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A New Case (of Chilling Effects?) Against DMCA Counter-Notice Senders

E. TV Networks has filed copyright infringement claims in federal district court against Google and sixteen YouTube users. The targeted users sent DMCA counter-notices to YouTube following E. TV’s requested takedowns of videos containing copyrighted material from performances by rapper Chief Keef. The users named in the case come from countries around the world, including the UK, Poland, and Mexico, in addition to the United States. The suit claims an astonishing $20M in monetary damages arising from just 39 uploads. Thirteen of the defendants are accused of uploading only a single infringing video; the remaining three are accused of uploading two, nine, and fifteen. The complaint asks for only injunctive relief against Google, which is safe harbored from claims for monetary damages through its compliance with the DMCA’s notice and takedown framework. The monetary damages are therefore all claimed against the named users.

This case was filed as Congress contemplates revisions to the safe harbors in Section 512, and as players on both sides of the copyright wars complain about chronic abuse in the notice and counter-notice system. The DMCA’s notice and takedown framework has long and fairly been faulted for stacking the deck in favor of takedown and against the filing of counter-notices. The imbalance comes in part from the fact that filing counter-notices exposes users like the ones now targeted by E. TV to litigation by deep-pocketed copyright owners seeking staggering statutory damages that bear no credible relationship to sustained losses. Just two weeks ago, the Department of Commerce’s Internet Policy Task Force recommended changes to the Copyright Act’s statutory damages provisions to rein in excessive claims against individual users. Other efforts to correct the structural imbalance in the safe harbor framework are coming from the private sector and the courts. Last November, YouTube announced that it would begin funding legal representation for an unspecified subset of its users to combat abusive DMCA takedown practices by copyright owners. While copyright owners have long maintained that any unauthorized use of their material, no matter how minimal or potentially fair, justifies removal under the DMCA, the Ninth Circuit recently rejected that position. In Lenz v. Universal, the court held in September that copyright owners sending takedown notices must first consider whether the material they want removed has been fairly used.  

It’s not possible to assess the merits of E. TV’s copyright claims against the users in this case, because the videos in suit appear to be no longer available for viewing. The merits are really beside the point, however, for two reasons: (1) the defendants, even if they have legitimate fair use claims, will probably quickly conclude that the cost and the risk of litigating are way too high; and (2) the plaintiff’s broader goal of making users think twice and hard about filing counter-notices was achieved with the filing, at least to the extent that the case gets publicity among YouTube users. This is litigation for the sake of example, like the RIAA’s suits against P2P file sharers in the early 2000s. It's just unfortunately unknowable without more information what the users here are an example of. All we know is that they filed counter-notices. And then got sued. For crazy amounts of money.     

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