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Platforms Taking Steps to Preserve Fair Use

· November 20, 2015

Yesterday Google announced a new program to provide legal support for certain creators on its YouTube platform whose non-infringing videos have been targeted for DMCA takedown notices.  EFF reports that under the Fair Use Protection program, YouTube will cover legal costs up to $1 million in relation to videos that YouTube has determined are clearly lawful fair use — starting with these four videos.  DisCo has previously covered the troubling phenomenon of DMCA abuse [1] [2] [3], where copyright takedowns are used to silence criticism and dissent.  In an amicus brief filed by Automattic, Google, Twitter, and Tumblr, in the Ninth Circuit Lenz case last month, the Internet platforms expressed concerns with DMCA abuse, identifying a laundry list of examples:

a manufacturer of electronic voting machines sending takedown notices, just prior to an election, to suppress criticism of the machines’ integrity and security; a religious organization’s attempt to silence its critics by sending out takedown notices; a well-known fashion company’s attempt to silence a blogger for criticizing the company for digitally altering an image in its advertisement to portray a model as unnaturally skinny; and several examples posted on EFF’s “Takedown Hall of Shame.”

YouTube isn’t alone in implementing policies to protect users engaged in fair use of content.  Automattic has also been working to give its users more certainty about relying on fair use.  The aforementioned brief explained that Automattic has been defending users in court, and “recently brought two misrepresentation suits under the DMCA against parties who submitted abusive DMCA notices.”  (Automattic Inc., et al. v. Steiner, 82 F. Supp. 3d 1011 (N.D. Cal. 2015); Automattic Inc., et al. v. Chatwal, No. 13-cv-5411 (N.D. Cal. filed Nov. 21, 2013).)  The brief also shared some noteworthy statistics from Automattic’s latest transparency report, which reveals how much DMCA abuse Automattic has to regularly reject:

For example, many times each week, amicus Automattic receives a takedown notice that appears motivated not by an interest in protecting copyright but a desire to improperly silence critics. Indeed, approximately 10% of the takedown notices Automattic receives are rejected as abusive.

Initiatives like Automattic’s defense of its users against abusive DMCA takedown notices and Google’s plan to cover legal costs if necessary are important efforts to help ensure that Internet users can exercise their right to fair use.  While companies like Google and Automattic may have the financial and legal resources to defend against a baseless copyright suit, the choice to file a counter-notice after receiving a DMCA takedown notice has to be made by the end user, who most often does not have the same resources and thus must make a different calculation of risk.  YouTube’s new initiative helps ensure that legitimate speech isn’t suppressed because the user cannot afford counsel to vindicate their rights.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.