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DMCA Safe Harbor: Why Artists Can’t Sue Instagram

DMCA Safe Harbor: Why Artists Can't Sue Instagram | Art Business Journal

Boats in Harbor

Today’s digital world is fraught with social media practices that can present critical problems for artists and copyright holders, and DMCA safe harbor provisions only make the problem more complex. Since the advent of websites like YouTube, Instagram, and Facebook, artists’ work is more visible than ever. But it’s also far more prone to being used in ways that the artist didn’t bargain for, and oftentimes, the artist doesn’t realize that they gave their rights away when the art was uploaded to a social media platform, like Instagram and IGTV. And while there are certain steps an artist can take to protect their creative works from being shared illegally on the internet, including legal action against the infringer, DMCA safe harbor provisions generally protect the website hosting the infringing image from any legal liability.

Say you’re a video artist and painter. You’ve just uploaded your latest video creation to YouTube from which you derive income based on the number of clicks or views your video receives.  Later, one of your fans links your video on their Facebook page. That’s fine because even though it may seem like the video is playing on Facebook, it is actually streaming from YouTube and counted toward your number of views. Instagram on the other hand, does not allow posted links.  So one of your fans decides to download your video and repost it on Instagram, which is then viewed twenty thousand times. Many of these viewers would have eventually seen your video through Facebook, Youtube, or other social media platforms and you would have derived income from those views. However, in this case, you have lost those viewers and the income generated from those views. Let’s add to this scenario the fact that the Instagram post did not reference you or your YouTube channel so you didn’t even get a promotional benefit from the share. Understandably upset, you ask Instagram to take down the post, and they comply (see How to Submit a Copyright Takedown Notice).  But taking down the post simply isn’t enough – you want to be compensated for lost wages.

Let’s take an even more egregious, but very common scenario. Let’s say you also uploaded an image of one of your latest paintings to your Instagram account. One of your followers liked the artwork so much that he uploaded the image to Café Press, a print-on-demand website and suddenly your artwork is appearing on mugs, t-shirts, and pillows. You had absolutely no idea until a friend alerts you that someone in his office had a coffee cup with your painting on it. This has apparently been going on for months and hundreds of t=tiems have been sold based on your artwork. You issue a takedown notice with Café Press and the items are immediately removed but both the uploader and Café Press have received significant income from your work, and you have received nothing.

Under copyright law, the copyright holder has the exclusive right to:

  1. reproduce (i.e., make copies of) the work;
  2. create derivative works based on the work (i.e., to alter, remix, or build upon the work);
  3. distribute copies of the work; or
  4. publicly display the work.

Copyright is also a “no-fault law,” which means that it doesn’t matter whether someone intended to infringe or even knew that they were infringing.  If these rights are violated, it is an infringement.  So, in our two scenarios, both of the uploaders, Instagram, and Café Press would all be liable for copyright infringement and could be sued for any profits they derived from your work along with the licensing fees you would have made from the use of the works.

However, in this case, there is a wrinkle. Thanks to the Digital Millennium Copyright Act, a law that was enacted in 1998, Instagram and Café Press are both shielded from liability due to any infringement initiated by their members.

To continue our scenarios, you decide to take action against both uploaders only to discover that neither has any money or sellable assets they can use to pay you in a lawsuit. So a lawsuit would only provide the lawyer with legal fees and you would end up with nothing.

It may sound completely absurd, but lawmakers figured the best way to ensure a free flow of information on the internet was to protect website hosts from incurring any debilitating costs from litigation. It’s a pretty big canopy under which ISPs hide from copyright lawsuits but it is also somewhat of a necessity in order for websites to operate.

DMCA Safe Harbor: How Does it Work?

The DMCA safe harbor was designed to protect passive internet service providers (ISP), which can be defined as internet companies that allow users to generate or upload content, from incurring any liability if copyright infringement was found to have occurred on their website. Conceptually, this makes sense. Given that copyright is a no-fault law, every time a user-uploaded infringing material, even if it appeared for only a second before removal, the ISP would be open to a lawsuit from infringement. It would be impossible for any website with user-generated content to not only police every upload but also to defend against all the lawsuits.  Thus, websites like Facebook, Twitter, Instagram, YouTube, and Artrepreneur may have infringing material posted to their websites with the burden of policing infringements to the copyright holders.

