{"id":2844,"date":"2016-02-03T15:44:59","date_gmt":"2016-02-03T19:44:59","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=2844"},"modified":"2026-02-03T21:13:21","modified_gmt":"2026-02-03T21:13:21","slug":"attacking-the-notice-and-staydown-straw-man","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2016\/02\/03\/attacking-the-notice-and-staydown-straw-man\/","title":{"rendered":"[Archived Post] Attacking the Notice-and-Staydown Straw Man"},"content":{"rendered":"

Ever since the U.S. Copyright Office announced its study of the DMCA<\/a> last December, the notice-and-staydown issue has become a particularly hot topic. Critics of notice-and-staydown have turned up the volume, repeating the same vague assertions about freedom, censorship, innovation, and creativity that routinely pop up whenever someone proposes practical solutions to curb online infringement. Worse still, many critics don\u2019t even take the time to look at what proponents of notice-and-staydown are suggesting, choosing instead to knock down an extremist straw man that doesn\u2019t reflect anyone\u2019s view of how the internet should function. A closer look at what proponents of notice-and-staydown are actually proposing reveals that the two sides aren\u2019t nearly as far apart as critics would have us believe. This is particularly true when it comes to the issue of how well notice-and-staydown would accommodate fair use.<\/p>\n

For example, Joshua Lamel\u2019s recent piece<\/a> at The Huffington Post<\/em> claims that \u201cinnovation and creativity are still under attack\u201d by the \u201centertainment industry\u2019s intense and well-financed lobbying campaign\u201d pushing for notice-and-staydown. Lamel argues that the \u201ccontent filtering proposed by advocates of a \u2018notice and staydown\u2019 system . . . would severely limit new and emerging forms of creativity.\u201d And his parade of horribles is rather dramatic: \u201cParents can forget posting videos of their kids dancing to music and candidates would not be able to post campaign speeches because of the music that plays in the background. Remix culture and fan fiction would likely disappear from our creative discourse.\u201d Scary stuff, if true. But Lamel fails to cite a single source showing that artists, creators, and other proponents of notice-and-staydown are asking for anything close to this.<\/p>\n

Similarly, Elliot Harmon of the Electronic Frontier Foundation (EFF) argues<\/a> that \u201ca few powerful lobbyists\u201d are pushing for notice-and-staydown such that \u201conce a takedown notice goes uncontested, the platform should have to filter and block any future uploads of the same allegedly infringing content<\/em>.\u201d Harmon also assumes the worst: \u201cUnder the filter-everything approach, legitimate uses of works wouldn\u2019t get the reasonable consideration they deserve,\u201d and \u201ccomputers would still not be able to consider a work\u2019s fair use status.\u201d Like Lamel, Harmon claims that \u201ccertain powerful content owners seek to brush aside the importance of fair use,\u201d but he doesn\u2019t actually mention what these supposed evildoers have to say about notice-and-staydown.<\/p>\n

Harmon\u2019s suggestion that the reliance on uncontested takedown notices gives inadequate consideration to fair use is particularly strange as it directly contradicts the position taken by the EFF. Back in October of 2007, copyright owners (including CBS and Fox) and service providers (including Myspace and Veoh) promulgated a list of Principles for User Generated Content Services<\/em><\/a>. These Principles<\/em> recommend that service providers should use fingerprinting technology to enact notice-and-staydown, with the general caveat that fair use should be accommodated. Two weeks later, the EFF published its own list of Fair Use Principles for User Generated Video Content<\/em><\/a> suggesting in detail how notice-and-staydown should respect fair use.<\/p>\n

The EFF\u2019s Fair Use Principles<\/em> include the following:<\/p>\n

The use of \u201cfiltering\u201d technology should not be used to automatically remove, prevent the uploading of, or block access to content unless the filtering mechanism is able to verify that the content has previously been removed pursuant to an undisputed DMCA takedown notice or that there are \u201cthree strikes\u201d against it:<\/p>\n

1. the video track matches the video track of a copyrighted work submitted by a content owner;
\n2. the audio track matches the audio track of that same copyrighted work; and
\n3. nearly the entirety (e.g., 90% or more) of the challenged content is comprised of a single copyrighted work (i.e., a \u201cratio test\u201d).<\/p>\n

If filtering technologies are not reliably able to establish these \u201cthree strikes,\u201d further human review by the content owner should be required before content is taken down or blocked.<\/p><\/blockquote>\n

Though not explicitly endorsing notice-and-staydown, the EFF thinks it’s entirely consistent with fair use so long as (1) the content at issue has already been subject to one uncontested takedown notice, or<\/u> (2) the content at issue is at least a 90% match to a copyrighted work. And the funny thing is that supporters of notice-and-staydown today are actually advocating for what the EFF recognized to be reasonable over eight years ago.<\/p>\n

