The Drax Files Radio Hour: DMCA explored

radio-hourThe December 19th Drax Files Radio Hour podcast tackles something of a difficult (and emotive) subject: the Digital Millennium Copyright Act (DMCA), and its potential for good and bay in environments such as Second Life.

The DMCA, which is somewhat matched by the European Union’s Directive 2001/29/EC, is intended to protect the rights of copyright holders and to prevent copyright infringement, whilst simultaneously providing ISPs and other intermediaries with exemption from direct and indirect liability in situations where infringement is alleged to have taken place (what is referred to as their “safe harbour” status).

While it is a shame there was no qualified legal voice on the show, it does feature two extremely competent and level-headed commentators in the form of Tracy Redangel, co-owner of {NanTra} Poses, and Kitty O’toole of Kittywitch fame. Drax also chats with former IMVU content creator Fatima Mekkaoui (Imokon Neox in SL), and she also profiles excellent insight into matters and a balanced view of things.

The show was prompted by the  recent Belleza DMCA situation, which although now resolved, has been the latest in an increasing new of cases where the DMCA process appears to be employed as a means of harassment or in anti-competitive behaviour.

How the DMCA process works on the web (click for full size) – an infographic provided by web hosting company Nexcess

This is because of the manner in which the DMCA operates. In essence: if party A believes (emphasis intentional) that party B is using material that infringes upon their copyright, they issue a DMCA notification to party B’s service provider.

The service provider must then act “expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity”, and then notify party B that the content has been removed to comply with a DMCA notification.

Party B can challenge the claim by filing a counter-notification, which is passed to party A (at which point the original notification is passed to party B).

Party A then has 10-14 business days in which to indicate they have filed a claim with the court. If no indication is forthcoming, then the content must be restored by the service provider within 14 business days of the counter-notification being received.

The bias here is clear: a claimant only needs to indicate they are acting in a good faith belief that their copyright is being infringed to warrant content removal. No actual proof is required.

Thus, the door is open to potential misuse of the process. Google, for example, has indicated that around 37% of DMCA notifications it receives “are not valid copyright claims” (as opposed to incorrectly filed claims, which account for just under 10% of all notices filed in the USA). The Electronic Frontier Foundation’s Hall of Shame further demonstrates how the process is frequently used for questionable reasons by corporations and businesses.

In terms of misuse of the process, the Belleza situation is particularly interesting / worrying, as it appears to be rooted in harassment. Not only did the DMCA notification come at a time when the brand was facing significant issues in-world, up to and including the crashing of their store region, it now appears that the DMCA itself had been filed entirely fraudulently, using the details of someone not even involved in using Second Life. In other words, it was a deliberately fraudulent document aimed at disrupting Belleza’s business.

As well as looking at the Belleza situation as an illustration of how the DMCA process can be abused, the show touches upon some of the other complexities it presents to content creators dealing with claims filed against there work. These include concerns over linking virtual and physical identities when filing a counter-notification which is then forwarded to an (at that point) unknown third-party (the claimant), through to concerns over being able to afford legal representation.

Whether such concerns are valid or not is moot. The fact that there exist is often enough to prevent a content creator from responding to a DMCA notification, even if they are confident the claim is incorrect. Privacy and the releasing of personal information was, among other things, of sufficient enough concern to influence Baby Ghosn’s decision not to respond to the claim made against her Wowmeh brand.

Copyright an IP infringement takes many forms in Second Life, upon and including the ripping of entire regions, as Vintage Village owner Oriolus Oliva unpleasantly found out in 2011. -See the report on Prim Perfect'a blog, and see the exhibition
Copyright an IP infringement takes many forms in Second Life, and the podcast also touches on the illegal copying of Vintage Village in 2011, as reported by Prim Perfect at the time. An exhibition about the copy is on display in the Cellar Gallery at Vintage Village.

