Last week, The Next Web reported that Prince’s record label NPG Records had recently sent a DMCA takedown notice to Twitter regarding eight Vine posts. The use (and abuse) of the takedown process happens all too often. (According to Google’s recent Transparency Report, Google is nearing 20 million takedown notices a month from rights holders, and the numbers are continuing to rise.) This particular takedown incident is noteworthy for two reasons: the particular media format (Vine), and the claimant (Prince). This post describes the nature of the dispute and explores the copyright implications of short clips of protected material.
Vine is a service (currently only available on Apple devices) that Twitter recently acquired, on which users create and post six second repeating video clips. Sometimes they’re one continuous shot, other times it’s a choppy mashup of a few video clips. (If you’re unfamiliar with Vine, check out this Buzzfeed post with some very entertaining Vines by inimitable supermodel Tyra Banks.) According to The Next Web, although there are no other Vine takedowns on Chilling Effects, a “Twitter spokesperson tells us that this isn’t actually the first time Twitter has received takedown requests for content that appeared on Vine.”
That the first takedowns of Vines to appear on Chilling Effects were filed by Prince is oddly appropriate. Prince is notorious for his disdain for the Internet, and especially for filing the DMCA takedown against a YouTube clip that is now known as the infamous ‘dancing baby case’ (the still-ongoing Lenz v. Universal).
The Chilling Effects database entry on these takedowns is dated March 26, 2013, and was filed via email March 22, 2013. When I tried to visit the eight Vine URLs listed in the message from NPG Records each just said “Page not found” with a big frowny face.
However, I tried Googling each one, to see if any results came up for public Twitter results, and they did. The first one turned up a Vine user’s handle (@ZackTeibloom), and so I checked for the same handle on Twitter, and it turned out he had just had a conversation several hours earlier with Mike Masnick (@mmasnick) from Techdirt. Several of Zack Teibloom’s tweets are below:
It turns out all 8 of the Vines that were taken down belonged to him: “literally all 8 of them were mine. That was the exact email they sent me.”
He described the content of the eight Vines: “Two Purple Rain videos, Prince talking, Prince gyrating against a chair, Snoop from “The Wire” dancing, typical Prince show.”
He explained the takedown process (or lack thereof): “They sent the exact letter you posted and asked that I take the Vines down. Links to Twitter were removed by them.”
And he wrote that he was ‘amused’ and treated it like a C&D, which suggests that he didn’t know he could have opposed the takedown with a counter notification: ha, yeah that was his threat. I treated it like a cease and desist. All removed. Not worried. I was amused by it.
According to Teibloom’s tweets, it does not appear that he contested the takedown with a counter notification under 17 U.S.C. 512(g).
The DMCA notice and takedown regime has been essential in the rise of online platforms, particularly websites that host user-generated content. Without the certainty that services won’t be liable for costly statutory damages for copyright infringement based on content users uploaded — provided they comply expeditiously with notice and takedown procedures — there would be a lot less investment in online innovation. The 2011 Booz & Company study entitled ‘The Impact of U.S. Internet Copyright Regulations on Early-Stage Investment’ surveyed venture capitalists and found that a significant majority are deterred from investing due to the potential of liability for allegations of violating copyright, and would support an increase in clarity of copyright law and regulations.
There is thus much to be said for the certainty that the DMCA process provides. One of the downsides, however, of avoiding litigation is that the rights holders’ claims are not subject to review by a judge or lawyer, and so allegations of infringement tend to go unchallenged. This may not be a problem with regard to cases of willful infringers, but in many cases (such as, arguably, these Vines), the circumstances are not clear cut. Does the claimant have the right to object to the use? Would the use of the work qualify as fair use? Is it even infringing in the first place?