The DMCA safe harbor may seem wide-reaching, but the law does require ISPs to take certain measures to help copyright holders should any infringement come to their attention. This includes a process for quick removal of the offending material once notified of the infringement and instituting methods of detecting infringing material from the moment it’s uploaded.

So how would you, as an artist whose copyright rights have been infringed upon, defend yourself against an ISP that’s hosting your copyrighted content? First, you would need to find the offending material – not always an easy task. Then can you file a takedown notice with the company, and they are required to comply within a reasonable time frame. But the definition of “reasonable” can vary from company to company since those parameters haven’t been defined by a court of law.

Once you’ve filed a takedown notice, the company must comply and remove the allegedly infringing content, as well as notify the original poster that their content has been removed. Large websites, like Instagram and Artrepreneur, have automated systems that remove the infringing material immediately. Once a takedown is initiated and the infringer is notified, the infringer has the option to file a counter-notice, stipulating that the content is not infringing and then the ISP is required to re-post the content. Unfortunately, the counter-notice does not require any legal justification whatsoever, so it is easy for an infringer to send the counter-notice with no consequence. The internet provider must comply, and only after a formal legal judgment or settlement has been reached by the two parties can the content be removed once and for all.

That part of the law may seem harsh, or stupid, but the law is trying to protect those with the right to upload content from being harassed by copyright holders. Imagine you buy the rights to use an image from an artist friend and then later, you both have a falling out.  The artist decided to initiate takedowns wherever you are using the image.  If proof of your rights is required for the counter-notice, then the ISP would be effectively be acting as the judge and jury. We don’t want companies making decisions that should be left to a court that understand the nuances of the law.

The problem for artists is that the cost of litigation can often be extravagant for what in their minds is a simple open and shut case of someone using their work without permission. What if the offending poster is insoluble? Hard to find? Wealthy and ready to defend your claim vigorously? Between finding an attorney, negotiating where to litigate, and filing court fees and costs, it’s likely that a lawsuit will be far more trouble than it’s worth.

Why DMCA Safe Harbor Negatively Burdens Artists

The fact that an artist has to take so many steps only to potentially end up exactly where they started makes the DMCA safe harbor appear to favor infringers and companies rather than the artists. Thankfully, several studies have shown that counter-notices are rarely used and when they are used, it is generally for appropriate reasons. However, rare may seem small but given the number of takedowns initiated each year, the actual number of counter-notices may still be fairly high. For example, in 2016, Google was handling about 2 million takedown notices each day.

So it is still important to take steps to protect your work.  Here are a few ways to mitigate your risks online.

To begin with, don’t share or post content that hasn’t been registered with the Copyright Office. It’ll be much easier to make a demand from the offending poster if you have the proper documentation backing you up. Although copyright is automatic at the time of creation, registration allows the copyright holder to receive $750- $30,000 per infringement, and the infringer is responsible for the copyright holders’ legal fees. With registration for copyrights costing just $35, it’s worth making the investment to protect your work.

You can also use a site like ImageRights, which not only makes it easy to register works with the Copyright Office but also has a scanning service that scours the web for copies of uploaded work and notifies you when it finds a copy of your work. At that point, you can either flag it as non-infringing or mark it as an infringement that you do not want to pursue, such as if the infringement is on a website in a country would be difficult to litigate in.  Or you can submit the work to the Image Right legal team, who will review the case and handle any legal action for you in return for a piece of the proceeds from the lawsuit.  One piece of advice, it is far easier to sue for infringement if the artwork had been registered with the Copyright Office prior to the infringement because regardless of the amount you may receive, legal fees are paid for by the infringement separately.  Legal fees are not available unless the work had been registered prior to the infringement.  While it can be expensive to register every artwork you post, you should, at least, consider copyright registration for your most popular works.

Whether you’re helped or hurt by DMCA’s safe harbor, it’s clear that such wide protections for internet providers are bound to create plenty of confusion as social media sharing becomes more and more popular. In fact, you may even wonder whether copyright laws need to be overhauled to put more burdens on big companies. Or perhaps you’re glad the system is in place because if you accidentally infringe on someone’s content, you’d like the opportunity to defend yourself before it gets to court.

Nicole Martinez

Nicole is a veteran arts and culture journalist. Her work has appeared in Reuters, VICE, Hyperallergic, Univision, and more.

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