How we deal with complaints/takedowns

Service: Narrative

Hello!

I'm coming at this question from a particular bias, so I'd like to explain that first.

In my experience, complaints and takedown policies on other platforms like Facebook and Youtube are routinely abused by spiteful people and people who in fact only disagree with the content, rather than find it inappropriate.

The reason this works is because those platforms sometimes remove the content first, and ask questions later.  This forces the content owner to go through a process that can be very frustrating, in order for the content to be reinstated, and once it is, nothing prevents another account (possibly the same bad actor) to complain all over again.

I have seen this in the context of activists - the individuals and interests that are not in favor of their work have an all-too-easy way of silencing them online this way.  The more political the topic, the higher the danger that this gets abused.

How will we deal with these situations on Narrative?

If we can find a policy that prevents this sort of abuse, Narrative will be a Godsend to folks who have been frustrated by this over the years.  I personally know many people who will join for that reason alone.

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This is a tricky area, because the site must comply with the DMCA in order to qualify for the "safe harbor" provisions.

However, the full DCMA process also includes protections for the content poster.

(1)  When the site gets a DCMA takedown request, they provide notice to the content poster...  including the information provided in the initial takedown request.

(2) The content poster has the option to file a counter-claim.  If they do so, the counter-claim information is sent to the person who filed the takedown request (who may then take legal action, if warranted, against the content poster).

Once steps (1) and (2) are complete, the site may then repost the original content, and still be protected.

Many sites try to avoid the expense of dealing with this by stopping at (1).  In other words, they remove the content, and the original content poster is given no recourse.

I would like to see Narrative implement the whole process.  When a DCMA takedown request is submitted, Narrative should provide all information to the content poster, and should give the original content poster a link to a counter-claim form.

This is definitely something that the Narrative team should discuss with their attorneys, in order to fully comply with the law while providing the greatest possible protection to the community.  

By the way, both the original takedown request, and the counter-claim, are filed under penalty of perjury for false information. 

I once had a run-in with an attorney who started filing bogus DMCA takedown requests on my content.  Fortunately, my hosting provider followed the full DMCA process and sent me copies of his takedown requests.

Based on that information, I was able to file a complaint with his state bar association, and he was ultimately censured.  That censure remains on his record permanently, as long as he is practicing law - and he was severely embarrassed in front of his colleagues due to the blatantly false claims he had made.  

My point here is that the full legal process provides protections for everyone.  It breaks down when companies take shortcuts.

Thank you @Robert Nicholson - that was a very informative response.

I'm wondering if you have any notion of how the DMCA applies, or does not apply, to non-US based entities.  Many of the contributors to Narrative will be from other jurisdictions.  The most recent encounters I have had with abuse of the takedown process involved Japanese citizens on Youtube.  People making spurious complaints against conservationist content critical of the whale and dolphin hunting in Japan.

It was great that you had recourse against that attorney because he was US based (even though I'm sure you hated every minute of time you had to waste getting your content reinstated and making sure he faced consequences)... but would there even be that option for people not from the US?

Likewise, would the requirement for the platform to suspend the content even be applicable to complainants from other jurisdictions?  That might be the solution - to only suspend content if the jurisdiction of the complainant can cause trouble for the platform, and in all other cases, allow the complaint process to be completed before taking action?

In cases where platform liability is not immediately present, it would be more fair, perhaps, to leave the content live but place an indication somewhere that there is a complaint against the content, transparently showing the parties to the complaint.  Transparency is one of our guiding principles, and it would seem to have positive applications here.

There might also be some way to deter abuse by revealing the identity of the complainant party publicly - if that is not too fraught with its own problems.  As in not the account, but the actual individual filing the complaint?    We would not want to reveal the link between that real life individual and their Narrative account, but we could internally track that data.  Personally, I think it is only fair for the outcome of a complaint to be public knowledge, and for people to be able to know the identity of people who have abused the process.  Like this, even in countries where there is no legal recourse against abusive takedowns, the abuser would still at least be outed publicly.  And of course their account would suffer reputation penalties... despite still remaining anonymous outwardly.

This brings the consideration of identity tracking to bear, again.

