The Takedown Process is Broken. One Example: Vampires

Vampires and vampire slayers, specifically Edward and Buffy, can be found at the center of a fair use fight that encapsulates so much of what is wrong with the DMCA takedown process.

Three years ago, blogger and “pop culture hacker” Jonathan McIntosh uploaded to YouTube his mash-up video Edward v. Buffy, a social commentary that excerpts clips from both Twilight and Buffy the Vampire Slayer.  Because his video uses clips to create a completely new work that stands on its own, it is protected by copyright and is legally “fair use”.

At least that’s what McIntosh thought until this fall when Lionsgate Entertainment issued a series of aggressive takedown notices, pulling his popular video off YouTube and sending him into a legal battle that is still ongoing 3 months later. Read McIntosh’s highly informed blog about the process here.

McIntosh’s vampire video is a case to focus on for a few reasons. First, his video is undisputedly protected as fair use; in fact, this summer the US Copyright Office explicitly cited it as an example (large pdf., quote on pg. 133) of a proper exemption from DMCA takedowns precisely because of its status as fair use material. Second, it highlights the leniency with which copyright law handles bogus takedown notices; Lionsgate has repeatedly removed McIntosh’s fair use protected video apparently without fear of legal penalty. Finally, it shows the detrimentally slow pace at which DMCA takedowns are processed.

Lately, quite a few people have suggested that flaws in section 512 of US copyright law need improvement, including Senator Ron Wyden in a speech at CES yesterday. Here is what Public Knowledge proposes to fix some of the issues with the takedown process.

Penalize bogus takedowns. Someone who intentionally issues a takedown notice for material that isn’t actually infringing can be made to pay fees, but PK believes that these penalties aren’t acting as strong enough deterrents for those disregarding the law. We need to broaden the range of misrepresentations that merit discipline. We also need to extend the penalties to actual damages, including statutory damages that a judge can increase if the misrepresentation was intentional.

Restore removed content promptly. Currently, when a host service like YouTube is asked to restore a disputed video back to the site, they must wait 10 days before replacing it. For time sensitive issues, particularly of political or newsworthy nature, 10 days is too long to wait.  PK proposes that this wait time be eliminated so that content can be restored expeditiously.

For more on curbing abuses of copyright takedowns see PK’s Internet Blueprint.

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