Comments on: Are Takedowns in 48 Hours “Expeditious” Enough?–Square Ring v. UStream

By: Methaya Sirichit

Methaya Sirichit — Fri, 13 Feb 2015 02:40:00 +0000

Actually copyright law in most countries (as per Berne Convention) do not protect live broadcast and only protect “rebroadcasting.” As a result, it is not an infringement if the infringer live-stream the signal coming from different telecom providers.

By: j.r.mchale : Recommended:

j.r.mchale : Recommended: — Wed, 04 Feb 2015 16:50:34 +0000

[…] Are Takedowns in 48 Hours ‘Expeditious’ Enough? The Case of Square Ring v. UStream – Professor Eric Goldman at the Technology & Marketing Law Blog. […]

By: Zachary Strebeck

Zachary Strebeck — Mon, 02 Feb 2015 04:03:00 +0000

In reply to Anonymous.

Agree on all counts.

Though I believe the law should require shorter times on both ends, particularly when most of this can be automated. When a YouTube video, for instance, gets hit with a takedown, the amount of revenue that the creator could be missing out on could be very big (by YouTube creator standards, anyway) if they have to wait the 10 days.

Although the point of the 10 days seems to be to give them the time to file their lawsuit. It’s a difficult situation all around, i suppose.

By: Anonymous

Anonymous — Mon, 02 Feb 2015 03:42:00 +0000

In reply to Zachary Strebeck.

If the ISP wants to retain safe harbor, it cannot evaluate the merit of a takedown. At best, it can cite material deficiencies in the notice, like a missing “good faith” statement, and ask for an updated notice to be resubmitted.

Of course, the ISP can choose to evaluate on the merits and resist takedown notices that it determines to be improper, but it will lose safe harbor protection in doing so.

Your statement of “giving the ISP at least 10 business days to reenable access after a counter-notice” is slightly incorrect. The ISP doesn’t have 10 days to re-enable after a counter-notice, it *must* wait at least 10, but no more than 14 business days after a counter-notice before it is allowed to re-enable.

I do agree with you about your sentiment regarding the timing of the takedown/reposting, though. If the ISP is expected to remove expeditiously, shouldn’t the claimant also be expected to file a lawsuit expeditiously if there is a counter-claim? If so, then that would mean that 10-14 business days is “expeditious.”

By: Zachary Strebeck

Zachary Strebeck — Mon, 02 Feb 2015 02:10:00 +0000

My understanding is that the ISP is not in the position to evaluate the merits of a takedown request. That is for the person filing the counter-notice.

I would argue that, regardless of the law, making the takedown happen within 48 hours, but giving the ISP at least 10 business days to reenable access after a counter-notice seems a bit unfair to someone who has a legitimate claim of fair use or mistake on the part of the party sending the original notice.

The whole thing is kind of messy, unfortunately.

By: Anonymous

Anonymous — Sun, 01 Feb 2015 02:38:00 +0000

At the hosting provider where I work, DMCA takedowns are generally handled by forwarding the notice to the customer and giving them two business days to remove the content. After this period expires, if the content is still present, we take action. It’s done this way to allow the site owners to remove the content claimed as infringing without someone on our staff possibly breaking something on the customer’s site because we aren’t familiar with the website coding.

Our lawyers seem to think that two business days is expeditious. Something else to consider in cases of livestreaming is whether a provider’s DMCA-handling staff is even in the office and able to respond to a request at the time the stream occurs. My company’s legal department is not 24/7, for example.

By: Julie

Julie — Tue, 27 Jan 2015 19:16:00 +0000

Recent decision in France involving Daily Motion said a week was too long to leave content up. http://ipkitten.blogspot.com/2014/12/tf1-v-dailymotion-meet-third-generation.html

By: curtisneeley

curtisneeley — Tue, 27 Jan 2015 18:55:00 +0000

In reply to David S. Gingras.

48 hours will not be enough time for a jury. After being shown how
easily taking things offline is, the damages should be easily supported
because violation take-downs should be nearly-immediately where possible
and without counter-notices. GOOG should soon be battling to survive at all because of ignoring several hundred of mine for years. Justice is just no possible in the “America” that overthrew the United States.

By: David S. Gingras

David S. Gingras — Tue, 27 Jan 2015 18:49:00 +0000

Wow — very scary ruling, but very relevant; thanks for posting. It is baffling that the court would say whether or not Ustream acted “expeditiously” is a jury question. It sounds like all of the underlying facts were undisputed such as the date/time the DMCA notices were sent and the date/time the content was removed. What disputed issues of fact would the jury be asked to resolve? None that I can see. Because the facts were not disputed, it seems like the court should have resolved the remaining question as a matter of law — the removal was either expeditious or it was not — then let the losing party appeal. If the timing of the takedown is always a question of fact, then the jury will be making up the law on an ad hoc basis. That seems directly inconsistent with the intent of the DMCA. Google must be quaking in its boots at this one — they generally take weeks to consider DMCA notices I send them, and usually they’re just ignored.

By: Rain, Rain

Rain, Rain — Tue, 27 Jan 2015 18:14:00 +0000

Two separate courts found that Veoh was eligible for safe harbor when it “disable[d] access to the allegedly infringing videos, often the same day
that Veoh receive[d] notice, or within a day or two of notice.” UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099, 1103 (C.D. Cal. 2009) (Matz, J.); Io Group, Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008) (Lloyd, Mag. J.) (“Veoh often responds to infringement notices the same day they are received, or at most, within a few days.”)