Issuing a Take-Down Notice; Sometimes, Even if You Can, Maybe You Shouldn’t

Given the services that DMCA Force provides, one might reasonably assume that I’m in favor of issuing DMCA take-down notices in response to any and all apparent online infringements on a copyrighted work; one would be wrong to make that assumption, however.

Just to be perfectly clear here, in this post I’m not speaking on behalf of DMCA Force; I’m speaking for myself {namely, Quentin Boyer, a mere Client Services Representative for DMCA Force, not an executive, owner or director thereof} and myself alone. What follows is a personal opinion based not on intellectual property law, but on my perspective as a person with experience in public relations and brand identity management.

I’ve been known to say that the best things about the Internet Age are also the worst things about the Internet Age. For example, widespread and essentially unfettered access to a medium of self-expression of the power and scope of the Internet has given rise to some of the very best acts of creativity in human history, while simultaneously offering the easiest and fastest means to commit acts of fraud, intellectual property misappropriation, intimidation, coercion, etc., that has ever existed.

Similarly, the Internet Age has multiplied the power of “word of mouth” marketing significantly, while also facilitating global content piracy in a way that no previously developed technology could have done. As such, these days the lines between word of mouth marketing, a fan’s “product evangelism” and plain ol’ content piracy is less obvious than you might think — and it is in that gray area between the three where I believe that rights-holders have to be the most cautious about whether or not to issue take-down notices.

To cite one current example, I believe it’s a public relations mistake for NPG Records to have issued a take-down notice in response to Vine videos recently posted by Prince fan Zack Teibloom.

I’m not saying that NPG didn’t have the right to issue the take down notice in question, nor am I saying that a court would rule in Teibloom’s favor, were this matter ever to go to trial. I’d like to think I’m a reasonably well-informed layman where intellectual property law is concerned, but all that really means is that I know just enough about the law to know that I’m not remotely qualified to make such an assessment. Happily, for the purposes of my argument here, legal questions are less relevant than public relations ones.

In this instance, I just don’t see how a public relations impact analysis of the situation could possibly favor targeting Teibloom’s videos with take-down notices. Among other things:

* The videos represented an extremely small slice of the Prince performance(s) from which they were made.

* Teibloom’s use was not commercial (that I’m aware of, at least), nor do I see how his videos could possibly supplant Prince’s products in the market, or undermine the commercial value of those products in any way.

* To the extent that the videos were shared and viewed by other Vine and Twitter users, it seems to me that the primary messages being communicated were “I like Prince’s music” and “Here I am at a Prince concert,” neither of which strike me as messages that Prince or his record label should object to.

The videos posted by Teibloom were a very different kettle of fish than, say, a video made by a fan that contains an entire song by Prince, or a video that represents an unauthorized ‘cover’ of a Prince song by another artist. While many consumers would object to targeting even those sorts of videos, I think the broader consumer market would accept it as a valid use of the rights-holder’s power under copyright law. In the case of these Vine videos, however, I think Prince and NPG make themselves look petty and small – vindictive, even.

Make no mistake, at DMCA Force we conduct our services according to the wishes of our clients; if a client wants us to send notices in response to noncommercial videos posted by consumers that make unauthorized use of the client’s copyrighted works, as long as doing so isn’t inconsistent with the provisions of the DMCA, we’re going to salute and do as we’re told, whatever our personal perspective on the videos in question might be.

At the end of the day, the right approach is the one you are comfortable with as a rights-holder. My point here is that sometimes there is likely to be very little actual benefit to issuing a take-down notice, and a fair amount of potential for doing so to backfire. When that’s the case, I just think it can’t hurt to take a little extra time in answering the “Should I, or shouldn’t I?” question that arises.