Take Down Stay Down

After a successful trial MySpace has announced its novel “Take Down Stay Down” campaign. The idea is that upon reception of notice about unauthorized upload of copyrighted material, MySpace will not only remove the allegedly infringing file, but also take digital fingerprint of the accused content. It will then stored the information - which is essentially like shorthand numbers uniquely representing the file – in a database, making sure that the content will not be reposted on MySpace services.

It is going to work like this:

When a content owner informs MySpace that a user has improperly posted its content onto MySpace Videos, not only is the video promptly removed by MySpace, but MySpace also creates a digital fingerprint of the video content and adds it to its copyright filter, which is based on industry-leading Audible Magic technology. If any user tries to upload the same content that has been removed, the filter will recognize the digital fingerprint and block the content from being uploaded. This way, when copyright owners remove content from MySpace, they will have greater comfort that it will stay down and not be reposted.

A few observations. First, under this arrangement copyright holders remain responsible for identifying the content themselves. MySpace will not do the initial filtering without individual notices. This might fall a bit shorter of fulfilling the content industry’s sweetest dream, but then again, a major breakthrough.

Second, is appease that MySpace will promptly take down the suspect files, without further inspection, upon reception of proper notice in line with the company policy that mirrors the DMCA procedure. Proper notice alone, based on the statement of the notifying party, is all that is needed to trigger the process: A digital fingerprint will be taken and the file will be doomed to obsolescence on the popular social networking site (and later perhaps also on other sites belonging to News Corp.)

This much is pretty straightforward. It might get murky when a MySpace user files a counter notification, stating, in the language of the DMCA, “a good faith belief that the material was removed or disabled as a result of mistake or misidentification.” By the way, the language of Section 512(g)(3)(C) does not contemplate other reasons that could underlie a counter notification. One may assume that a take-down notice targeting noninfringing activity should be classified as “mistake” or “misidentification” - though in reality it is often neither. A recent example of abusing the procedure in an attempt to silence criticism is the one of Uri Geller.

Sure enough, MySpace does not have a general legal obligation to host any content, whether infringing or not. Nor is the company obligated under the DMCA to repost the removed content after it has been shown that the user did not infringe. Generally, if the service provider does not implement a certain procedure that ensures the repost of removed material - stipulated in Section 512(g)(2) - it cannot enjoy a general immunity from third-party liability as a result of the removal. Thus, MySpace and other service providers are free to indiscriminately and irreversibly execute take-down notifications at the price of giving up their third-party immunity, shielding, e.g., from legal claims invoked by angry subscribers that complain about the company manipulating “their spaces”.

Alternatively, providers may comply with Section 512(g)(2) and repost the content if the notifying party does not filed an action seeking a court order within two weeks after the counter notification was received. This is a kind of “double immunity” track, securing the service provider from copyright claims on one front, and from third parties’ claims on the other front.

At bottom, service provider are not obligated to follow the double immunity track, but if they do, the content initially removed will not necessarily “stay down” - as the catchy slogan suggests. Either way, a digital fingerprint will be taken and added to an ever-growing database of condemned files. It is not clear whether MySpace would choose to pursue the double immunity track. It is further unclear what it plans to do with the fingerprint once a take-down notice proved baseless.

If users are unhappy with the new policy they can always switch to an alternative platform, but for those who have already invested much time and energy in building up their spaces the switching costs are painfully high. The problem can become more general if fingerprinting and stay-down policies turn into a trend. For instance, Dailymotion, reportedly the world's largest independent video sharing site, announced last week it will implement the same fingerprinting technology. And of course, the billion dollars’ question - what is You-Tube up to?

Fingerprinting and other copyright filtering technologies will remain a hot topic in the near future as more market leaders are expected to be drawn into this copyright swamp. The mechanism adopted by MySpace gives rise to difficult legal questions. The blocking of subsequent attempts to upload the content is automatic and circumstances-insensitive. It does not require any further statement or declaration (under penalty of perjury or otherwise) by content owners. Yet posting the same work by one user in an infringing manner does not mean that posting the same work (or a portion thereof) by another would necessarily infringe as well. The latter could be protected under the fair use doctrine, for example, if the second attempt to post the file actually incorporates a smaller portion of the work as part of a derivative work aiming at criticizing the content owner. Another question is whether sabotaging the function of the filtering system will constitute a violation of the anticircumvention provisions. Would hacking into the database of fingerprints and manipulating the data violate section 1201? Does manipulation of the file to represent an altered value that nevertheless passes the filter constitute circumvention? What about section 1202?

It is important to clearly state the legitimate objections to the use of such DRMs before they become industry standard. People misuse the DMCA take-down procedure all the time and as it happens, only the most notorious and frivolous attempts receive publicity and face effective opposition. Usually, the content is taken down upon notice, whether infringing or not, without anyone caring about it. The “stay down” system will ensure that the content is further suppressed, again, without human decision-making and indication of infringement. The effect of private censorship made possible under the take-down policy is likely to intensify. The nightmare scenario is that fingerprinting are used by multiple large providers who exchange fingerprinting information while blocking also content that was taken down by other providers.

Users can always threat to boycott providers who implement blind take-down policies, or even try to sue them for unjustified removal of content based on a misuse of the take-down notice (what cause of action?) Whether this may convince ISPs to abandon the “take down stay down” policy or not, this slogan conjured in my mind the first amendment doctrine of prior restraints. This doctrine is typically relevant when the government’s suppression of speech takes place before speech had the chance to happen. The classic example is licensing laws, for example, a governmental licensing requirement imposed on newspapers publishers. This doctrine is rarely mentioned in the context of copyright. I assume that one reason is that state-supported infringement penalties and remedies are usually imposed after the speech has occurred, not beforehand.

The Supreme Court once held that “the special vice of prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.” Pittsburgh Press, 413 U.S. 376, 390 (1973). (This statement was made in the context of upholding a municipal ordinance which prohibited newspaper from carrying sex designated advertising columns for nonexempt job opportunities as not violating the newspaper publisher's First Amendment rights.)

Intuitively, the “stay down” feature can indeed suppress communication before it happens and before anyone has the chance to evaluate the justifications for suppression, either because the speech is obscene (as in the case quoted above) or because it infringes on copyrights. Of course, the two issues are not cut from the same cloth and one can doubt whether the first amendment is at all relevant in the first place. Service providers are not the government, and the government does not obligate anyone to use "stay down" DRMs. Still, the smell of censorship remains in the air, not less objectionable even when championed by private companies and in the name of copyright.

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