Michael Horton

The DMCA is broken. In its current form, the DMCA victimizes average internet users and content creators due to its vague rules and lack of provisions to penalize people and organizations that misuse DMCA takedowns. It is used to stifle criticism, creativity, problem solving aids, information, commentary, and general freedom of expression.

Suppression of Expression

DMCA claims have twice taken down a website I frequent in the past three years. On March 25th, 2013, Warner Brothers shutdown the Spacebattles forums with a DMCA claim on pictures in a thread about the then-upcoming film Pacific Rim. This DMCA claim, which was probably at publicly available promotional photos, was so vague that the administrators had to delete the entire thread to get rid of the DMCA issue (https://forums.spacebattles.com/threads/25th-march-2013-server-outage- dmca.253602/).

Later that year, on December 24th, the site was hit by another DMCA claim. This one was specific and related to a photo of a toucan that used in a meme image (https://forums.spacebattles.com/threads/todays-outage-was-brought-to-you-by-the-letters-d-m-c- and-by-the-number-a.280447/). This was particularly egregious because A) the forum itself likely did not host the image (sites like Imgur and Photobucket fill that role) and B) meme images should be protected by Fair Use laws, since they are transformative content. Here are some examples of meme images:

Meme images are a natural part of internet discourse in the modern era. They allow for quick and easy conveyance of ideas and emotions without the use of audio or video content, which is bandwidth intense and also subject to DMCA takedown abuse. They are also far easier for the average person to create than a wholly original piece of art, which has led to their proliferation and entrenchment in internet culture. There are a multitude of sites that allow people to create memes from templates or upload images they acquire on their own, lowering the barrier to entry.

Suppression of Problem Solving Aids

On December 22nd, 2014, a DMCA takedown was issued for a modding tool for the Dark Souls video game (http://www.neogaf.com/forum/showthread.php?t=957469). Said tool was created to allow players of the PC version of the game change resolution and use commonly available PC settings that were not in the port. This program lacked any code from the game and was apparently targeted because it had Dark Souls in the name. The company responsible for this, FDS File Defense Service, did not do their due diligence when sending out takedown notices for Dark Souls debug mode patches, which could be used for multiplayer cheating.

What this means is that if someone develops a program or uploads a file that solves a problem with a preexisting piece of software, it could be DMCA claimed under the auspices of fighting piracy, even if the program/file only affects the performance of the software in question. This is even more likely when the task of issuing DMCA claims is contracted out to external companies who use algorithms to find offending content, with no human oversight to ensure that the things being DMCA claimed are actually violating copyright.

Suppression of Commentary/Critique/Information/Creativity

This is an area where automated copyright claims and deliberate abuse of the DMCA coexists. Both actions are detrimental to the content creators, who likely cannot monetize their content and/or risk being barred from sites like YouTube, and the consumers of such content, who would benefit or be entertained by that content.

At the low end, DMCA copyright strikes often seem to involve music, which results in large portions or entire videos being muted. For example, when GameTrailers.com, a site that reviews video games, demonstrates them via livestreaming, and provides other commentary and entertainment content, streamed Dragonball Xenoverse, the archive of that stream had its audio muted due to a copyright claim (http://www.neogaf.com/forum/showpost.php?p=155438671&postcount=345). This meant that while the player could see the game, they could not hear the thoughts of the people playing it, which provide a great deal of information about the experience of playing a game, which cannot be discerned by just watching footage.

GameTrailers later had a similar issue with a stream of RockBand 4, a game where playing music is the whole point of the game (http://www.neogaf.com/forum/showpost.php?p=180637388&postcount=4113). The actual livestream had full audio, but anyone watching after the fact on Twitch.tv wound up seeing a video with half the audio muted (http://www.neogaf.com/forum/showpost.php?p=180938588&postcount=4173). This ruined the experience that people were looking to get out of the video: seeing the staff of GameTrailers compete against each other in a simulated battle of the bands. Internet critics are frequently targeted by automated copyright strikes. sfdebris, a critic and commentator on science fiction and fantasy material, had his entire YouTube channel taken down by CBS copyright claiming the footage he used; this was alluded to in two episodes of his show (http://sfdebris.com/videos/startrek/s028.php, http://sfdebris.com/videos/startrek/t127.php). While he regained use of his channel after removing the actual videos and only using it to advertise the presence of new ones on other sites, this meant that it would be harder for him to expand his viewership and less financially secure hosting for his videos. In fact, in late 2014, Blip.tv, where he had hosted his videos after YouTube would no longer host them, shut down, forcing him to take a hiatus until he could find a new site that would host the hundreds of videos.

I myself have been the victim of automated copyright strikes. In 2010-2011, I contemplated making a series of videos critiquing Stargate Universe, a TV series I felt was deficient in several areas. As a prelude to this, I posted a series of videos on YouTube about the history of the Stargate franchise. Several days later, MGM hit the middle episode with a copyright strike and I pulled down the entire series of videos, which led me to abandon YouTube as a video service. Even though the clips I used were short and each video was at most fifteen minutes, MGM considered this either a threat to their copyright or commentary that needed to be suppressed. While I was protected by Fair Use, I had no illusions that I could go through YouTube’s laborious appeals system and come out on top, since I was not a user with enough cachet/resources to be worth listening to. This is made even worse by YouTube’s habit of refusing to honor DMCA counter-notices for content owned by companies like UMG (http://www.neogaf.com/forum/showthread.php?t=536499).

