Creationist-Atheist Brouhaha Over DMCA Takedown Notices

Ars Technica reports that Creation Science Evangelism (CSE), a creationist group founded by Kent Hovind (who is currently in prison for violations of federal tax law), recently sent a raft of questionable DMCA takedown notices to YouTube complaining that various user-posted videos infringed its copyrights in videos of its seminars.

Among those users whose videos were taken down was the Rational Response Squad (RRS), a group of atheists dedicated to "fighting to free humanity from the mind disorder known as theism." Apparently, the videos flagged for removal were all critical of CSE, and some consisted of expression entirely original to the YouTube poster. Other videos used portions of CSE's own videos to make critical commentary about the organization. When its videos were removed, RRS unleashed a firestorm of criticism, threatening to sue CSE for abusing the DMCA's notice-and-takedown provisions and even contacting the prosecuting attorney in Hovind's tax case to inform her of CSE's conduct. Others have joined in the mix (here, here, and here). It appears that YouTube canceled RRS's entire account for a time (the rationale for doing so is not clear), but later reinstated it.

As for those videos that contained no CSE content, it is relatively clear that CSE could be held civilly liable for sending takedown notices. Section 512(f) of the DMCA makes a copyright owner liable for damages, including costs and attorneys' fees, for "knowingly materially misrepresent[ing]" in a takedown notice "that material or activity is infringing." 17 U.S.C. 512(f)(1). According to one of the few courts to address the issue, "'[k]nowingly' means that a party actually knew, should have known if it acted with reasonable care or diligence, or would have had no substantial doubt had it been acting in good faith, that it was making misrepresentations." Online Policy Group v. Diebold, Inc., 337 F. Supp.2d 1195, 1204 (N.D. Cal. 2004). CSE, if acting in good faith or with reasonable diligence, plainly could not have believed that a video was infringing it its only complaint was that the video cast CSE in a negative light. Perhaps this is why, after its initial notices were sent, CSE subsequently gave YouTube a list of videos to which it was withdrawing its claim of copyright.

As for those videos that used CSE material to make their point, the question is closer. A copyright owner can be held liable under Section 512(f) for sending a takedown notice if the activity in question is clearly subject to the fair use exception. Online Policy Group, 337 F. Supp.2d at 1204-05. The videos CSE has complained about might be so obviously subject to the fair use exception that no person acting in good faith could believe them to be infringing. But it's hard to say without seeing the videos, which, of course, is impossible now that access to them has been disabled.

An additional, interesting legal wrinkle is the argument, put forward in the video embedded below, that that CSE dedicated its videos to the public domain by repeatedly stating that its videos were "not copyrighted" and encouraging its audience to copy and distribute them freely. If the videos are in the public domain, CSE has no copyright to assert in the first place. If CSE knew this, its takedown notices would likewise violate Section 512(f).

The creator of the video makes a relatively persuasive case that CSE dedicated its works to the public domain through its public statements. But whether CSE did this or merely granted its users a revocable license is a difficult question. CSE's statements are hardly similar to the extensive and explicit language found in, for example, the Creative Commons Public Domain Dedication. CSE's statements might simply have expressed CSE's misunderstanding of copyright law and its desire to grant its audience a license to use its works. On the other hand, CSE's statements arguably reveal an intent to relinquish all rights in the work, whether or not it was correct about the specifics of copyright law. One could point out that the essential message was that the works were not protected at all, not just that the CSE was going to permit its audience to use them.

But even assuming CSE intended to dedicate its works to the public domain, the law is not entirely clear on the effect of such a dedication. There is no statuory provision in the copyright law addressing an author's voluntary dedication of a work to the public domain, and there appears to be no case law on the issue. It's safe to say that there is a general assumption that authors may dedicate their works to the public domain, but this is an assumption that rarely has been tested. Maybe CSE's shenanigans will have one positive result -- a court decision dealing squarely with this question.



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