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The Sunday Times' absurd DMCA takedown notice is part of a larger problem

The Sunday Times' absurd DMCA takedown notice is part of a larger problem


An upcoming case about a dancing baby could rein in DMCA abuse

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On Monday, The Sunday Times sent The Intercept a DMCA notice over an article headlined, "The Sunday Times’ Snowden Story is Journalism at Its Worst — and Filled With Falsehoods." The article, by Glenn Greenwald, prompted The Sunday Times to "quietly remove" major claims in their own story, such as the claim that Greenwald’s life partner David Miranda had met with Snowden in Moscow prior to being detained in Heathrow.

The target of the takedown notice was an embedded image of the Sunday Times front page, which the Sunday Times tweeted on June 13th. Greenwald has stated that he does not intend to comply with the DMCA notice, and it’s likely invalid, according to Corynne McSherry, legal director of the Electronic Frontier Foundation, who calls the notice "ridiculous." McSherry pointed out that the Digital Millennium Copyright Act (DMCA) doesn’t even apply here because the notice-and-takedown procedure is for "intermediaries"—sites like YouTube, Facebook, or Twitter that host content at the direction of their users.

While The Sunday Times has already received some ridicule for sending out an invalid notice in what appears to be an ill-advised attempt to squelch criticism, it may face little to no legal repercussions. That’s something that the EFF has been fighting for years to change, by arguing for a stronger interpretation of 17 U.S.C. 512(f), which bars "knowing material misrepresentation" of DMCA notices. An important court date awaits them on July 7th, when the Ninth Circuit Court of Appeals will hear Lenz v. Universal — more popularly known as the "dancing baby case."

Section 512(f) is the only counterbalance written into the DMCA meant to curb misuse of the law. The question in Lenz is whether the provision can be invoked when someone tries to take something down without considering whether it’s covered under fair use. In 2007, Stephanie Lenz, the mother of two young children, posted a 30-second clip on YouTube featuring 18-month-old Holden Lenz pushing a toy stroller and jiggling excitedly while the radio plays in the background. The sound quality is poor, and the music is nearly indistinct, but Prince fans will recognize the song "Let’s Go Crazy."

Universal Music Group issued a DMCA notice, and YouTube took it down. Weeks passed. Stephanie Lenz was angry. The EFF came to her aid after one of their attorneys helped her file a counter-notice; the video was restored. But then the EFF then took it a step further. A DMCA takedown for less than 30 seconds of fuzzy background audio was nonsense, especially coming from a well-monied and well-lawyered corporation like Universal. Universal had abused the DMCA, and under 512(f), they ought to pay.

It seems simple enough, but things didn’t pan out exactly as the EFF had hoped. The lawsuit started eight years ago and is still ongoing. In January 2013, the judge denied motions for summary judgment, meaning that the EFF and Universal would have to go to trial. His opinion in Lenz may have rendered 512(f) into a toothless law. In the judge’s words, Lenz had to show "Universal had some actual knowledge that its takedown notice contained a material misrepresentation." It wasn’t enough that Universal had claimed that Lenz was violating copyright, even while failing to consider if it had been a fair use. Lenz was supposed to show something more. And on top of that, the judge ruled that even if Lenz ended up winning at trial, she was entitled to, at most, $1,275 for the 4.25 hours that an EFF attorney spent filing a counter-notice. She wasn’t entitled to damages for "loss of YouTube’s hosting services and chilling of her free speech" or "lost time and resources," or even attorneys’ fees for the entire lawsuit in the first place. In other words, plaintiffs like Lenz would have to pay huge amounts of legal fees in order to be able to recoup smaller amounts of legal fees incurred from fighting abusive DMCA notices. Commentators like Eric Goldman, professor at Santa Clara University School of Law, were declaring that "17 U.S.C. 512(f) is Dead."

"The judge's opinion may have rendered 512(f) a toothless law."

The EFF appealed the decision to the Ninth Circuit, which will finally hear arguments in the case next month.

"I think 512(f) has been misinterpreted and that’s why the Lenz case is so important," said McSherry. "This is an opportunity for the Ninth Circuit to set the record straight. If you go to the statutes, it’s really pretty straightforward." The EFF is hoping the Ninth Circuit will make it clear that "before you send a takedown notice under the DMCA, you have to consider whether the use in question is authorized by law. Not just authorized by the owner but authorized by law." And on top of that, plaintiffs like Lenz should be entitled to any damages. "That’s what Congress said: any damages. That means any and all damages, including attorneys’ fees and costs."

DMCA abuse is fairly common

DMCA abuse, as The Intercept has learned, is fairly common. For example, both Twitter and Wordpress estimate that approximately one-third of DMCA notices sent to them are not worthy of compliance. But cases about DMCA abuse are rare. Lenz is important because it’s one of the few cases out there about 512(f). To date, only two plaintiffs have ever won 512(f) cases. One case was Online Policy Group v. Diebold (2005), where the voting machine manufacturer attempted to take down information about security flaws in its machines. The other, Automattic v. Steiner, was decided just this March. In Automattic, blogging platform Wordpress was hit with a DMCA notice by homophobic organization "Straight Pride UK," over a blog that had published an unflattering press statement that Straight Pride UK had written themselves. As the case played out, Straight Pride UK vanished into thin air, and Wordpress ended up winning the suit — possibly, as Eric Goldman asserts, because Straight Pride UK defaulted by disappearing.

If the Ninth Circuit reverses Lenz, 512(f) could finally live up to its potential. "We have 10 years of takedown abuse to show that this is actually a real problem. The statute needs to be interpreted correctly so it can actually help users in situations like [The Intercept’s], situations where you’ve got someone reaching for the DMCA as a tool, not because there’s any legitimate infringement, but because they want to shut someone up," said McSherry.

Media organizations have used the DMCA to get back at each other for criticism

The Sunday Times’ defective DMCA notice could set off the Streisand Effect, at most, and will probably go no farther. But DMCA abuse in the media will continue. McSherry predicts that it will run rampant in the coming campaign season. In the past, media organizations from opposite ends of the political spectrum have used the DMCA to get back at each other for criticism — for example, in 2012 right-wing pundit Rush Limbaugh used the DMCA to take down a 7-minute compilation of "Rush Limbaugh’s most vile smears" against Sandra Fluke, uploaded to YouTube by left-wing publication Daily Kos. "Of all organizations, they should know better than to abuse the DMCA in this way," said McSherry. "They should be defenders of free speech, they should be defenders of fair use because they rely on it themselves."

And although a publication can just shrug off a defective DMCA notice, the growing trend in digital journalism is a reliance on third-party platforms like Facebook, which are indeed the intermediaries that the DMCA actually applies to. See, for example, Facebook’s Instant Articles, where stories from outlets like The New York Times and BuzzFeed are hosted on Facebook’s servers. What will happen when Facebook gets hit with DMCA notices intended to censor those articles? With 512(f) in its current state, there are few incentives for third-party platforms to stick up for their users in the face of even a defective notice. What happens with DMCA abuse, censorship, and digital journalism in the next few years may really all depend on how that dancing baby case plays out.