Bogus copyright strikes are also an issue users of all sizes and reputations have to deal with. For example, Siftd.net, a site that provides video game content curation and produces Pachter Factor, a series where financial analyst Michael Pachter provides financial insights into decisions made by video game companies, has run into this issue. While Siftd hosts most of its content on its own site, Pachter Factor is posted on YouTube on a one week delay. On January 27th, 2016, Pachter Factor episode 11 was uploaded on to YouTube and hit by a copyright strike (https://twitter.com/Dinfire/status/692442466805518336). The copyright strike came from Conde Nast, which did not own any video clips in the episode; in fact, they attempted to claim a trailer for the Oculus Rift was theirs (https://twitter.com/Dinfire/status/692440567914053635). Third parties copyright striking content they do not own or are not contracted to deal with is a frequent occurrence on YouTube.

Deliberate copyright strikes have occurred against critics and commentators who point out negative aspects of products or then-current events. For example, games critic John Bain (also known as Total Biscuit) received a copyright strike for a negative impressions video for the game Day One Garry’s Incident on October 18th, 2013. This was only removed after Bain published a video about the situation on October 20th (https://www.youtube.com/watch?v=QfgoDDh4kE0). Bain later made a video criticizing the game Guise of the Wolf, which received a copyright strike. Afterwards, the company that made the game, Fun Creator, threatened to take down his channel before capitulating to growing negative sentiment against them and removing the copyright strike (http://www.escapistmagazine.com/news/view/132262-Guise-of-the-Wolf-Dev-Takes-Down-Negative- YouTube-Review-Update-2).

Games critic Jim Sterling has also been hit with DMCA claims for first impression videos of bad games. In November 2014, he received a copyright strike on his video for the Slaughtering Grounds, a poorly made Steam Greenlight game. The developer also threatened legal action against Sterling and his channel, before the copyright claim was removed (http://www.lazygamer.net/24/game-developer-issues-take- down-notice-against-jim-sterling/). In March 2015, Sterling received another copyright strike for a negative impressions video for Skate Man Intense Rescue, made by Digipex Games. The Vietnamese company admitted it was trying to exploit the DMCA in order to punish Sterling for monetizing his first impressions videos of Steam Greenlight games (http://kotaku.com/indie-developer-retaliates-to- negative-video-with-youtu-1692469143, https://youtu.be/0dHGVF2syAQ).

On April 27th, 2015, games commentator Super Bunnyhop posted a video looking into claims of internal strife in video game publisher Konami (http://www.neogaf.com/forum/showthread.php?t=1036765). On May 11, Konami took down the video with a copyright strike, despite Super Bunnyhop following Fair Use rules and making clear that large portions of the commentary was based on speculation and unproven hearsay (http://www.gamezone.com/news/konami-issues-takedown-notice-to-super- bunnyhop-over-investigative-video-3416364). While the matter was quickly resolved in a matter of days, it lasted long enough to generate a massive amount of negative attention that likely contributed to the quick revocation of the takedown notice.

Video game related companies are not the only ones that abuse the DMCA to silence critique. On February 5th, anti-piracy organization Remove Your Media LLC, working on behalf of anime publishers/distributors FUNimation Entertainment and Sentai FIlmworks, began sending out mass DMCA takedowns, as documented in this Twitter conversation thread: https://twitter.com/weeaboo/status/695778142972198913. Several users were hit with copyright strikes for long strings of critical Tweets with screencaps of poorly done official translations (https://twitter.com/herkzzz/status/696005698929340421). Remove Your Media LLC also uses an imprecise algorithm that hits Tweets that do not have any pirated content, making it dangerous to even post screencaps or promotional images from legal sources (https://twitter.com/BigOnAnime/status/696157404765892609).

The DMCA is in Need of Reform

The DMCA in its current form is being rampantly abused for three main reasons: the bar for labeling something as infringement is too low, automated systems are not being given the proper human oversight required, and there are no negative consequences for false copyright claims. In an era where sharing publicly released content is more prevalent than ever, the DMCA is ill equipped to handle the realities of internet behavior and is an active threat to creativity and expression of all forms. If the DMCA is to continue, it should be modified in these four ways: 1. There should explicit rules against muting audio that is part of a work that demonstrates, critiques, or comments on a performance or interactive media. 2. Stronger protections for critique and commentary should be enacted. 3. Before an automated system can send a copyright takedown notice, a human must look at the flagged content and explain why it violates Fair Use. 4. Escalating fines for false copyright claims should be used to deter the use of content matching algorithms without human oversight and false copyright claims for the purpose of censorship, as well as third parties claiming content that does not belong them or their clients.

These four improvements to the DMCA would do much to protect the public from copyright holders, who are behaving more and more like patent trolls than companies cultivating their intellectual property to produce content worth buying. The only tradeoffs involve increasing costs and manpower requirements for large, multinational corporations that should easily be able to absorb such costs and YouTube needing to sort out a way to better protect commentary and critique, which it should be doing anyway, given the fact that the category is a massive source of false copyright claims. YouTube’s near monopoly on user created video content means it also has an obligation to protect its users, since it is the primary video destination for a large portion of the global population.