Viacom sends YouTube a list of 100,000 videos that Viacom claims violate copyright, and under the terms of the Digital Millennium Copyright Act, YouTube has no practical choice except to take them down. Viacom did not look at all 100,000. Some certainly did not violate copyright. For this violation of First Amendment free speech rights, Viacom was penalized, um, wait, let me get out my calculator…yeah, nothing.

We need to stop giving the world’s Viacoms business incentives for violating our right to speak freely.

So, let me get a little more precise. The DMCA says that if Viacom sends a notice to YouTube that Carla’s “I love Jon Stewart” video violates copyright, YouTube can either take the video down, or leave it up and risk being held liable for copyright infringement. (Viacom need not offer any evidence.) So, of course YouTube takes it down. Carla gets a notification of this. If she files a counter-notification, YouTube has to put the video back up. (Carla can go to ChillingEffects.org to find an online form she can fill in to file her counter-notification.) Viacom thus has no reason not to sweep wide in its takedown demands.

The DMCA does have a provision (17 U.S.C. Section 512(f)) for filing false takedown notices or counter-notices:

(f) Misrepresentations.- Any person who knowingly materially misrepresents under this section-

(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Carla could therefore sue Viacom, but since the damage done to her by having her video unavailable for a couple of days is negligible, it’s not worth it to her.

But the damage done to free speech by giving over-lawyered corporations license to take down free expressions of ideas without even viewing them is considerable.

So, why don’t we ask Congress to make the penalties for violating the First Amendment rights of citizens as painful as the penalties for sharing an mp3 of Metallica’s “Don’t Tread on Me”?

Here are the penalties for violating copyright (as paraphrased in an email from Wendy Seltzer):

Statutory damages for copyright infringement range up to $150,000 per copyrighted work. The statute gives three ranges, $750-30,000 for ordinary infringement; up to $150,000 for willful infringement, and down to $200 for “innocent” infringement where the work was unmarked with copyright notice and the person had no reason to know his activity infringed. [source]

None of these quite cover the Viacom case, which is more like reckless infringement than innocent infringement; Viacom had to know it would catch some non-violating videos in its algorithmic sweep. So, we could do something like $150,000 for the first false takedown (since the company was willing to violate free speech) and $750 for each subsequent false takedown on the list.

Ouch? I hope so. Protecting free speech ought to be at least as important as protecting the rights of copyright holders.

[Tags: copyright dmca copyleft youtube viacom digital_rights everything_is_miscellaneous]

Cory Doctorow points out in an email that the Electronic Frontier Foundation (did you remember to join?) has been suing over bogus takedowns, and the courts have been awarding damages and fees. This, Cory points out, lays the groundwork for lawyers to take these cases on a contingency basis, making them feasible for people without a lot of resources.

Way to go, EFF! But I’d like to see the law acknowledge that infringing free speech is at least as bad as infringing copyright. Establishing statutory penalties such as those for copyright infringement would make that point at least symbolically.

Categories: Uncategorized dw