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April 7, 2011
Facebook and Takedown Notices
A few days ago I pointed at the underreported relevance of Viacom v YouTube
and the associated ideas of safe harbor and takedown notices. I've since gotten a private communication of frustration from someone who believes Facebook is potentially blocking this kind of arrangement from working.
Here's the gist: this person is responsible for enforcing a contract between his organization and a broadcaster. The broadcaster pays for exclusive rights to film and sell recordings of an event; in return he, acting on behalf of his organization, agrees to help enforce the exclusivity by delivering take-down notices when infringing material (such as home-made recordings of the event) is found. So far so good, all in accord with how the Copyright Act envisions things should go.
The problem comes when people post their videos not to open sites like YouTube, but to walled gardens such as Facebook. The person gets a notification (say, someone sends an email saying "I saw a video of your event on Facebook") but when he goes to Facebook to search for the video he's prevent from searching it. The consequent is that he can't provide an adequate notice to Facebook.
The question to hand is whether sites like Facebook are doing enough to permit copyright holders to issue proper notices. I'm not certain. The notion of friends lists and posting things privately to your friends is inherent in most social sites; I don't want to lose that, nor do I think I want Facebook to be legally required to go on fishing expeditions through user content. On the other hand, if being less open is allowing Facebook to escape responsibilities that more open sites like YouTube have to handle, doesn't that encourage the walled gardens and discourage openness?
I'm not happy with either answer.
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