Takedown, or Shakedown?

Latest developments in the ongoing legal battle between actress Cindy Lee Garcia – one of the (allegedly unwitting) stars of the infamous anti-Islam video, “Innocence of Muslims” – and the film’s makers and online distributors has put the spotlight on Google’s policy of removal or non-removal of copyright contentious material from its YouTube website.

To Recap, a Little
Cindy Lee Garcia has filed suit in a US federal court, claiming that continued posting of the “Innocence of Muslims” (a.k.a. “Desert Warrior”) video is an infringement of her personal copyright – which she owns, as the author of her acting performance in the film.

Garcia did not (she alleges) sign a release form waiving her rights, prior to filming, nor did she sign a contract designating her participation in the project as a work-for-hire – in which case, her employer (the producers of the movie) would own the copyright.

She has demanded that Google / YouTube take down the video, wherever and whenever it is posted online.

On their part, Google and YouTube have been sheltering under the umbrella of the Digital Millennium Copyright Act (DMCA), and its ‘safe harbor’ clause.

Under this provision, online service providers or OSPs must stick to and qualify for certain prescribed guidelines, and promptly block access to alleged infringing material (or remove such material from their systems) when they receive notification of an infringement claim from a copyright holder, or the copyright holder’s agent.

So, the onus to bring the matter to light rests on the copyright owner.

Got it, so far?

Good.

The Latest
Earlier this week, Garcia’s lawyer Chris Armenta phoned the defense attorney for Nakoula Basseley Nakoula – the jailed producer behind the anti-Islam film -to find out whether Nakoula had accepted a settlement offer. Armenta was told that she was pursuing the wrong person.

Armenta says she followed up by asking who the right person was.

Nakoula’s lawyer allegedly responded by saying, “The one that owns the rights to the film.”

Hmm. Okay…

Question: Who DOES own the rights to the movie?

Answer: Nakoula and his lawyers aren’t saying.

Ah. That could be a bit of a problem.

Indeed.
Armenta’s next move was to e-mail Timothy Alger, a former deputy general counsel at Google, who now represents the company on contract, as a partner at Perkins Coie.

“I have just been informed by Nakoula’s attorney that Nakoula… DOES NOT OWN the rights to the film and will not claim copyright ownership on the rights to the film,” Armenta wrote. “We believe it is YouTube’s burden to identify the correct copyright holder, in light of Garcia’s allegations that she owns the rights to her dramatic performance.”

In line with this argument, YouTube got a takedown notice on “Innocence of Muslims” from Garcia.

What Should Have Happened Next?
On Oct. 3rd, 2012 Google announced an adaptation to YouTube’s appeal-policy by users against certain takedowns of content by copyright holders.

By changing this ContentID program (by which users can appeal against a takedown), YouTube introduced a formal process of appeal against the decision to block a certain video under the ContentID system, thereby increasing the protection for its users against unjustified take down claims.

Under the new procedure, if content is taken offline under a ContentID claim, and the user sends a dispute notice to the copyright holder, the copyright holder will either have to file a DMCA claim if he rejects the dispute, or release the video to go back online if he accepts it.

Copyright holders now have to think twice before taking down content of other users, since they might face legal penalties if they file nonsensical DMCA requests. Additionally it gives users an extra safeguard in case they want to dispute a takedown.

What DID Happen
YouTube uses two ‘notice-and-take-down’ procedures, which are often confused with each other – and which it does not usually bother to explain.

First, the DMCA procedure (under the Digital Millennium Copyright Act) uses an official counter notice process.

If content is taken down, the user receives a notice. If the copyright holder omits to sue (start an injunction) within ten days after the takedown, YouTube will put the content back online.

Second, YouTube uses a so-called ContentID procedure. Copyright holders can upload samples of their work to the YouTube network, after which the YouTube software scans the platform, looking for matching copies of that content.

Once the software finds (allegedly) infringing content, it takes it offline.

Disputes by users against such a takedown will be sent to the copyright holder. If the copyright holder agrees with the takedown, thereby rejecting the user’s dispute, the content would stay offline, leaving no resources for users to go against the ContentID claim.

In Garcia’s case, YouTube gave a “final response” that said a decision had been made that Garcia doesn’t have an enforceable copyright interest and that it wouldn’t remove the video.

Furthermore, Google executive chairman Eric Schmidt made it clear that (in reference to “Innocence of Muslims”), “We believe the answer to bad speech is more speech… It’ll stay up.”

Ouch!
Yep.

Garcia’s attorney is now pointing the finger at YouTube for abandoning typical takedown protocol to (allegedly) profit off a film that has sparked protests and death threats.

And she’s not alone.

In a declaration given by David Hardy, president of DMCA Solutions, Hardy denounces YouTube over the “Innocence of Muslims” video and characterizes YouTube’s responses as purposeful delay tactics and feigning ignorance on copyright law.

Google is (so far) maintaining a dignified silence.

Or working up a legal response?

Who knows?
Not me. At least, not yet.

I’ll be keeping an eye on this one.

Hope you have a good day, whatever you’re doing.

Peace.

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