Youtube, DMCA, and SST Records - Oh my!

Earlier this week Huffington Post posted an article titled YouTube Copyright Takedown Targets Punk Bands by pop culture writer Lisa Derrick. The piece focuses on SST Records using the Digital Millennium Copyright Act to remove videos from the site.

To help us dissect the situation, we once again turn to Punknews staff writer (and intellectual property attorney by day) John Gentile for his take on this case; click Read More to check it out.

Recently, the Huffington Post ran an article by pop culture columnist Lisa Derrick in which Derrick used SST records as an example as to why the current "take down" provisions of the Digital Millennia Copyright Act are inefficient and prone to abuse by internet content providers. While I can understand that Derrick is frustrated that some of her favorite videos were taken off youtube, unfortunately, her article is inaccurate in some areas regarding the substance of the DMCA and is likely inaccurate regarding her SST example.

I encourage the punknews readership to read Derrick’s article here. Generally, the article uses an example of "Greg Ginn" and "SST Records, Inc." using the take down provisions of the DMCA to demand removal of videos from Youtube despite the fact that "Greg Ginn" might not have any claim to the work to which he is claiming infringes the rights of his works. Further, Derrick states that Youtube and similar services should use their own judgment when receiving take down demands instead of just removing the video automatically. She closes the article with clips from a conversation she had with "Greg Ginn" over facebook where "Greg Ginn" seems to defend his take downs but cannot explain why he is taking down videos by artists that were not on SST records.

Unfortunately, Derrick makes a few mistakes. The execution and purpose of the DMCA is misstated. Additonally, it is unlikely that Derrick was actually communicating with the real Gregg Ginn, and was instead , likely communicating with a well known impostor that has nothing to do with either the real Ginn or SST records.

First, Derrick is imprecise in her language, which makes her article more confusing then it needs to be, especially considering the DMCA, which continues to confound scholars in the highest realms of legal academia. Derrick seems to use the terms DMCA and "Take down" interchangeably. Although this mistake is common, it makes articles regarding this topic more difficult to understand.

The DMCA is a massive piece of legislation, composed of five titles. The DMCA was created to ease the copyright act of 1978 into the age of rapid internet connection. The DMCA covers many different topics, ranging from rights given to public libraries, to licenses granted to radio broadcasts to rules regarding protection of boat hull design. The take down rules are a small, but important, section of title II. When Derrick refers to "DMCA Takedowns" she is likely referring to title 17 USC 512(c), a set of rules that very explicitly describes in detail how take downs work in a very particular area of law. To refer to the take down provisions broadly as the DMCA would be akin to referring to "Saskatchewan" as "Canada."

Second, It is important to explain how a 512 takedown works, before proceeding onwards with a discussion. Derrick’s article omits this step, which in my opinion, leads to a conclusion that is not supported by the legislative history of the DMCA.

Parties governed by 512 takedowns are "Online Content Providers." A subsection of OCPs are "Internet Service Providers." The DMCA is somewhat ambiguous when defining these terms, so it is difficult to accurately characterize an ISP. But, roughly speaking, it suffices to say websites such as Youtube, Facebook, and OKCupid, where users put up their own content without any interference or checking from the website operators, are ISPs.

Therefore, when a party that owns the rights to a work feels that his or her rights have been infringed, the party sends a formal notice, that has a required format as described by 512, to the ISP. So long as the notice adheres to the correct format, the ISP MUST take down the work that is allegedly infringing to avoid liability itself. If the party that posted the content believes that it is not infringing, the party that posted the work may send a counter notice to the ISP. If the party that claimed the work was infringing does not file suit within a fairly short period of time, the ISP MUST put the content back up. If the party that claimed the work was infringing does file a lawsuit, then that party and the party that claims no infringement come to a resolution in court, and the ISP is effectively removed from the conflict.

