Content Moderation Case Study: Electric Truck Company Uses Copyrights To Hide Criticism (2020)


of copyright-as-censorship department

Summary: Businesses face many challenges when it comes to moderating content, but complications arise when users or businesses attempt to use copyright law as a tool to block criticism. In the United States, the content laws that allegedly infringe the rights of a copyright holder are different from those of most other types of content, which creates some interesting challenges in the moderation space. contents.

More precisely, under Article 512 of the Digital Millennium Copyright Act (DMCA), online service providers who do not wish to be held responsible for user-posted material that infringes copyright should take a few steps to avoid liability. One of these key steps is the establishment of a “notice and takedown” process, in which a copyright holder can notify the website about allegedly infringing material; and if the site removes access to the work, it cannot be held responsible for the infringement.

This process strongly encourages websites to remove content upon receiving a takedown notice, as this automatically protects the site. However, this strong incentive to remove content has also created another kind of incentive: Those who want content removed from the internet can submit takedown notices alleging copyright infringement, even if the work does not infringe copyright. This creates an interesting challenge for businesses that host content: determining when a copyright takedown notice has been submitted for illegitimate purposes.

In September 2020, news broke that Nikola, a promotional video from an alternative energy truck company showing its new hydrogen fuel cell truck driving along a highway, was fake. A report from a research firm criticized the company, saying the truck was not powered by its own propulsion. It turned out that the truck did not have a hydrogen fuel cell and was instead caught on camera rolling down a hill; Nicolas admitted to rigging his promotional video. In Nikola’s response, he admits the truck didn’t move on its own, but still claimed the initial report was “false and defamatory.” While Nikola’s response highlights areas where she disagrees with the way the research firm wrote about the company’s efforts, it fails to identify any genuine “false” statements of fact. .

Soon after, many YouTube creators who made videos of the situation found that their videos of the incident were being removed due to copyright claims by Nikola. While the video creators used some of the images from the faked promotional video in their YouTube videos, they also noted that this was clearly fair use as they were reporting the controversy and simply using a short clip from Nikola’s faked promotional video, often featuring in much longer videos with commentary.

When asked about the situation, spokespersons for Nikola and YouTube appeared to give very different answers. Jon Brodkin d’Ars Technica posted everyone’s comments side by side:

“YouTube regularly identifies copyright infringements of Nikola’s content and shares video listings with us,” a Nikola spokesperson told Ars. “Based on the information from YouTube, our initial action was to submit takedown requests to remove content that has been used without our permission. We will continue to assess flagged videos on a case-by-case basis.

YouTube offered a different description, claiming that Nikola simply took advantage of the Copyright Match Tool made available to members of the YouTube Partner Program.

“Nikola has access to our copyright matching tool, which doesn’t automatically remove any videos,” YouTube told the [Financial Times]. “Users should complete a copyright removal request form, and in doing so, we remind them to consider exceptions to copyright law. Anyone who believes that reusing a video or a segment is protected by fair use may file a counter notification. “

Business Considerations:

  • Given the potential liability of not removing a infringing video, to what extent should YouTube investigate whether a copyright infringement claim is legitimate?
  • Is there an evolving process that will allow the company to review copyright takedowns to determine whether or not they are seeking to remove content for unrelated reasons?
  • What type of review process should be in place to deal with situations, like what happened with Nikola, where a set of videos are flagged as copyright infringements and are removed because those videos featured the copyrighted material such as news or commentary, and copyright infringement takedown requests were inappropriate?
  • Inappropriate withdrawals can badly impact the internet platform removing content, but often make sense to avoid potential liability. Are there better ways to balance these two competing pressures?

Considerations on the issues:

  • Copyright is one of the few laws in the United States that can be used to pressure a website to remove content. Since the incentives support both overblocking and misrepresentation, are there better approaches that could protect speech, while giving businesses more opportunities to investigate the legitimacy of infringement claims?
  • Under the current DMCA 512 structure, users can file a counter notification with the website, but the copyright holder is also notified and has 10 days to file a lawsuit. The threat of a lawsuit often discourages counter-opinions. Are there better systems for those who feel wrongly targeted to voice their concerns about a copyright claim?

Resolution: After the press picked up on the story of these questionable takedowns, many YouTube creators find that disassembly requires had been abandoned by Nikola.

In July 2021, nine months after the fake videos were announced, Nikola founder Trevor Milton was accused of securities fraud by the SEC for rigged videos.

Originally published on the Trust and Security Foundation website.

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Filed Under: censorship, content moderation, copyright, review, dmca, dmca 512, recalls
Companies: nikola, youtube

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