Now that the dust has settled on the anti-Scientology video takedown controversy, it's time to take stock. For those of you who missed this one: on September 4th and 5th, hundreds and possibly thousands of videos critical of the Church of Scientology were taken down as a result of DMCA notices reportedly sent by by American Rights Counsel, Dr. Oliver Schaper, the Schaper Company, Media House Enterprises, and ContentFactory America. It rapidly became clear that these entities did not hold the copyrights to the materials they claimed to be infringed, including footage from a Clearwater City Commission meeting and a man-on-the-street interview. In addition, many of these videos were obvious fair uses, such as independent news reports.
Here’s the good news: YouTube quickly realized something was fishy, and began investigating. Within days, YouTube suspended the accounts that had sent out the allegedly fraudulent DMCA takedown notices, reinstated the accounts that had been suspended for multiple allegations of copyright infringement, and put most of the videos back up on YouTube, all without waiting to receive DMCA counter-notices from YouTube users who had had their videos taken down.
Well done, YouTube. The company identified a problem and worked to resolve it and protect users, rather than waiting passively for the takedown targets to send counter-notices. As we noted last month, online service providers play a crucial role in preserving and promoting online political speech, and YouTube seems to have taken that role seriously here.
Now, the bad news: if YouTube had not been proactive in dealing with what appeared to be fraud, the Anti-Scientology videos might still be down today. Very few YouTube users filed DMCA counter-notices in response to the takedowns, apparently out of concern for their privacy. The DMCA-compliant counter-notices must normally include the full name, address, and telephone number of the alleged copyright infringer. YouTube passes this information along to the party making the copyright infringement claim. Scientology critics, reportedly concerned about Scientology’s alleged Fair Game policy, were reluctant to surrender their anonymity.
And here's more bad news: not only would takedown targets have to give up their own private information to get their videos restored, they had no guarantee that they would in turn be given the names and addresses of the people who sent the DMCA notices. The DMCA does not require Online Service Providers, such as YouTube, to pass on the identifying information in the DMCA takedown notice to the alleged infringer. Without that legal requirement, YouTube, as well as other OSPs, are reluctant to reveal this information for fear of violating the sender's privacy. That lack of quid pro quo is not just unfair, it makes it very difficult for takedown targets to determine whether the notices are from legitimate owners, and to pursue legal action when notices are sent improperly.
But now back to the good news: YouTube and other OSPs can take steps to remedy this imbalance. They should require individuals who send takedown notices to agree, in advance, to disclosure of their identifying information. If circumstances caution against disclosure (e.g., if the takedown target has been harassing or stalking the copyright holder in some way), copyright holders can use an agent to send the takedown, giving the alleged infringer a point of contact while protecting the individual's personal privacy. Whether the DMCA is being used as a tool of censorship or to press a legitimate copyright claim, transparency and openness is critical, and the copyright holder should have the courage to stand up and be counted.
We understand YouTube is aware of the problem and is considering ways to correct it. We hope that happens soon, before the next wave of abusive takedowns hits.