Latest Torrent News

A federal court in Massachusetts has ruled that copyright holders can issue online takedown notices based on a subjective belief of copyright infringement, even when that belief is unreasonable and self-serving. The case was brought by our client, Channel 781 News, after takedown notices temporarily shut down the citizen journalism group's YouTube channel. We think the court set the bar far too low for copyright takedowns, and we plan to appeal.

Channel 781 is a group of independent, volunteer journalists who report on local affairs in Waltham, Massachusetts. That includes posting short, newsworthy excerpts from recordings of city government meetings produced by Waltham Community Access Corporation (WCAC), the city's public access television station.

In September 2023, WCAC sent three copyright takedown notices to YouTube targeting fifteen of Channel 781's videos. YouTube removed the videos and, under its three-strikes policy, temporarily disabled Channel 781's entire account—just days before a local election.

Represented by EFF and Brown Rudnick LLP, Channel 781 sued WCAC under Section 512(f) of the Digital Millennium Copyright Act (DMCA), which provides a remedy when a copyright holder knowingly makes material misrepresentations in a takedown notice.

When Is a Copyright Holder Responsible for a Wrongful Takedown?

Fair use is the legal right to use copyrighted material without permission, when doing so serves purposes like criticism, commentary, or creating something new. Fair use is not copyright infringement, and courts have recognized that copyright holders must consider fair use before using the DMCA's powerful notice-and-takedown process.

In this case, Channel 781 argued that WCAC accused it of copyright infringement without making a good-faith assessment of whether its videos were fair use.

The evidence showed that WCAC's analysis was seriously deficient. The court noted that Chris Wangler, the WCAC employee who sent the notices, didn’t consider several facts relevant to fair use. For instance, Channel 781 used relatively small portions of WCAC's recordings, and the underlying recordings were factual public meetings, not a creative work. WCAC also gave little or no weight to whether Channel 781's use harmed any market for the recordings.

There’s also strong evidence that WCAC had motivations unrelated to copyright. WCAC objected to its footage being used to criticize local officials and advance political viewpoints. And WCAC sent the takedown notices during a local election, shortly after Channel 781 posted a campaign statement by Waltham's mayor that WCAC had mistakenly made available online.

Despite this evidence, the court concluded that WCAC had a subjective good-faith belief that Channel 781's videos were infringing. We disagree.

A Subjective Belief Should Not Be a Free Pass

Channel 781 argued that a copyright holder’s belief that material is infringing must be both genuinely held and objectively reasonable. WCAC argued that a subjective good-faith belief is good enough. Unfortunately, the court agreed with WCAC.

The court emphasized that Wangler had read up on fair use, watched a short YouTube video explaining the doctrine, and distinguished between videos he thought might qualify as fair use and those he believed did not. That was enough, the court concluded, to establish subjective good faith—even though Wangler’s analysis ignored important facts relevant to fair use. As the court put it, Section 512(f) does not require “a perfect or even reasonable fair use analysis.”

That is an alarmingly low bar for copyright holders seeking to remove someone else’s speech from the internet. A DMCA takedown can cause lawful speech to disappear almost immediately. As Channel 781 experienced, multiple notices can even result in an entire channel being disabled.

If a copyright holder can avoid liability despite a cursory, incomplete, and objectively unreasonable analysis that ignores important facts—even when there’s evidence that the copyright holder wanted to suppress critical speech—the obligation to consider fair use risks becoming little more than a box-checking exercise. That interpretation threatens to strip Section 512(f) of much of its force.

Even Under a Subjective Standard, WCAC Fell Short

Even accepting the court’s subjective standard, WCAC's cursory consideration of fair use should not have been enough. WCAC disregarded important fair use considerations, and the record included statements suggesting that it believed people generally needed permission to reuse its footage—an understanding at odds with fair use. There was also evidence that WCAC objected to Channel 781's political use of its footage, and had motivations for the takedowns unrelated to copyright.

Taken together, these facts raise serious questions about whether WCAC genuinely considered fair use, rather than using copyright as a rationale for removing material it did not like.

The Court Did Not Find That Channel 781's Videos Infringed

Importantly, the court's analysis recognized Channel 781’s strong fair use argument: the group used short excerpts from factual recordings of public government proceedings, selecting clips for their newsworthiness, and making them easier for the public and journalists to find, share, and discuss.

The opinion even states that WCAC's fair use analysis “may have been deficient.” But under the purely subjective standard it adopted, the court concluded that it could not reject WCAC's professed belief—even if the court itself “would have reached the opposite conclusion” on fair use.

