While there are countless examples of DMCA abuse, sometimes a story stands out. Last week, Samsung sent a series of takedown notices aimed at videos showing a GTA V mod in action. The modification replaced an in-game weapon with an exploding Samsung phone. Whether you think these videos are hilarious or in bad taste (or both), they are a parody inspired by real-life stories of Galaxy Note 7s catching fire. Samsung may not enjoy this commentary, but that does not excuse its abuse of the DMCA.
In our view, Samsung does not have a viable copyright claim against these YouTube videos. Even if Samsung does own a related copyright—perhaps in the design of its logo or in the phone’s screen image—it cannot use that copyright to control all depictions of its phones. Reviews and news coverage need to show images of the phone. And even snarky commentary, like footage of the GTA V mod, is fair use.
If it doesn’t have a viable copyright claim, why did Samsung send DMCA takedown notices? We asked Samsung’s counsel (the notices were sent on Samsung’s behalf by the 900-lawyer firm Paul Hastings LLP) but received no response. It appears that Samsung took the easy path to removing content it did not like by making a copyright claim where none existed. DMCA takedown notices are, by far, the quickest and easiest way to get speech removed from the Internet. That makes them irresistible for companies, individuals, and even governments eager to censor online speech.
DMCA abuse flourishes because, in practice, companies that send improper notices don’t face sufficiently serious consequences. This issue is currently before the Supreme Court in Lenz v. Universal. In that case, EFF represents Stephanie Lenz who posted a short video to YouTube showing her toddler son dancing to a Prince song. After Universal sent a takedown notice, Lenz sued arguing that the video was clearly fair use and the notice was sent in bad faith. Last year, the Ninth Circuit ruled that copyright holders must consider fair use before sending a takedown notice. Unfortunately, the appeals court also set a very high bar for enforcing that standard. It held that senders of false infringement notices could be excused so long as they subjectively believed that the material was infringing, no matter how unreasonable that belief. Lenz has asked the Supreme Court to review that aspect of the ruling.
In the next week or two, the Supreme Court will decide whether or not it will hear Lenz’s appeal. We hope that it takes the case and provides users with the protection that Congress intended. In the meantime, we can only hope that DMCA abuse like Samsung’s backfires.