DMCA notices in 2020 are weird

I finally got caught violating copyrighted material.

It finally happened to me. After 24 years of being an online denizen, I got served a DMCA takedown notice.

The offense? A tweet from 2018 (yes, there is basically no statute of limitations for online copyright) where I posted a video of my then four-year-old daughter adorably dancing to Beyonce’s “Single Ladies” music video. 

According to the takedown request email from IFPI, “a trade association that represents around 1,300 major and independent record companies in the US and internationally who create, manufacture and distribute sound recordings,” (which I’ve pasted in full below), this tweet was flagged because

Unauthorised copies of sound recordings that are freely available, especially pre-release recordings, cause substantial damage to the IFPI Represented Companies every hour and day they remain available. 

Yes; a tweet of my kid dancing to a Beyonce video “cause(s) substantial damage...every hour and day” it “remain(s) available.”

This, my friends, is why we can’t have nice things. (But it’s also fitting that I got this notification today, on what is Constitution Day; on this day in 1789, 39 delegates signed the Constitution.)

(Image via EFF)

Adam Singer, a former Google executive and currently the CMO of Think3, a fund helping entrepreneurs sell their companies, in response to my tweet about le affair DMCA, said that he once had music that he recorded taken down from Spotify because of a false DMCA notice.

Adam Singer @AdamSinger

@joshsternberg @mmasnick Big labels breaking the internet is low key one of the dumbest things that has happened in our lifetimes. Their bias of assuming everyone is a pirate is infuriating. Most people never pirate anything and are punitively punished here, esp remix/non-profit artists.

Both Twitter and Graeme Grant, director of content protection & enforcement at IFPI, did not respond to my requests for comment. I will update on the site should I hear back.

The DMCA was passed the same year Google was born, 1998. If you have a few minutes and want to see how Congress and President Clinton viewed the digital world, here you go. But it’s important to remember that the genesis to this law is rooted in rights owners (most notably Hollywood and the record industry) finding their IP getting passed along to people through peer-to-peer networking and newfangled online technologies.

The law was instrumental in shaping the internet we have today, allowing it to boom. 

In 2008, Wired celebrated the 10th anniversary of the passing of the legislation, noting:

"Based on first-hand experience, the studios would not have embraced the DVD technology, at least not as quickly as they did," says Fritz Attaway, a policy adviser for the Motion Picture Association of America, and its lead lobbyist during DMCA congressional negotiations. "There was tremendous concern in releasing movies in this greatly improved format that could not be protected against duplication."

Still, the DMCA's separate notice-and-takedown provision has proven even more crucial to the growth of the internet. The provision grants immunity to so-called "intermediaries" — ISPs, for example — for any copyright infringement by their users. To earn that so-called "safe harbor," the intermediary such as video-sharing site YouTube must promptly remove material if the copyright holder sends a takedown notice. But the company can restore the content if the user certifies that it's noninfringing, and the copyright claimant fails to sue.

But in 2008, Facebook was yet the behemoth it is today; Twitter was still just about telling friends what you had for lunch; Spotify was just a toddler; Instagram and TikTok didn’t exist. 

In 2014, the last year the Electronic Frontier Foundation posted its semi-annual “unintended consequences of the DMCA, it wrote:

The “anti-circumvention” provisions of the Digital Millennium Copyright Act (“DMCA”), codified in section 1201 of the Copyright Act, have not been used as Congress envisioned. The law was ostensibly intended to stop copyright infringers from defeating anti-piracy protections added to copyrighted works. In practice, the anti-circumvention provisions have been used to stifle a wide array of legitimate activities. As a result, the DMCA has become a serious threat to several important public policy priorities.

Most notably, it argues, the law jeopardizes free speech and fair use. 

Copyright is important. Intellectual property is vital to businesses. Look no further than the streaming wars between the media companies that have started their own services.

Each service, the pluses (Disney+; Paramount+ etc) and the Peacocks of the world, realized that by allowing Netflix to their library (i.e., their IP) they’re losing out lots of money. And as new forms of communication, from gifs to video sharing, these companies have also taken on perhaps a more aggressive stance on making sure their IP isn’t used. 

At a time when free speech is the cornerstone of a political ideology and debate that affects everything from how we view content online to how we protect ourselves during a pandemic, and when fair use is seemingly tested each day across the web, it’s time to revisit the law and make common sense updates.

In February, the Senate Subcommittee on Intellectual Property began hearings to actually do so. Maybe.

EFF wrote in February:

This hearing had two panels. The first featured four panelists who were involved in the creation of the DMCA 22 years ago. The second panel featured four law professors talking about the current state of the law. A theme emerged early in the first panel and continued in the second: the conversation about the DMCA should not focus on whether it is and is not working for companies, be they Internet platforms, major labels and studios, or even, say, car manufacturers. Users—be they artists, musicians, satirists, parents who want to share videos of their kids, nonprofits trying to make change, repair shops or researchers—need a place and a voice. 

