A few weeks ago I covered a couple of videos by Doug Walker, aka “The Nostalgia Critic,” as part of his #WTFU “Where’s the Fair Use?” campaign. In the first video, Walker and a number of other YouTube video creators worked to raise awareness that rights-holders are abusing the DMCA’s notice-and- takedown provision. Video creators are receiving takedown notices against videos that are absolutely fair use of copyrighted content by any reasonable definition—or in some cases only discuss that content (movie reviews by two guys sitting in a car talking to each other) without actually including any of it.

In the second video, Walker and his allies only found out a day or so before public comments were due to close that the government had solicited comments on the notice-and-takedown provision of the DMCA in the interest of improving it. Working with advocacy site TakeDownAbuse.org, he campaigned to get as many people as possible to send in comments and make their voices heard by the government.

TakeDownAbuse put up a web form that was reportedly used tens of thousands of times in the last 24 hours or so to send comments in—allegedly causing the government’s servers to crash several times. Subsequently, the government has posted all 92,400 comments received. And that’s where the problem comes in.

At artist-advocacy blog The Trichordist, musician David Lowery points out what he sees as questionably ethical behavior by TakeDownAbuse. In case you’re not familiar with the name, you might know Lowery better by the bands he’s been involved in founding—Camper Van Beethoven and Cracker—though he’s also embarked on a solo career in the last few years.

Lowery is coming from basically the opposite end of the spectrum as The Nostalgia Critic and #WTFU. His own hashtag is #StopArtistExploitation. Where the #WTFU crowd see YouTube’s notice-and-takedown as an obnoxious automated system with minimal oversight and almost no effective way of combatting abuse or even talking to a live human being, Lowery sees it as an all-too-ineffective tool to combat abusers who simply turn right around and upload legitimately-removed content all over again in an endless game of whack-a-mole.

Lowery writes:

In the case of my catalogue most of this user generated content on YouTube isn’t really generated by users at all.  It’s simply album art and ripped audio that I own, none of which was “generated” by the users.  Further the repetition of certain key phrases in the profiles of these “users” suggest that much of this style of mass infringement is committed by an organized group.  Yes, I am arguing RICO laws apply.   It seems odd that a company that claims its mission is to “organize the worlds information”  would not be able to write a simple algorithm to flag this type of behavior that appears to be criminal.  But then again that would give them “red flag” knowledge and they could no longer Sgt. Shultz (“I see nothing!”) the problem.    And then there is the matter of all those billions of views they’d actually have to pay royalties on…

And therein lies the problem. The #WTFU crowd have legitimate grievances—but so does Lowery. But just as both sides have legitimate grievances, both sides also seem to be engaging in unhelpful behavior as well.

Lowery believes this “organized group” is largely made up of “astroturf proxies” for Google, and points out that some of its behavior is legally or ethically iffy. Creating a comment form on their own website to submit comments to the government website is a violation of the rules for submission posted on the site. There’s also the fact that exactly 86,000 comments started out exactly alike (to be fair, Lowery only searched on the first sentence or so, and it’s possible some of them added text on at the end to differentiate), and 47,418 of the FFTF-submitted comments didn’t correctly submit valid first and last names.

Did TakeDownAbuse write a script to automate submission of identical comments on its own behalf, as Lowery seems to be suggesting? Or did they just set up a push-button pre-filled form that users could sign their name to and click “submit”? (This seems more likely given that over half of the people who used it didn’t bother to fill in valid information—not something you’d really set up a script to do, but something you’d happily do if you’re an Internet user with more anger than common sense.)

The thing is, it doesn’t really matter whether they scripted it or just let users push the button. Spamming tens of thousands of instances of an identical form letter, even an identical form letter with valid names on it, doesn’t impress government committees. It just wastes their time. It’s not someone actually putting in the effort to put their own thoughts into words and send them; it’s just someone pushing a button to say “I’m angry.” It’s pure slacktivism.

We saw this all the way back when the Department of Justice asked for public comments on the publisher agency pricing settlement and was notably unimpressed by all the people on both sides who copied and pasted the same form letters dozens or hundreds of times. How much less impressive will they find tens of thousands of duplicate form letters? So, yeah. Thanks a lot, TakeDownAbuse—you did get the word out, but by making it easy for people to lapse into slacktivism, you basically harmed your own side.

Which is not to say that Lowery is entirely in the right, either. He dismisses Channel Awesome as being “largely oriented to teens and pre-teens,” and calls it “essentially a political advertisement to children.” This is actually fairly laughable from the point of view of anyone who’s actually been following Channel Awesome for a while, because as many F-bombs and other bad language as they use, not to mention the other adult material they cover from time to time, it’s pretty clear Channel Awesome is pretty much aimed at anyone but children.

(Indeed, just look at the chosen moniker of the guy who launched the channel. The Nostalgia Critic. Until fairly recently, he didn’t cover anything newer than the eighties or nineties. What would children have to be “nostalgic” about in regard to stuff made before they were even born? Walker is directing his shows at people his own age, who share those experiences with him. So are most of his fellow Channel Awesome broadcasters.)

Lowery is not doing his side much of a service either by spinning out a conspiracy theory and dismissing their concerns so cavalierly. Walker’s explanation behind the #WTFU campaign makes sense, and partakes of just as much frustration from their side as Lowery’s does from his. But Lowery doesn’t mention one word of Walker’s valid concerns over YouTubers’ difficulties concerning valid fair use, and the lack of penalties imposed on bad actors. As far as he’s concerned, there’s no valid reason for objecting to a takedown notice.

If you took Lowery’s post in isolation, you’d assume that the only takedown notices were going to people who posted his songs and album covers. But they’re not. Indeed, I doubt even Doug Walker would call that fair use, or argue it didn’t deserve to be taken down.

But someone who uses a ten-second clip from a movie in the name of review or criticism should not have to deal with a takedown notice from the rights holder. Any court in the land would call that fair use, if it came to a court. The problem with notice-and-takedown is that it doesn’t come to a court; it’s “guilty until proven innocent” and penalizes the video creator right away. It can potentially lead to accounts being locked if too many notices come in at once. Worst of all, there are no effective penalties for abusing it—so consequently rights-holders do so willy-nilly.

Is there any way to solve both sets of problems? The problem where real abuses keep popping up over and over again, and the one where illegitimate takedown notices penalize fair users? I’d like to think so. But as long as neither side is willing to admit the other has a valid complaint, and to see that the other side having a valid complaint does not invalidate their own complaint, nobody’s going to get anywhere.


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