DMCA Double Jeopardy
Posted on behalf of our friend AJ Mazur:
During December of last year, the YouTomb people helped me with a DMCA issue. I uploaded a remix video involving a Lazy Town song mixed with a Lil Jon song and it was taken down by a DMCA claim by LazyTown Entertainment. A counter notice claiming fair use was filed with YouTube and no legal action was taken against me so the video was eventually restored.
This week LazyTown Entertainment decided to file a second DMCA claim on the same video. YouTube takes it down again and this now being my third strike, terminates my account. It is in YouTube’s best interest to comply with every takedown request in order to obtain safe harbor in accordance with the DMCA, but this specific takedown raises policy issues and may expose a potential loophole in the DMCA. The discussion at hand is if this second DMCA claim is actually legal or not. We can’t find any specific cases where a situation like this has happened before but regardless of the legality, there is a need to revise policies within YouTube or the DMCA.
If there is some sort of “double jeopardy” type provision that prevents a second filing then we have an issue with how YouTube handles takedowns. Many takedowns are processed automatically and clearly this duplicate request was not noticed by YouTube’s system. This gives the wrong impression to users who may have prevailed in the face of DMCA claims, almost as if YouTube is apathetic to what you have done in the past. This also leans towards a revision of the “three strikes rule” and how all takedowns are counted against you, even if one has already been proven in your favor. The question also remains if there is a need to penalize the copyright holder and possibly YouTube in this instance.
If multiple filings are in fact legal then this is an aspect of the DMCA that needs revision. Theoretically, this practice of duplicate filings can be used to permanently take down content without ever having a dispute filed in court. All a copyright holder needs to do is immediately file another takedown as soon as the offending content is restored, and in the meantime there is no threat to the copyright holder to lose in court because it will never get that far since they are responsible for the filing. Even if it were to go to court a copyright holder can just use multiple legal teams to file takedowns at different points in time, each acting without knowledge of the other teams existing. Organizations known for silencing critics or even your standard internet troll could file an infinite number of bogus takedowns and may dodge ever going to court.
There is one known identical copy of the video on YouTube that was uploaded prior to this week and is still live (http://www.youtube.com/watch?v=IJ0AhVyKCLY). We presume this copy has not been taken down because the account it was uploaded with is registered as a Canadian account. Takedown requests in Canada are handled differently in comparison to the rest of the world. If a takedown has been filed with this copy then the actual process may be delayed slightly. To summarize these are the questions at hand:
Is it legal for a content owner to file a subsequent DMCA claim against content that has been restored from a previous DMCA claim, filed by the same claimant, that was successfully contested? If it is not legal, who is at fault and how should they be penalized?