millennium Copyright Act. “There would simply
be too much risk.”
Congress, however, enacted section 512 at a time when technology
was simpler. “The DMCA ... was
written when people were worried
about bulletin board and Usenet operators who ran services for the uploading and downloading of content,”
says New York City attorney Jeffrey
Neuburger. The law’s drafters had
no inkling that UGC sites would develop, much less that these sites
would become wildly popular.
Section 512’s system doesn’t fit
these new sites well, according to
some experts. “The system is work-
Stephanie and Holden Lenz
ing on a scale that Congress never intended, with millions of postings every
day,” says Paul Goldstein, who teaches copyright law at Stanford Law School.
Policing these postings and sending out takedown notices has become a
time-consuming and costly process for copyright owners. “It puts a burden
on small companies and individual authors that I don’t think Congress considered when it enacted these provisions,” Goldstein says.
FLURRY OF TAKEDOWN NOTICES
COPYRIGHT OWNERS HAVE TRIED MIGHTILY TO WORK WITHIN THE EXISTING
law. They have sent out hundreds of thousands of section 512 takedown notices. That’s far too many notices, according to some attorneys, who assert
that copyright owners often do not bother to check whether an online item
is truly infringing. Automated programs search for titles of copyrighted works
and fragments of copyrighted songs or videos. If anything is found, the work
is hit with a takedown notice—frequently without any real examination of
the allegedly infringing item.
This might be why Universal ordered YouTube to remove the homemade
video of little Holden dancing in his family’s kitchen. If an attorney for Universal had examined the video, says Gratz, counsel would have recognized
that the snippet of a Prince song in the video was almost certainly not infringement, but fair use.
The automated nature of many takedown notices also may explain why
the International Olympic Committee ordered YouTube last August to take
down a video titled Beijing Olympics Opening Ceremony. The title certainly
suggested the video contained material copyrighted by the IOC, but a cursory look at the video would have demonstrated otherwise. The video, made
by Students for a Free Tibet, showed a protest outside the Chinese Consulate in New York City. (After the takedown notice was made public, the IOC
was hit with a firestorm of bad publicity and withdrew its request.)
These are not isolated examples of copyright owners being overly vigilant.
“There’s no question that takedown notices get overused,” says Jessica