Coming to You Soon from Beijing: Misuse of the Digital Millennium Copyright Act
DisCo is taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, addressing what’s at stake and what we need to do to make sure that copyright promotes creativity and innovation.
The 2022 Winter Olympics in Beijing begin on February 4, and one can anticipate a copyright-related cycle of outrage and misinformation. NBC will broadcast the events; users will copy and repost particularly inspiring moments on social media; NBC will complain about this alleged “infringement” to the social media services; in response, the social media services will remove the user posts; users (and likely some politicians) will express outrage over the services’ “censorship” of the users; and the mainstream media will cover the controversy by misstating the relevant legal issues and quoting “experts” who will blame the social media services’ market power and Section 230 of the Communications Decency Act.
However, the root of the problem will not be concentration in the tech industry nor Section 230. Rather, it will be the broadcasters such as NBC and their misuse of Section 512 of the Digital Millennium Copyright Act (“DMCA”).
A user’s posting of inspiring moments from the broadcast of a sporting event is a fair use under the four factors set forth in 17 U.S.C. § 107 of the Copyright Act. (1) A user’s post is noncommercial and transformative; while the broadcaster is broadcasting the event to document the event itself, the user is reposting an image or a short clip to express her response to the event, e.g., admiration of the athlete’s accomplishment. (2) The broadcast is nonfiction coverage of a live event, which favors fair use. (3) The clips are only a short segment of a much longer event, and (4) as such do not harm the market for the broadcast of the entire event.
Notwithstanding the lawfulness of users’ posts, broadcasters of the Olympics and other sporting events are quick to send the social media services takedown notices under Section 512 of the DMCA. Section 512 was developed by Congress in 1998 to encourage Internet services to respond expeditiously to rightsholders’ claims of infringing activity. Courts have found that rightsholders must consider fair use before sending an Internet service a DMCA takedown notice. Unfortunately, most rightsholders use software to generate takedown notices automatically whenever the software detects the use of the rightsholders’ content, without considering fair use. This is a flagrant abuse of the DMCA, as DisCo has previously documented. (1, 2, 3)
However, once the social media service receives the takedown notice, especially from a well-known rightsholder, the service is hard-pressed not to remove the content referenced in the notice. The service has no way of knowing that the rightsholder did not, in fact, consider fair use before issuing the notice. Under the DMCA’s architecture, the service provider is simply supposed to rely on the rightsholder’s representation in its takedown notice that it “has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.”
Moreover, the consequences of an Internet service not responding expeditiously to takedown notices a court subsequently decides complied with the DMCA could be truly draconian. A court imposed damages of $1 billion on Cox Communications after finding that Cox failed to meet its obligations under the DMCA.
Regardless of whether the Internet service is a global corporation with a market capitalization of $1 trillion or a startup operating on a shoestring budget, it will comply with the DMCA’s notice and takedown requirements. And so long as rightsholders issue takedown notices without considering fair use, individuals’ posts of their favorite Olympic moments will get summarily removed from the Internet.