The critical flaws of the DMCA system in general is once again on display as Epic Games DMCA’s it’s own YouTube trailer.
For years, one of the main criticisms against the Digital Millennium Copyright Act (DMCA) has been that there are no practical repercussions against those who fraudulently send takedown notices. Instead, the law assumes that the accuser is always right and that they have the right to be prosecutor, judge, jury, and executioner on copyright cases. Various services, innovation, and users have paid for the consequences ever since.
Of course, the direction major corporate rights holders have taken is to double down on these flaws and automate the process. Digital rights advocates rightfully point out that efforts to automate simply do not take into account legal exceptions in copyright laws such as satire, educational purposes, and criticism to name a few.
All this leads up to a recent case of Epic Games issuing a DMCA notice on itself. The company has released a trailer for season 6 of the well publicized game Fortnite. With authorization, the trailer was posted to YouTube to drum up interest in the game. Then, a curious thing happened, Epic Games wound up issuing a DMCA notice against the trailer, taking the trailer down on the grounds of copyright infringement. From Games Radar:
A Fortnite season 6 trailer was briefly taken down earlier this week, after receiving a strike from YouTube for copyright infringement. That alone would be strange enough, since trailers and promotional videos typically secure the rights to any third-party media ahead of time. But the real kicker here is who issued the claim: according to a screengrab posted to Reddit, it was none other than Fortnite’s own developer, Epic Games.
Players responded with a bevy of memes and references. “You played yourself,” “Trust nobody, not even yourself,” “It hurt itself in confusion,” and of course, the classic Spider-Man pointing at Spider-Man image. With players clearly having a laugh and the trailer back up, it might seem like a case of no harm, no foul. But it does serve to highlight some issues with YouTube’s copyright strike system.
The author speculates on the possibilities. It could have been someone pretending to be Epic Games taking down the trailer or an automated takedown was issued against the trailer itself. Regardless of the possibilities, both highlight the flaws not just for the YouTube system, but the DMCA law itself as a whole.
The DMCA compels services to run a notice and takedown system in the first place. If a service operating in the US receives such a notice, they have no choice but to take down the content. If the uploader wishes to dispute it, they can issue a counter-notice, but such efforts have mixed results. sometimes, legal content stays down. Other times, content is eventually restored, but only after days, if not, weeks of being in legal murky waters.
If some prankster is pretending to be Epic Games, they will suffer no consequences. In spite of widespread DMCA abuse by those fraudulently taking down content with the DMCA, there are no known cases where the perpetrators suffered any consequences.
If this is a case of an automated system gone awry, it shows that such systems are fatally flawed in the first place. If an owner can accidentally take down their own content, anyone can suffer from the same fate.
In fact, an automated system being critically flawed was highlighted back in August when ToppleTracks issued a DMCA notice through Google against the EFF. The company admitted an algorithm took down Google links to old legal documents published by the digital rights organization. The company in question clearly and obviously had no rights to the content because the legal documents have nothing to do with them or content that they may or may not own or are commissioned/payed to protect. Since the EFF has plenty of lawyers on staff, they were able to easily fight this.
From an international perspective, if major corporate rights holders are demanding that other countries implement similar notice and takedown laws, cases like this need to be carefully examined because it shows the true ramifications of letting these people run wild. This is far from the first time something like this has happened. With no changes in the American law coming in the foreseeable future, this won’t be the last time something like this happens either.