While Harmon never explicitly identifies the \u201cpowerful lobbyists\u201d he accuses of wanting to trample on fair use, he does link to the Copyright Office\u2019s recently-announced study of the DMCA<\/a> and suggest that they can be found there. Reading through that announcement, I can only find three citations (in footnote 36) to people advocating for notice-and-staydown: (1) Professor Sean O\u2019Connor of the University of Washington School of Law (and Senior Scholar at CPIP), (2) Paul Doda, Global Litigation Counsel at Elsevier, and (3) Maria Schneider, composer\/conductor\/producer. These three cites all point to testimonies given at the Section 512 of Title 17<\/em><\/a> hearing before the House Judiciary Committee in March of 2014, and they show that Harmon is attacking a straw man. In fact, all three of these advocates for notice-and-staydown seek a system that is entirely consistent with the EFF\u2019s own Fair Use Principles<\/em>.<\/p>\n

Sean O\u2019Connor seeks notice-and-staydown only for \u201creposted works,\u201d that is, \u201cones that have already been taken down on notice\u201d and that are \u201csimply the original work reposted repeatedly by unauthorized persons.\u201d His proposal only applies to works that \u201cdo not even purport to be transformative or non-infringing,\u201d and he specifically excludes \u201cmash-ups, remixes, covers, etc.\u201d This not only comports with the EFF\u2019s recommendations, it goes beyond them. Where the EFF would require either<\/u> a previously uncontested notice or at least a 90% match, O\u2019Connor thinks there should be both<\/u> an uncontested notice and a 100% match<\/em>.<\/p>\n

The same is true for Paul Doda of Elsevier, who testifies that fingerprinting technology is \u201can appropriate and effective method to ensure that only copies that are complete or a substantially complete copy of a copyrighted work are prevented or removed by sites.\u201d Doda explicitly notes that filtering is not suitable for \u201cworks that might require more detailed infringement analysis or \u2018Fair Use\u2019 analysis,\u201d and he praises YouTube\u2019s Content ID system \u201cthat can readily distinguish between complete copies of works and partial copies or clips.\u201d Doda\u2019s vision of notice-and-staydown is also more protective<\/em> of fair use than the EFF\u2019s Fair Use Principles<\/em>. While the EFF suggests that a previously uncontested notice is sufficient, Doda instead only suggests that there be a substantial match.<\/p>\n

Unlike O\u2019Connor and Doda, Maria Schneider is not a lawyer. She\u2019s instead a working musician, and her testimony reflects her own frustrations with the whack-a-mole problem under the DMCA\u2019s current notice-and-takedown regime. As a solution, Schneider proposes that creators \u201cshould be able to prevent unauthorized uploading before<\/em> infringement occurs,\u201d and she points to YouTube\u2019s Content ID as evidence that \u201cit\u2019s technically possible for companies to block unauthorized works.\u201d While she doesn\u2019t explicitly propose that there be a substantial match before content is filtered, Schneider gives the example of her \u201cmost recent album\u201d being available \u201con numerous file sharing websites.\u201d In other words, she\u2019s concerned about verbatim copies of her works that aren\u2019t possibly fair use, and nothing Schneider recommends contradicts the EFF\u2019s own suggestions for accommodating fair use.<\/p>\n

Lamel and Harmon paint a picture of powerful industry lobbyist boogeymen seeking an onerous system of notice-and-staydown that fails to adequately account for fair use, but neither produces any evidence to support their claims. Responses to the Copyright Office\u2019s DMCA study are due on March 21st, and it will be interesting to see whether any of these supposed boogeymen really show up. There\u2019s little doubt, though, that critics will continue attacking the notice-and-staydown straw man. And it\u2019s really a shame, because advocates of notice-and-staydown are quite conscious of the importance of protecting fair use. This is easy to see, but first you have to look at what they\u2019re really saying.<\/p>\n","protected":false},"excerpt":{"rendered":"

Ever since the U.S. Copyright Office announced its study of the DMCA last December, the notice-and-staydown issue has become a particularly hot topic. Critics of notice-and-staydown have turned up the volume, repeating the same vague assertions about freedom, censorship, innovation, and creativity that routinely pop up whenever someone proposes practical solutions to curb online infringement. […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,29,1],"tags":[327,486,497,499,543,544,625,788,918,1028,1029,1110,1295,1330,1406,1500,1505,1585],"class_list":["post-2844","post","type-post","status-publish","format-standard","hentry","category-copyright","category-internet","category-uncategorized","tag-content-id","tag-eff","tag-elliot-harmon","tag-elsevier","tag-fair-use","tag-fair-use-principles","tag-google","tag-joshua-lamel","tag-maria-schneider","tag-notice-and-takedown","tag-notice-and-staydown","tag-paul-doda","tag-sean-oconnor","tag-section-512","tag-straw-man","tag-u-s-copyright-office","tag-ugc-principles","tag-youtube"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2844","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=2844"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2844\/revisions"}],"predecessor-version":[{"id":15879,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/2844\/revisions\/15879"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=2844"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=2844"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=2844"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}