The intent of the DMCA 22 years ago was to discourage copyright infringement but create space for innovation and expression, for individuals as well as Hollywood and service providers. Over the course of the last two decades, however,  many have forgotten who is supposed to occupy that space. As we revisit this law over the course of many hearings this year, we need to remember that this is not “Big Content v Big Tech” and ensure that users take center stage. Thankfully, at least at this hearing, there were people reminding Congress of this fact.

The challenge, of course, will come in how much money lawyers make on sending out DMCA takedowns, and all that goes into the legal maneuvering of asking people who take videos of their kids dancing to a musician. 

Here’s the email I received this morning, via Twitter Support:

September 16, 2020

Dear Sir/Madam,

I am contacting you on behalf of the International Federation of the Phonographic Industry (“IFPI”) and the record companies it represents. The IFPI is a trade association that represents around 1,300 major and independent record companies in the US and internationally who create, manufacture and distribute sound recordings (the “IFPI Represented Companies”).

The information set forth in this notice is accurate and, under penalty of perjury, we submit that we are authorised to act on behalf of the IFPI Represented Companies in matters involving the infringement of exclusive rights that the IFPI Represented Companies hold in their sound recordings, including enforcing their copyrights and other legal rights on the Internet.

We have learned that your service is making available, distributing and/or referring/linking users to infringing copies of the following sound recordings, the copyrights in which are exclusively owned or controlled by one or more IFPI Represented Companies:

Josh here: there was a list of offending copyright tweets; Substack said the email was too long, so I cut them.

(the “IFPI Represented Companies Sound Recording/s”).

We have included in the table above the URL for the locations where we have identified instances of making available, distributing and/or referring/linking users to the IFPI Represented Companies’ Sound Recordings on your service.

We have a good faith belief that the above-described activity is not authorised by the copyright owner, its agent, or the law.

We are asking for your immediate assistance in stopping this unauthorised activity. We require you to take action to immediately cease making available, distributing and/or referring/linking users to infringing copies of the IFPI Represented Companies’ Sound Recordings on your service. That action should include, where applicable:

• Deleting all copies from your service’s servers; and

• Deleting and/or disabling all URLs;

The action required should be taken not only in relation to the URLs/locations indicated in the notice, but in relation to all instances of making available, distributing and/or referring/linking users to infringing copies of the IFPI Represented Companies’ Sound Recordings on your service.

Further, we ask you to take reasonable steps to prevent further instances of making available, distributing and/or referring/linking users to infringing copies of the IFPI Represented Companies’ Sound Recordings on your service.

Our top priority is to prevent the continued availability of the IFPI Represented Companies’ content on the internet. Unauthorised copies of sound recordings that are freely available, especially pre-release recordings, cause substantial damage to the IFPI Represented Companies every hour and day they remain available. In sending this notice we are providing you with specific knowledge of the unauthorised activity detailed above and are seeking to ensure that infringing content is removed from the internet as quickly as possible through your cooperation. However, please note that we do not admit that we or the IFPI Represented Companies are responsible for detecting infringing material and notifying you of it.

Our use of a notice in this form, as required by you, is meant to facilitate your removal of the infringing material listed above and we neither admit nor accept that you are a 'service provider' for the purposes of the United States’ Digital Millennium Copyright Act (DMCA), or any similar legislation in another jurisdiction, or that it is necessary to serve, or that you are entitled to be served, with such a notice. IFPI itself and on behalf of the IFPI Represented Companies expressly reserves all rights in this regard.

In addition, this notice does not constitute a waiver of any right to recover damages incurred by virtue of any unauthorised activities described in this notice, and such rights as well as claims for other relief under the laws of the United States or any applicable legislation in any other jurisdiction, are hereby expressly reserved.

Thank you for allowing me in your inbox today, and every day. If you have tips, thoughts on the newsletter, or want to serve me a DMCA takedown email, drop me a line. Or you can follow me on Twitter. If you liked this edition, please consider sharing across your social platforms or convince your colleagues to sign up. I promise to not send a DMCA notice.

The Grateful Dead, “I Fought the Law” (live 4/5/93 Nassau)

Some interesting links:

For platforms:

• TikTok's future is uncertain as backlash mounts in Washington (WaPo)

• Facebook Needs Trump Even More Than Trump Needs Facebook (Bloomberg Businessweek)

• Facebook says it removed 1 million groups in past year for breaking rules (NBC News)

• NYT starts “Daily Distortions”, alerting readers to disinformation spreading on the web (NYT)

• NYT, Facebook launch multi-year augmented reality reporting project (Axios)

For creatives:

• Joaquin Oliver, Parkland Shooting Victim, Tours MLB Ballparks as a Cardboard Cutout (Muse)

For media criticism:

• 16 Straight Hours Inside The Alternate Reality Of Pro-Trump TV Channel OAN (HuffPost)

• McClatchy’s 30 newspapers probably won’t be endorsing a president this year (NYT)

For TV buyers:

• NBCU Moves Past Campaign Outcome Guarantees to Measure Marketers’ Total Investment Impact (Adweek)