Which is not to say the entire DMCA process is a complete failure. When used properly, it is an extremely effective tool, as Fatima demonstrates in reference to her own case. The problem here is that in a world of micro-transactions, and open creative environment, the DMCA process can become something of a sledgehammer in a game of whack-a-mole when dealing with genuine cases of infringement or with false claims being made against you. Thus, it can become such a debilitating experience, it can drive a content creator to cease their endeavours, again as Fatima illustrates in her decision to quit IMVU.

Nor can the Lab ignore the DMCA and the process it defines; not without risking exposing themselves to legal action, as Fatima explains very concisely [21:43]:

Linden Lab, IMVU Inc, they fall under “safe harbour”. They are a third-party, they are not allowed to get involved with any bias whatsoever, regardless of who the party is and who’s right and who’s wrong, because they are a third-party. They don’t want to get sued. To be protected from being sued, they can’t get involved.

In other words, the Lab can only act as mandated by the DMCA. To do otherwise, such as being perceived as “getting involved” in a dispute, or providing alternative means of handling matters of copyright, could end up landing them in legal hot water.

This latter point is particularly important when you consider the volume of unlicensed material available in Second Life which has the copyright of large corporations bound up in it. Were the Lab to offer an “alternative” means of dealing with copyright issues, they might be considered to be sitting outside the “safe harbour” provisions offered by the DMCA, and thus subjected to direct claims of liability for the content they host.

One possible way in which things might be improved could lie in the Lab more clearly expressing a willingness to join with content creators in taking action against DMCA notifications that have intentionally been falsely filed. There is actually a provision for this within Title 17 of the United States Code (of which the DMCA forms a chapter). Section 512(f) of Title 17 allows for the copyright holder and  / or the service provider to bring lawsuits against anyone “who knowingly materially misrepresents under this section — (1) that material or activity is infringing.”

In fairness, the Lab do give a warning about this provision within their DMCA policy, although it is fairly low-key:

Please note: The DMCA provides that you may be liable for damages (including costs and attorneys fees) if you falsely claim that an in-world item is infringing your copyrights. We recommend contacting an attorney if you are unsure whether an in-world object is protected by copyright laws.

In November 2013, Automattic opted to give more prominent notice they were willing to do this in order to help users of their WordPress platform deal with issues of the DMCA being used as a means of censorship.

However, this may be easier said than done. For one thing, pursuing someone willing to submit entirely false information on a DMCA notification, as appears to be the case with the Belleza situation, may not be the easiest task in the world, and could require deep pockets. Which is not to say an attempt shouldn’t be made, simply because an active pursuit of the party concerned could well prevent others using the same skulduggery.

The problem here is, how do you separate a deliberate attempt to misrepresent copyright infringement and an attempt made in good faith? Not all situations might be as clear-cut as seems to be the case with Belleza. One approach which may help could be for all content creators be to follow Fatima’s advice and ensure they properly copyright their work; although this also isn’t a cast-iron guarantee – a good faith claim might still be made.

The “good faith” element of the DMCA process is also why care needs to be taken around the idea, as expressed in the show, that the Lab should ban the account of someone who files a DMCA notification and subsequently loses any court case they bring.

Losing a court case is not automatically indicative that the original claim was deliberately misrepresentative or falsely made. It simply means that while acting in good faith, the claimant was mistaken in their belief of infringement, or was unable to substantively prove to the court their work had been infringed upon. So, unless there is clear-cut evidence presented in court that a claim has been knowingly materially misrepresented, it is probably fair to say that the Lab has to carefully consider any subsequent punitive action they may wish to take in order to avoid possible litigation.

In some ways, it is a shame that a legal voice wasn’t available for the show, as it would have been interesting to get more insight on matters from someone within the necessary legal expertise on matters. As it is, the show does make interesting listening, and the commentary from Fatima, Tracy and Kitty is balanced and informative.

In terms of the DMCA, all that can be really said is that it is what it is, and being a Federal law, it is the mandate the Lab must adhere to when dealing with matters of copyright infringement, as noted above. However much we would like to see them “do more” on either side of the fence (i.e. helping content creators deal with genuine issues of their copyright being infringed or helping them deal with situation where the process is being abused), we have to keep in mind the DMCA does constrain them in what they can or cannot do.

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