There are many content moderation challenges that companies face, but complications arise when users or companies try to make use of copyright law as a tool to block criticism. In the US, the laws around content that allegedly infringes on a copyright holder’s rights are different than most other types of content, and that creates some interesting challenges in the content moderation space.
Specifically, under Section 512 of the Digital Millennium Copyright Act (DMCA), online service providers who do not wish to be held liable for user-posted material that infringes copyright need to take a few steps to be free of liability. Key among those steps is having a “notice-and-takedown” process, in which a copyright holder can notify the website of allegedly infringing material; and if the website removes access to the work, it cannot be held liable for the infringement.
This process creates a strong incentive for websites to remove content upon receiving a takedown notice, as doing so automatically protects the site. However, this strong incentive for the removal of content has also created a different kind of incentive: those who wish to have content removed from the internet can submit takedown notices claiming copyright infringement, even if the work does not infringe on copyright. This creates an interesting challenge for companies hosting content: determining when a copyright takedown notice has been submitted for illegitimate purposes.
In September of 2020, news was released that Nikola, an alternative energy truck company’s promotional video showing its new hydrogen fuel cell truck driving along a highway was false. A report by a research firm criticized the company, saying that the truck did not move under its own propulsion. As it turned out, the truck did not actually have a hydrogen fuel cell and was instead filmed rolling downhill; Nikola admitted that it had faked its promotional video. In Nikola’s response, it admits that the truck did not move on its own, but it still claimed that the original report was “false and defamatory.” While the response from Nikola does highlight areas where it disagrees with the way in which the research firm wrote about the company’s efforts, it does not identify any actual “false” statements of fact.
Soon after this, many YouTube creators who made videos about the situation discovered that their videos about the incident were being removed due to copyright claims from Nikola. While video creators did use some of the footage of the faked promotional video in their YouTube videos, they also noted that it was clearly fair use, as they were reporting on the controversy and just using a short snippet of Nikola’s faked promotional video, often presenting it in much longer videos with commentary.
When asked about the situation, Nikola and YouTube spokespeople seemed to give very different responses. Ars Technica’s Jon Brodkin posted the comments from each side by side:
“YouTube regularly identifies copyright violations of Nikola content and shares the lists of videos with us,” a Nikola spokesperson told Ars. “Based on YouTube’s information, our initial action was to submit takedown requests to remove the content that was used without our permission. We will continue to evaluate flagged videos on a case-by-case basis.”
YouTube offered a different description, saying that Nikola simply took advantage of the Copyright Match Tool that’s available to people in the YouTube Partner Program.
“Nikola has access to our copyright match tool, which does not automatically remove any videos,” YouTube told the [Financial Times]. “Users must fill out a copyright removal request form, and when doing so we remind them to consider exceptions to copyright law. Anyone who believes their reuse of a video or segment is protected by fair use can file a counter-notice.”
- Given the potential liability from not taking down an infringing video, how much should YouTube investigate whether or not a copyright claim is legitimate?
- Is there a scalable process that will allow the company to review copyright takedowns to determine whether or not they are seeking to take down content for unrelated reasons?
- What kind of review process should be put in place to handle situations, like what happened with Nikola, where a set of videos are reported as copyright violations and are taken down because those videos featured the copyrighted material as news or commentary, and the copyright infringement takedown requests were improper?
- Improper takedowns can reflect poorly on the internet platform that removes the content, but often make sense to avoid potential liability. Are there better ways to balance these two competing pressures?
- Copyright is one of the few laws in the US that can be used to pressure a website to take down content. Given that the incentives support both overblocking and false reporting, are there better approaches that might protect speech, while giving companies more ability to investigate the legitimacy of infringement claims?
- Under the current DMCA 512 structure, users can file a counternotice with the website, but the copyright holder is also informed of this and given 10 days to file a lawsuit. The threat of a lawsuit often disincentivizes counternotices. Are there better systems enabling those who feel wrongfully targeted to express their concerns about a copyright claim?
In July of 2021, nine months after the news broke of the faked videos, Nikola’s founder Trevor Milton was charged with securities fraud by the SEC for the faked videos.
Written by the Copia Institute, October 2021