We plan to appeal this decision to the First Circuit Court of Appeals. Copyright law should not allow a rightsholder to suppress critical reporting or political speech through the DMCA and escape accountability simply by claiming it believed the speech was infringing. Section 512(f) is supposed to provide protection against wrongful takedowns. We will keep fighting to ensure that safeguard actually protects people. 

The history of technology is rife with copyright panics.  In the 1980s, major rightsholders ran to Congress and the courts, claiming that videotape recorders (VTR) were “to the American film producer and the American public as the Boston strangler is to the woman home alone.” Then, the Supreme Court declined to embrace the hype, noting that the VTR was capable of all kinds of non-infringing uses, like time-shifting and cautioning courts to avoid rewriting copyright law in response to new technologies. We believe that courts now should be similarly wary about the hype surrounding AI.

Hollywood’s hyperbole has echoed that of composer John Phillip Sousa, who claimed in 1906 that the player piano and the gramophone would destroy music composition; portrait artists who feared the camera would replace the paintbrush. None of these things happened. Cameras, for example, sparked a resurgence of portraiture and, by making it possible for more people to create image, led to unexpected developments—like the rise of photojournalism.

New markets, new ideas, and new creators are actually what copyright is supposed to promote, not restrict. Using copyright to lock in existing gatekeepers and massive rightsholders’ profits helps neither the public nor individual artists.

Generative AI has sparked the latest wave of anxiety and with it a massive wave of litigation. In multiple cases around the U.S. and the world, rightsholders are asking courts to do precisely what the Supreme Court warned against: dramatically expand copyright protections based in substantial part on hyperbole and speculation. They should decline to do so.

Copyright owners claim that unless courts abandon 300-year-old copyright principles—and give rightsholders the power to control non-infringing works created by others—an imagined flood of AI-generated works will devastate creative markets. Under this “market dilution” theory, building generative AI tools cannot be fair use because those tools might be encourage the proliferation of competing works.

As EFF has explained to the courts in multiple amicus briefs in Concord Music Group, Inc. v. Anthropic PBC and In re Mosaic LLM Litigation, that’s not how copyright works. In fact, accepting this theory would undermine copyright’s constitutional purpose: promoting the creation of expressive works for the public’s benefit. Because copyright law is designed to encourage others to build freely on existing works, it punishes infringement, not competition. The “market dilution” theory would eviscerate not only the fair use doctrine, but also other limits on copyright that work specifically to prevent rightsholders from unfairly suppressing competition by claiming broad ownership over tropes, genres, styles, and so on. In other words, publishers would wield unchecked veto power over any expression that might conceivably compete with a work they own.

The result? Art doesn’t get created, ideas are never expressed, and we’re all worse off. Copyright shouldn’t be a tool to silence future creative competitors—whether or not they use AI in tehir work.

And the plaintiffs in these cases get at least two other things wrong. First, research shows that large generative AI models are unlikely to produce infringing works because the more data on which a model is trained, the less any individual training example matters to any particular output.

Second, AI tools aren’t necessarily displacing human creativity. To take a just a few examples:

• Boston-based artist Nettrice Gaskins uses AI to create Afro-futurist art, including a portrait of Octavia Butler displayed at the San Francisco Airport

• Indian artists Prateek Arora and Varun Gupta use generative AI to reimagine Western science fiction.

• Philadelphia-based artist Alex Smith uses generative AI to reimagine Afrofuturism

with queer, plus-sized Black superheroes.

• Ana Miljački, a professor of architecture at MIT, used generative AI to create a “non-liner documentary” film on Yugoslav World War II memorials and the values they embodied.

• A research-creation project used AI generated visual art to both amplify the voices of activists in the Iran Woman Life Freedom Movement and evaluate AI’s role in sociopolitical advocacy through art.

• AI company Bronze works with musicians like Disclosure and Jai Paul to create songs that never sound the same when played back twice, challenging audience conceptions of what music could be.

It is not the place of courts to say these people are not artists or that AI cannot augment human creativity in a positive way.

Given this range of experimentation, courts should be reluctant to decide in advance what tools do and do not foster “human creativity.” Like the VTR, large language models are general purpose tools, used by humans to do a broad variety of things far beyond generating lyrics. The effects of this particular technological innovation will doubtless be far-reaching, disruptive, and potentially harmful for some—but distorting copyright law is not the way to address those harms.