How American Copyright Law Made Kim Jong-un Look Like A Fool: A Beginner's Guide to the DMCA

Dear Kim Jong-un, this is what your propaganda looks like to us.

So for the second time in 63 years, we're being pushed to the brink of war with North Korea.  Kim Jong-un, the young bellicose ruler, has been making provocative statements for past few weeks and has aimed his ballistic missiles at U.S. bases in South Korea and Guam.  To make matters worse, because of his youth and untried-ness on the world stage, he's been harder to read than his father and grandfather, making him much less predictable that either of his forebears.  I don't wish to downplay the peril of the situation and I think the Obama administration should be taking all appropriate steps to ensure the safety of the American people, as well as America's allies in Japan and South Korea.  That said, I find it hard to take their threats seriously when they can be made to look so foolish because of American copyright law.

Let me explain. Back in February, the North Korean military released a propaganda video on YouTube that quickly went viral.  The video, scored by a bizarre instrumental version of Michael Jackson's "We Are The World," showed footage of Korean missiles reducing New York City to a flaming husk of rubble.  Unfortunately for Mr. Kim, that footage was taken directly from Activision's hit video game, Call of Duty: Modern Warfare 3.  And since the North Korean military failed to get permission to use that footage, Activision issued a DMCA takedown notice to YouTube.  YouTube complied with the takedown notices and removed the video from their site.  Now when you Google that video, you'll see the image I've posted above.

So how did Activision rout the mighty DPRK?  Well, as I've discussed again and again on this blog, you can't just use someone's copyright without their permission, even if you're a rogue nuclear state who won't submit to U.N. treaties.  That's infringement.  And when you post someone else's copyright online, the DMCA (short for Digital Millennium Copyright Act), gives you the ability to bypass the infringing party and go straight to their Internet Service Provider (ISP).  One of the most common provisions of the DMCA - and the one that's applicable to most artists - is the takedown provision. It's basically a cease and desist letter to the infringer's ISP which states, in effect, that the infringer has used your copyright without permission and the ISP must remove the copyrighted material immediately.  This is something any artist can do... you just include the following in your letter:

  1. Your signature
  2. Identification of your work that was infringed
  3. Identification of the material that infringed your work and that you wish to have taken down, and enough information to allow the ISP to locate the material
  4. Your contact information
  5. A statement that you have a “a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law”
  6. A statement that “the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

There's no other work required, no fee, no central clearinghouse.  Most ISPs, like YouTube, would rather just take down the offending work than fight you in potential litigation.  That's one of the benefits of the DMCA takedown provision - it's quick and painless and it almost always works. Another benefit of this provision is that you can fight back against infringers without paying a dime in lawyer's fees or litigation costs.

But there are downsides too.  For example: it requires perpetual vigilance.  In this case, Activision went right after YouTube, which took down the video immediately.  Yet the video is still present on the web and can only be taken down if Activision sends whoever is hosting the video a takedown notice.    To wit: Liveleak was able to catch the video before it went down; you can watch it here if you want.  It's truly ludicrous and hilarious.  This is one reason why the DMCA (signed into law in 1998) is simultaneously despised and beloved.  When it works, it really works.  But when it fails, it's a giant clusterfuck.  As with most of this country's intellectual property laws, I'm of two minds on the DMCA.  I'm a big fan when it helps the small and struggling artist, but I'm less forgiving when the law can be used by giant corporations to abuse copyright and bully individual artists.  And Lordy Lordy Lordy does the DMCA get abused by corporate copyright holders.

Last week, Gizmodo published this piece discussing how large corporations use the DMCA to strong-arm researchers into censoring their work in order to prevent embarrassing revelations related to their copyrights.  And who could forget NBC sending Brian Kamerer a DMCA takedown notice for HIS OWN COPYRIGHTED VIDEO after it was featured on The Tonight Show without his permission?  And my personal favorite, the RIAA (Recording Industry Association of America), complaining that Google (YouTube's parent company) wasn't taking the problem seriously, even after Google removed 1.2 millions of copyrighted links in one month after receiving the RIAA's DMCA takedown notices.

One of the problems, of course, is that because issuing a takedown notice is free of charge, the only hinderance is the cost of paper and printer ink.  Corporations can fire off reams of takedown notices without batting an eye.  And while it's certainly possible to fight the takedown notice and have your work reinstated online, well that requires fighting it out through litigation, another cost that a corporation can absorb much more easily than an individual artist.

I don't have an answer on how to fix this, but I do know that there needs to be a way to disincentivize the corporations from issuing takedown notices en masse under the DMCA.  One possible way is to include the infringer in the process instead of going directly to the ISP.  Maybe create a department within the Copyright Office that would handle the takedown notices or attach a fee to it.  I'm just spit-balling here.  I'm perfectly willing to concede that these could be bad ideas, but I do think we need to start somewhere.

Nevertheless, I don't think the DMCA should be killed wholesale, precisely because of the boon it provides to the individual artist who wants nothing more than to protect his or her work.  And if North Korea wants to reissue their propaganda video without using someone else's copyrighted video, I will stand up for their right to do that.  Although somehow I think they have bigger fish to fry at the moment.

Greg Kanaan

The [Legal] Artist, Boston, MA, USA