Update: On January 10, YouTube informed Jonathan McIntosh that his video had been reinstated. The copyright "strike" appears to be removed from his account. YouTube did not wait for the DMCA's 10 to 14 day waiting period to expire, choosing to stand up for its user and putting a stake in this disappointing abuse of the takedown process.
For the past three months, video remix artist Jonathan McIntosh — a self-described "pop culture hacker" whose mashups have been viewed well over 6 million times — has been forced to take time out of making new works in order to address a much less exciting problem: bogus DMCA takedown notices. False accusations of infringement have taken one of his most widely cited videos off of YouTube, rendering it inaccessible through the most popular medium available. (An HTML5 popup version remains available on McIntosh's site).
The video, a commentary on representations of gender roles in popular media titled "Buffy vs Edward: Twilight Remixed," has quite an impressive set of fair use credentials. For one thing, a whole host of major publications favorably reviewed the short film — ranging from the LA Times to the Boston Globe to Slate to Vanity Fair. It has racked up over 3 million views around the Web. But even more to the point, last summer McIntosh joined EFF to screen his film at the 2012 DMCA exemption hearings as an example of a transformative noncommercial video work. His remix was mentioned by name in the official recommendations by the US Copyright Office as worthy of protection.
There are many clear cases of fair use, but this one is about as unambiguous as they get.
That fact hasn't stopped Lionsgate Pictures (the studio with the rights to Twilight), through its enforcement agent MovieClips, from lobbing accusations of infringement and attempting to exploit his work. McIntosh has written up the whole episode on his blog, and it's well worth reading the whole thing. Here's the short version.
What a Broken Copyright System Looks Like
Last October, Lionsgate sent a message through YouTube's algorithmic content detection system — Content ID — that the video "matched third party content." It began running ads over his video, which automatically prohibited the clip from playing on iOS devices. McIntosh filed a dispute, but only the accuser reviews these claims, and Lionsgate chose to reject it. McIntosh then filed a formal appeal with the assistance of attorney Art Neill and New Media Rights, including a 1000-word fair use analysis of the film. A month later, his appeal was accepted and the video was reinstated.
The same day, though, Lionsgate issued a second claim, and once again McIntosh went through the dispute-rejection-appeal process. After another month of waiting, YouTube unceremoniously sent a notification that it had removed the video for infringement and had sent his account into a probationary mode.
It's now been three weeks. The video, which normally gets over 30,000 views a month, remains offline. As McIntosh puts it, "This is what a broken copyright enforcement system looks like."
That's an Awfully Nice Video. It'd Be a Shame if Something Happened to it...
Indeed, it's not news that the DMCA process is subject to abuse. And as McIntosh's case shows, the incentives provided by the law enable that abuse. One section of the DMCA, section 512(f), is supposed to discourage abuse by holding false accusers liable. But as examples like this one demonstrate, the threat of section 512(f) is not enough.
In fact, the senders of this notice were quite brazen about the shakedown operation they were executing. When McIntosh contacted the rightsholders, he got this message in response:
Had our requestes to monetize this video not been disputed, we would have placed an ad on the cotent [sic] and allowed it to remain online. Unfortunately after appeal, we are left with no other option than to remove the content.
No consideration of fair use, no conception that the remixer may be in the right. Simply: allow us to generate revenue off your video, or we will shut it down.
The Real Victim: Fair Use
Fair use is commonly called the safety valve of copyright law. In an era where the content industry pushes for ever more aggressive laws in the Congress and the courts, that safety valve is more important than ever. Lionsgate has shown how easy it is to abuse the DMCA takedown system and to misuse YouTube's Content ID system to undermine fair use. That works to the detriment of remix filmmakers and the public.
McIntosh and his lawyer have filed a counter-notice, and hopefully the video will be restored. Even so, Lionsgate was able to pull down the video for this long within the scope of the Content ID system, and the DMCA allows for at least 10-14 days of more censorship "free," during the counter-notice period.
Even more distressing is the thought of how many artists aren't able to navigate similar situations. For every example of a fair use activist like Jonathan McIntosh, there may be countless others who don't have the expertise or willingness to fight these battles.
EFF is working on fixing the DMCA. Most prominently, in Lenz v. Universal EFF is asking federal court to protect the fair use and free speech rights of a mother who posted a short video of her toddler son dancing to a Prince song on YouTube. Judge Fogel heard summary judgment in October, and we are awaiting a ruling on the interpretation of the DMCA and section 512(f).