In late July, almost eight weeks after I first published my analysis of an annotated version of the contract cast members sign, a CBS lawyer in New York sent a DMCA takedown notice to Scribd, the document hosting service I used to present the files in an easy-to-use reader that was embedded in my stories. CBS’ letter claimed that “[s]uch copying and use of this material constitutes clear infringement of the Rights Owner’s copyrights under the Copyright Act, including the DMCA, and its counterpart laws around the world.”
What is a DMCA takedown notice? The Citizen Media Law Project explains:
“If your hosting service or other online service provider receives a DMCA takedown notice regarding your content, it ordinarily will respond by removing the complained-of material, and it will do this automatically without making any judgment about whether your content actually is infringing. However, the DMCA notice-and-takedown procedures provide you with protection from a wrongful claim of copyright infringement. The DMCA requires your service provider to notify you promptly when it removes any of your content because of a takedown notice, and you have the right to submit a counter-notice asking that the material be put back up. […] If you are not prepared to stand up for your use of the copyright owner’s work in a lawsuit, you should think twice about firing back a counter-notice. That said, copyright owners sometimes send bogus takedown notices that have no basis in law or fact, which are meant solely to intimidate the target. A prompt counter-notice can make these empty threats go away for good.”
Chilling Effects notes that if someone sends a counter notice “claiming that the material does not infringe copyrights, the service provider must then promptly notify the claiming party of the individual’s objection. [512(g)(2)] If the copyright owner does not bring a lawsuit in district court within 14 days, the service provider is then required to restore the material to its location on its network. [512(g)(2)(C)]” (Because of the way this works, the Electronic Frontier Foundation argues that “the DMCA has become a serious threat that jeopardizes fair use, impedes competition and innovation, chills free expression and scientific research, and interferes with computer intrusion laws.”)
Two weeks ago, I sent a counter-notification, modifying Scribd’s template and writing in part that “I believe the claims of copyright infringement are inaccurate and should be rejected because: My use of the material is legally protected because it falls within the ‘fair use’ provision of the copyright regulations, as defined in 17 USC 107. My use was for criticism, comment, and news reporting about the documents as part of my work as a journalist and television critic, and the annotated documents were embedded as part of these two stories that reported on, criticized, and explained the contents of the documents.” (Copyright law allows for fair use, which includes “for purposes such as criticism, comment, [and] news reporting.”)
As explained above, that essentially gave CBS 14 days to sue me. While I believe in standing up for things you believe in, that was, as you can imagine, kind of scary. I’m just a journalist and critic with a laptop, TV, and a cat.
Tonight, two weeks later, a representative of Scribd wrote to me to say that “CBS has not responded to multiple requests for follow-up on your counter-notifications,” and the the documents “have been restored.” (Scribd, by the way, has been great throughout the process.)