Google’s DMCA Publicity Stunt

Stephen Carlisle December 3, 2015

On November 19, 2015, Google announced a new program that will offer to underwrite the legal costs of YouTube posters who are the recipients of an “abusive” DMCA takedown request. ¹ The Electronic Frontier Foundation (of course) immediately hailed the move, ² as did several news outlets, including a piece in Fortune magazine that breathlessly called it a “game changer.” ³

A “game changer?” Not even close. This new program really changes nothing since you can count on one hand the people who might benefit from it. The new policy is really nothing more than a publicity stunt, designed to encourage more people to upload to YouTube videos of dubious legality, while at the same time acting as an intimidation tactic to discourage the filing of valid takedown notices. Google takes this action for one reason only: to protect its bottom line.

Google released the following statement:

“YouTube will now protect some of the best examples of fair use on YouTube by agreeing to defend them in court if necessary. We are offering legal support to a handful of videos that we believe represent clear fair uses which have been subject to DMCA takedowns. With approval of the video creators, we’ll keep the videos live on YouTube in the U.S., feature them in the YouTube Copyright Center as strong examples of fair use, and cover the cost of any copyright lawsuits brought against them.” ⁴

So let’s take things apart one by one:

The New Policy Affects Virtually No One

Google is rather coy with its assertion of what a “handful of videos” that will be offered protection. That’s because the real number is four. ⁵ Jonathan Bailey over at Plagiarism Today ran the numbers and found that “[c]urrently YouTube has over 800 million active users every month and only 4 of them are gaining any kind of protection. That’s 0.0000005% of all users.” ⁶

The Myth of the Abusive Takedown as a Serious Problem is Repeated

The popular media continued to repeat the unsubstantiated allegations that somehow “abusive takedowns” are a serious problem. As previously discussed on this blog, this is simply not true. ⁷ Yet here we find this:

“The news, welcomed by many YouTube users, comes after years of complaints from the creator community over what some deem YouTube’s “disastrous” copyright system.” ⁸

And this:

“…[M]ost importantly, YouTube has found a way to help shut off a popular censorship tool. Everyone should celebrate this.” ⁹

Recall that, as reported earlier on this blog, in 2014 Google removed 180 million videos from YouTube, ¹⁰ and received 345 million takedown requests. ¹¹ As of this date, according to Google’s own transparency report, it currently receives 15 million takedown notices in a week and 64 million takedowns in the past month. ¹² The number that Google has singled out as “abusive takedowns” that they are willing to defend under their new policy, again, is four.

A Simple Counter-Notice Re-Instates the Video

Recall that all one needs to do the get the video reinstated is file a counter-notice. Again as Jonathon Bailey over at Plagiarism Today noted:

“For example, on my Garbage Horror review channel, I was hit with a DMCA notice for a video that had no actual content from the TV show we were discussing (audio or video). YouTube is not representing me, though I was able to restore the video with a counter notice.” ¹³ (Parenthesis removed)

The Return of the Two-Faced Baloney Sandwich

I have in the past compared Google’s public pronouncements as a “two-faced baloney sandwich.” Consider that Google Copyright Legal Director Fred Von Lohmann (the author of Google’s press release) had this to say at the recent Congressional Roundtable on copyright held in Los Angeles:

“We are not in a position to decide what is legal and what is illegal online.” ¹⁴

Well, Fred, apparently you are in such a position, because that’s exactly what you’re doing right now. You were able to sift through 180 million videos to come up with the four “abusive takedowns” that you are willing to back with up to a million dollars of legal expenses. ¹⁵ You are, in fact, deciding what is legal and illegal online, because part of your new policy is to ignore a DMCA notice that you don’t like.

More crocodile tears from Mr. Von Lohmann:

“We’re doing this because we recognize that creators can be intimidated by the DMCA’s counter notification process, and the potential for litigation that comes with it.” ¹⁶

As opposed to the intimidation felt by small copyright owners, to whom Google thumbs their noses at and insists they should be prepared to police the entire internet by themselves 24/7. Consider that a recent survey by the Professional Photographers Association revealed that 67% of the respondents had their work used without a license or compensation, often multiple times. ¹⁷

If you need any further proof of Google’s two faced nature, consider this: will they be willing to fund the legal expenses of a content creator that gets an abusive counter-notice? Of course not. As Ellen Seidler at Vox Indie reports:

“I wrote about this specific scenario in a blog post “How DMCA Abuse Hurts Creators” in 2013. In this case the uploader had zero right to upload the film, but because she sent a counter-notice, YouTube put the full copy of the film back online.

This film was reposted (in its entirety) to YouTube after the uploader sent a counter-notice….

What now? The only recourse the user has it [sic] to go to court. Is YouTube willing to cover those court costs? Will YouTube step up to protect rights holders whose work is ripped off on their site? The answer is a simple, NO.” ¹⁸ (Emphasis in original)

Winning through Intimidation

What does Google hope to gain by this publicity stunt? Why, market share of course. As expertly analyzed by this piece in the New York Times:

“The company said it wanted to protect free speech and educate users on fair use. But its announcement is also aimed at strengthening loyalty with video creators. YouTube faces new competition from Facebook, Twitter and traditional media companies that are trying to get consumers to upload more content onto their platforms.” ¹⁹

The story goes on to quote Fred Von Lohmann as stating:

“We believe even the small number of videos we are able to protect will make a positive impact on the entire YouTube ecosystem.” ²⁰

Ah, yes, a “positive effect on the YouTube ecosystem,” in other words, “profits.” As noted before on this blog, since Google acquired YouTube in 2006, it has never earned a profit. ²¹ So how do you improve profits, in the face of increasing competition? By encouraging more people to upload videos to YouTube, and discouraging people from getting them removed.

So, Google protects a microscopic amount of YouTube videos, and says, (wink-wink), “we might do the same for you, (if we feel like it), but make no promises that we actually will.” This has the effect of not only encouraging more uploads, but also encouraging the upload of material that will doubtlessly be of infringing material. One does not have to travel far on the internet to find the public’s understanding of what fair use is, and is not, to be woefully inadequate.

On the flip side, Google is more than willing to use that fear of being wrong to intimidate a copyright holder’s intention to file a DMCA notice. After all, if you are wrong, big bad Google is going to sic their expensive legal staff on you, and you can’t afford that, can you?

So more infringing videos get uploaded to YouTube, because Google wants you to believe that they’ve “got your back.” The infringing videos get to stay up longer, because of Google’s well-orchestrated campaign of intimidation.

And trust me, Google is not going to stick their necks out for anything that is not a clear winner. For in ignoring a facially valid take-down notice means that Google cannot claim safe harbor and it would be sued along with the uploader.

Again, as previously posted on this blog:

“The problem with this is that nowhere in Section 512 does it grant the recipient of a takedown notice the discretion to engage in a fair use analysis. That statute only says that a company like Google ‘upon notification of claimed infringement as described in subsection (c)(3), responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity…’ This is the essence of the ‘safe harbor’ provision. The grant of immunity is predicated on a ‘no questions asked’ system. If you don’t know the material is infringing, the receipt of the notice should obligate you to take the material down, not pick apart the request in a fair use analysis, or acting as judge and jury on whether a request is improper.’” ²²

As Jonathan Bailey at Plagiarism Today observes:

“In short, Google’s new policy protects and [sic] exception of an exception of an exception. It does nothing to address their larger copyright issues, either for its users or for outside rightsholders, and probably will not have a drastic impact on false DMCA takedown notices (unless Google starts ignoring them on a larger scale).” ²³

In other words, it’s a publicity stunt.