The US Copyright Office has recently ended the public comment period on the possible revamping of the 18-year-old DMCA, and that's a shame because we've just been handed another example of why one of the proposed changes won't work.
Copyright maximalists have argued that the DMCA's notice-and-takedown setup should be replaced by a notice-and-staydown system where bots would police platforms like Youtube and either prevent users from uploading possibly infringing works or remove them as soon as they are discovered.
Anyone who follows copyright news on the web could tell you of the perils of letting a bot operate with impunity. As Techdirt explained:
This is dumb and dangerous for a variety of reasons, starting with the fact that it would place tremendous burdens on smaller players, while locking in the more dominant large platforms that can build or buy systems to handle this. But, even more importantly, copyright infringement is extremely context dependent. The same content may be infringing in one context, while protected fair use in another. But a notice and staydown process would completely wipe out the fair use possibilities, and potentially violate the First Amendment (remember, the Supreme Court itself has declared fair use to be the "safety valve" that allows copyright law to fit with the First Amendment).
Youtube is itself a cautionary tale, and this week they gave us another example.
Motherboard reports that the video of a recent conference has had its audio muted by an unnamed copyright holder. Titled The Color of Surveillance, this one-day conference focused on how surveillance has been used to utilized against minorities for decades. The video is nine hours long, and we can't here any of it because Youtube is letting the bots run the show:
Whether it was flagged by YouTube’s copyright hunting robots or a third party DMCA bot isn’t clear at this point. Perhaps it was a song played in between speakers, a snippet of a speech, or a bit of fair use footage used. “It's probably because one or two music clips were played,” Alvaro M. Bedoya, a Georgetown law professor specializing in privacy and organizer of the conference, said in an email with Motherboard. He also pointed us at an archived stream of the conference on CSPAN, with audio.
If you are any good at reading lips, here's the video.
None of this should come as a surprise.
As we have seen time and again, automated systems frequently trample the rights of the public in order to "protect" someone's copyright, oftentimes censoring legal uses. For example, in 2015 Youtube silenced the video of a day-long DARPA robotics competition because of a song playing in the background in one part of the video.
And then there's the infamous Hugo awards ceremony from 2012, where the livestream was summarily shutdown when Ustream's DMCA bot detected that the stream was showing a clip from Doctor Who.
And now we have Youtube suppressing the audio from a conference on oppressive surveillance.