I fully support that Narrative should not retain personal ID data on its servers, but perhaps a DMCA complaint should be an exception to that rule.  After all, this is someone who has initiated a legal procedure - surely privacy laws allow companies to keep data on people who take such a  step?  Like this, abusers would not be able to shed their bad reputations, and Narrative could reapply the history from a former account to the new one if the abuser tries to "shapeshift".

If identifying oneself as part of the DMCA process is a requirement, Narrative may be entitled to track that data.

Now deviating a little bit from what is possible, and imagining what might be preferable if the law were different: I would really favor the law only allowing the takedown once the process has been completed unless there is a clear cut case that irretrievable damages are being incurred.  In the majority of non-commercial content: blogs, videos that either are entirely original or would probably fall under fair use, etc... the monetization could simply be frozen for that content during the dispute, and if the complainant prevails, the funds could be turned over to them?

Being presumed guilty is commonly not acceptable in Western systems of law.

I would love to find a solution to this, though I accept that it might be difficult given that other large platforms don't seem to have found an ideal one yet.

My hope is that they might not have tried hard enough to find a more equitable solution because their focus may have been too blinded to anything else than protecting themselves from liability.  In practice, there may be a middle road that still protects the platform, but better preserves a presumption of innocence for the poster of the content?

 

@Malkazoid

You do not need to be a US citizen, or reside in the US, in order to file a DCMA takedown request.  And under US law, copyrights under the laws of (most) other countries are valid here.

Even though I, as a content poster, might have limited recourse against a foreign complainant, once I file a counter-notice, the original complainant has a limited window under which they MUST file a lawsuit, and the site is free to repost the content without assuming legal liability.  So simply filing the counter-notice puts an end to most abuse.

As for applying the DMCA outside of the US, many countries don't offer anything like the "safe harbor" provisions of the DCMA.  In other words, the site can be held liable even if they did not know the content violated copyright, and even if they take the content down upon request.

In the EU, the European Directive on Electronic Commerce does offer similar protections, but does NOT specify a well-defined process for compliance.  Most businesses seem to implement the DMCA process worldwide, as it provided a reasonable framework that protects all parties, and also shows and audit trail and "evidence of good faith" should the site ever be sued.

I suppose at this point I should insert a disclaimer.

I am not an attorney, and my explanation of copyright laws is provided for information purposes only, and does not constitute legal advice.

The management of Narrative, as well as anyone else facing copyright compliance issues, should consult a qualified attorney for advice,

 

Robert Nicholson posted:

@Malkazoid

You do not need to be a US citizen, or reside in the US, in order to file a DCMA takedown request.  And under US law, copyrights under the laws of (most) other countries are valid here.

Even though I, as a content poster, might have limited recourse against a foreign complainant, once I file a counter-notice, the original complainant has a limited window under which they MUST file a lawsuit, and the site is free to repost the content without assuming legal liability.  So simply filing the counter-notice puts an end to most abuse.

As for applying the DMCA outside of the US, many countries don't offer anything like the "safe harbor" provisions of the DCMA.  In other words, the site can be held liable even if they did not know the content violated copyright, and even if they take the content down upon request.

In the EU, the European Directive on Electronic Commerce does offer similar protections, but does NOT specify a well-defined process for compliance.  Most businesses seem to implement the DMCA process worldwide, as it provided a reasonable framework that protects all parties, and also shows and audit trail and "evidence of good faith" should the site ever be sued.

I suppose at this point I should insert a disclaimer.

I am not an attorney, and my explanation of copyright laws is provided for information purposes only, and does not constitute legal advice.

The management of Narrative, as well as anyone else facing copyright compliance issues, should consult a qualified attorney for advice,

 

Thanks again - great info.

It sounds like perhaps the only domain we might be able to improve upon the stances adopted by other sites, might be the notion of transparency.  If there are no legal hurdles to identifying complainants publicly, this might be dissuasive of deliberate abusers.  Tracking them internally so we can become aware of serial complainants, and affect their reputation accordingly, might also help.  

Of course low reputation on their account won't prevent them from filing lots of abusive complaints, especially if they are not even on Narrative or don't care about their Narrative account as much as they do about silencing people, but it is still part of identifying and diminishing the influence of bad actors.

If I'm hearing you correctly, there is no real way of dissuading foreign individuals from filing multiple spurious takedown requests... but identifying them publicly could be a small step.

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