But, Derrick suggests that Youtube and other ISP’s should judge whether the original takedown notice is credible. This is in direct contrast to the 512 safe harbor provisions. The purpose of not giving ISP’s any judgmental power with regard to takedown is so that they 1) Do not need to waste their own resources in determining the complex issue of copyright ownership and 2) so they can avoid liability themselves. If an ISP did start to make judgement calls, and it made a wrong one, it too would be liable for copyright infringement. The purpose of the 512 safe harbor is to protect ISPs so we can have things like youtube. If ISPs were liable due to bad judgment calls, then no company would risk itself for Youtube-like features, and furthermore, it is possible that chat rooms and message boards, could render a site liable for user generated content. 512 does not protect copyright holders as Derrick seems to suggest. Copyright holders have a multitude of remedies already available. If their work is wrongly taken down, the party wrongly demanding takedown may be liable, not the ISP. Derrick suggests that youtube and similar services should prosecute those sending in wrongful take down notices, but ISP's may not enforce the rights of third party copyright holders. The issue of copyright defense is conducted by the holder of the copyright, not the ISP.

Third, Derrick seems to confuse the concept of record labels with copyright ownership. Derrick condemns "SST records, inc." for sending takedown demands for bands that were never on SST records.

A band does not need to be on a label for a company to own the rights to the recording. Copyright ownership and a band being signed to a label are not the same thing. Although the two often are interrelated due to the deals bands cut when signing with a label, the deals usually do not last for the span of the term of the copyright and are often transferred from company to company. For example, if punknews editors Adam White and Justin August pooled their resources and purchased the rights to the Ace of Base discography, they could legitimately enforce the rights of "I saw the sign" against infringers even though Ace of Base was never on punknews records. In addition, if punknews editors Richard Verducci and Bryne Yancey signed Kriss Kross to their label, SexxxJamz Records, the mere fact that Rich and Bryne cut some sort of a deal with Kris Kross does not necessarily mean that Rich and Bryne therefore have the authority to enforce the rights of the work of Kris Kross.

Derrick questions "SST Inc." for enforcing the rights related to the band X, but it is quite possible that "SST Inc." legitimately has a claim to those rights. In the mid 80’s, during SST’s boom, Ginn did purchase many rights of works not on SST, including early Husker Du recordings. For another example, remember that for many years, when Michael Jackson owned a portion of the Beatle’s catalogue, Jackson legitimately enforced Beatles infringement even though the Beatles were never on Jackson’s label.

Instead of just guessing that X’s rights were not held by "SST Records, Inc.," perhaps Derrick could have performed a public copyright search online, which is free, and determined who the true holder was (assuming that the rights have been filed with the U.S. Copyright Office, which is not a requirement.) In less than 90 seconds, one can determine that the rights to "Your phone’s off the hook" is held by Slash records.

Fourth, Derrick may have fallen in the trap of an imposter. Derrick states that she talked to "Greg Ginn" on facebook. Many of those that are friends with "Greg Ginn" on facebook seem to be of the opinion that the "Greg Ginn" on facebook is an impostor, as his wall frequently hosts these accusations. I encourage punknews users to peruse the "Greg Ginn" wall: You may notice that a certain individual seems to post on the wall frequently, (we’ll call him User X) and that "Greg Ginn" seems to compliment User X and agree with him quite a bit. Furthermore, about three months ago, I tried to set up an interview with "Greg Ginn" believing that he was the real Greg Ginn. It seems that User X handles setting up "Greg Ginn"’s interviews, and they both always seem to be on facebook at the same time, with just about a two minute lag between replying to each other, and "Greg Ginn" often seems to be evasive about questions to which he ought to know the answers, and when I asked "Greg Ginn" if he really was THE Greg Ginn his response was "I am who I want to be"… hmmmm… (and Creepy!)

"Greg Ginn" could be the real Greg Ginn, but I doubt it. I mean, do you really think that the eccentric genius of Black Flag, who has given less than 10 interviews in the past 20 years, would be on facebook throughout the day, every day, like a ninth grader, chatting away with User X about how awesome User X is?

Derrick’s piece seems to be well intentioned, but it seems to add confusion an already confusing realm, and copyright law is rough terrain already. In the current crisis, there are no easy answers to the problems plaguing intellectual property law and the media business. Solutions require hard work, research, critical thinking. Before jumping to conclusions, I encourage the punknews readership to take time to understand these issues and perhaps come up to a solution to the current copyright crisis.

John Gentile is an intellectual property attorney by day and punk rocker by night. In his spare time, he likes to decide who is and who isn't a poseur.