Takedown shakedown

You just posted a sweet, sweet remix on YouTube last night and you can’t wait to get home and see how many views it’s racked up. You sit down, log in, and instantly go from hopeful to crestfallen. You’ve received notice that your video contains infringing content and has been taken down. You certainly didn’t mean to infringe upon anyone’s intellectual property, but you’re unsure if there’s anything you can do about it now.

Intellectual property is a term that’s thrown around pretty loosely these days, a catch-all for the ownership of intangibles, not pointing to any one singular thing. It’s a misleading term, inclining one to believe there might actually be some overarching and unifying policy behind it. There’s not, and there’s been some controversy around how it seems to paint itself as doing so.

Implicit in the term is a bias. Parker Higgins, director of copyright activism at the Electronic Frontier Foundation, explains: “It does require some, you know, puppet master pulling the strings, but there is reason to think that the people who are pushing for thicker and stronger copyright term benefit from (A) all these things being conflated and (B) them all being called property.” There is a stronger sense of ownership, a sense in which when it’s called “property,” something as intangible as an idea might be perceived of as belonging squarely to one person or one party and not to another.

Free software activist Richard Stallman corroborates: the term “lumps three different things, with three different sets of laws, into one confusing pot and then corporations get to benefit from the confusion.” When we talk about intellectual property, what we’re actually talking about is one of copyright, patent, or trademark, each of which is in effect toward a very different end. It is a mistake to think these generalize into a coherent whole. Higgins emphasizes that “copyright and patent are very different, but even more so with copyright and trademark — the purpose of the law is almost opposite.”

Whereas trademark law is designed to protect consumers, to let them know what they are buying and that the instances of branding they run into are genuine, copyright and patent are intended to protect the rights of creators, encouraging them to continue creating by helping them gain recognition for their efforts.

Copyright protects the expression of ideas, often in the form of artistic works.

Patents protect the ideas themselves, encouraging their publication by granting a temporary monopoly over derivative manufacturing.

The three areas aren’t all equally broken. Copyright, says Higgins, is “disproportionately deserving” of our attention. While the patent policy arena certainly is charged, the major powers are more evenly distributed across the playing fields. Corporations both generate patents and license them, and so there is equal industrial pressure coming from both sides. In copyright, however, on the one side there’s an industry churning out copyrighted content, and on the other there’s just individuals, smaller groups who want to continue creating and who don’t have legal teams, and so, Higgins explains, “the pressure’s always been in one direction. It’s just been a ratchet towards thicker and stronger and more convoluted copyright laws.”

There’s a sense in which the tightening of the copyright law Higgins refers to might not be interpreted as such. Instead, the newer policies might be regarded as maintaining previous levels of severity but with updated terms to account for the advent of new technologies. Higgins concedes this is one narrative. Fair use and fair dealing, the provisions which govern how and where copyrighted material can be used without infringement in the US and Canada respectively, have gotten stronger, and so, Higgins says, “the course of terms has to have gotten longer to balance that out.”

However, there’s also a sense in which it’s not that simple. What the copyright system is doing now could be likened to what in the past would have been stopping bootleggers with major operations. Previously, infringement wasn’t possible without some serious real estate and capital to get you going. It likely involved a factory, a work fleet, and involvement in some supply chain. In the digital age, the bootlegger and his whole operation have been reduced to some guy with an internet connection. The barriers to production are incredibly low.

This shift we’ve observed in the digital era complicates things. “I think there’s something fundamentally different about going after that bootlegger when it’s just somebody with a DVD drive,” Higgins comments, “especially because the way we know how to do that, the way the only laws have been proposed, is to say that anyone who has a DVD drive … is potentially one of these bootlegger who 15 years ago would have had a factory.”

So, the recourse policy makers have taken has been to simply regulate everyone with a computer, and that, says Higgins, “is a really grave problem. It’s not even just regulation, it’s making sure that you know we can surveil anyone and everyone in order to find out if they’re copying, and that kind of thing is a really unprecedented intrusion into the life of people.” The policy backing these kinds of actions is arguably qualitatively different than previous iterations of policy designed to shut down coordinated operations.

Since the Digital Millennium Copyright Act (DMCA) passed in 1998, US service providers must uphold a “Notice and Takedown” regime in order to waive themselves of the legal liability associated with their hosted content. Canada has a similar but slightly less stringent “Notice and Notice” policy, first legislated in 2005, and reified in the the Copyright Modernization Act of 2012.

However, with the majority leading Internet services being hosted in the States, YouTube, Facebook, Twitter, and Google included, Canadians and other groups increasingly have to be aware of the policies to which our southern neighbours are holding these companies, and they’re not pretty.

In order to uphold the Notice and Takedown regime, service providers are required to have an infrastructure in place which allows people to file notices on suspicious content. Upon receiving the notice, the provider then has 24 hours to take down the allegedly infringing content, or else bear the full burden of the legal liability attached to it.

This system isn’t great. On the one hand, it provides an immediate silencing vector for disgruntled parties. The issuer of the notice isn’t required to provide any proof of copyright infringement to initiate this process. Instead, the onus is on the owner of the content to file a counter notice after the fact if they feel the takedown was in error.

The Chilling Effects clearinghouse, an archive of DMCA takedown notices, shows us that not many individuals actually take this kind of pushback upon themselves, and unsurprisingly, because stepping into the line of fire of copyright litigation is something which, in the US, could wind up costing you up to $150,000, a nontrivial amount by any standards. As a result, this system sees a large number of non-infringing works go down and stay down, limiting the speech of others who were never doing anything wrong.

On the other hand, the Notice and Takedown system, when it is reporting true infringement, effects change that is hopelessly impermanent. Higgins likens it to a whack-a-mole situation, where one infringement is beaten down only to see the same thing pop up in a different spot a few seconds later. He concedes that, “if your goal is to make sure that there’s no infringing content on the internet, then the tools we have now are DMCA takedown notices and you[‘d] have to file literally millions of those a week.” Indeed, Google Search gets around seven million takedown orders per week, not including those issued on any of their secondary assets like YouTube. “You’d need new tools,” Higgins concludes. “The takedown notices that we have just don’t do that job.”

One thing’s for sure: it doesn’t matter which side of the law you’re standing on, the policies in their current instantiation are definitely, definitely broken. At least in the US and the EU and Australia, lawmakers have declared that copyright law is open for revision, but those revisions just can’t get here soon enough.