Filing a DMCA takedown notice to have Instagram remove a photo that has been used without permission is a frustrating process. Now, evidence is emerging that Instagram’s handling of these notices could put the social media giant in a tricky legal situation.
In late spring 2008, photographer Martin McNeil grabbed his press pass and jumped on a train to the Edinburgh International Film Festival Ray to photograph Ray Harryhausen, a Hollywood legend and pioneer of stop-motion animation effects. Having filed the shot with his agency, McNeil didn’t give the image much thought until Harryhausen passed away in 2013. The New York Times ran McNeil’s photo as the lead image in one of its reports looking back on Harryhausen’s life and how he had brought stunning effects to movies such as Jason and the Argonauts and Clash of the Titans.
Since then, fans of Harryhausen have periodically posted the image to Instagram, eagerly uploading a photo they do not own to a platform that has very few consequences for users breaching its Terms and Conditions. Many sharing the image would have little idea that uploading the photo infringes McNeil’s copyright and is against the law — specifically the Digital Millennium Copyright Act, better known as the DMCA. Over the years, McNeil has submitted countless takedown notices in line with this legislation in order to protect the value of his work.
A screengrab from Instagram One of many instances of McNeil's portrait of Ray Harryhausen uploaded illegally to the platform.
An Inadequate System Designed to Feel Fiddly
Content creators with even the slightest experience of Instagram will be familiar with the complex process that the platform has put in place to allow copyright holders to submit one of these notices. Click on the three dots, read multiple paragraphs of small text, find a Help Center, sift for a link so that you can “Learn” about reporting copyright violations (notably, not to make the report itself) before finally discovering a link to the right form, again buried in a page full of text. It’s tricky to the point that it puts off those lacking determination, but not so tricky that you could call Instagram out for deliberately trying to reduce the number of notices that it receives.
The form requires copyright holders to submit very specific information: name, address, phone number, and email address. It then asks you to provide a link to where the work has been uploaded without your permission and another link that demonstrates that you are the rights holder — e.g., the photograph or video as it appears in your portfolio, or posted by you to your account. It’s worth noting at this stage that this is the information you must submit as laid out under USC § 512 of the DMCA and that you are required to provide these details accurately under penalty of perjury. It’s also worth noting that Instagram’s system does not allow you to submit a notice without having filled out all of this information, complete with the required digital signature.
Screengrabs from law.cornell.edu of USC § 512 of the Digital Millennium Copyright Act.
Instagram Wants More — Illegally?
Last week, McNeil submitted a takedown notice to Instagram and received a prompt reply acknowledging receipt. A second email that followed close behind is where Instagram’s legal position may be problematic. “It looks like you’re attempting to report content that you believe infringes your copyright,” the email read. “To review your report further, we’ll need you to provide the following: An explanation of how you believe the reported content is infringing your copyright. Once we’ve received this additional information, we’ll continue to look into your report.”
Hi Shona. Are you aware that you may be forfeiting Instagram's right to safe harbor?
To the typical Instagram user, this might seem like a reasonable request. You can imagine that Instagram wants to be sure that takedown notices are not spurious or frivolous and that the person claiming to be the copyright holder is genuine. However, this is not what the legislation requires; by contrast, with the information that has been submitted, Instagram is now obliged to remove or disable access to the content without any delay — or “expeditiously” as is written in USC § 512. The platform is not supposed to send out another email asking for more information, as under U.S. law, the takedown notice is complete and Instagram has a statutory obligation to take action. Failure to do so has implications.
When a Company Does Something 97% Of the Time, It’s Probably Policy
On August 26 and 27, McNeil filed 34 takedown notices for this same photograph of Harryhausen being used by multiple Instagram accounts without permission. One instance was removed immediately; for the remaining 33, McNeil received 33 near-identical emails asking him to explain how he believed his copyright was being infringed. A few of the emails made additional requests for information that had already been supplied, such as the location of the infringing work and identification of the work in the copyright holder’s portfolio.
Instagram asking for more information appears to be company policy, a default response sent out to the overwhelming majority of notices that it receives. As McNeil explains, by receiving the notice, Instagram is obliged to act but may instead be “clearly, deliberately, obfuscating the process.” By not acting immediately, Instagram could be willfully ignoring red-flag knowledge and taking on vicarious liability — i.e., it’s been made aware of the breach of copyright and by not removing the content, it may now be a party to the offense.
Responding to their 33 emails, McNeil has informed Instagram of the situation. “I don’t have to explain myself to these companies,” he told me, “and neither should anyone else. I just want them to fulfill their legal obligations.”
It’s Time to Overhaul the DMCA
McNeil’s ongoing saga is part of a broader problem: the DMCA is no longer fit for purpose. It was drafted by Congress in the 90s in response to the sudden arrival of the internet, and while it was intended to protect copyright holders, it also aimed to give a degree of freedom to companies such as AOL and CompuServe, allowing them to host content without being entirely liable for it. If providers were wholly responsible for everything that appeared on their servers, lawsuits would not simply have stifled growth but killed it off entirely. The internet as we know it today would not exist.
I spoke to Neil Turkewitz, former Vice Executive President of the Recording Industry Association of America and now an advocate for accountability in the digital economy. He directed me to a few of his articles that discuss where the DMCA currently falls short. The legislation was designed before social media existed, and it’s probably no great surprise to learn that companies have since found ways to exploit the DMCA while pulling in billions of dollars in revenue. As I’ve noted previously, if you’ve ever wondered why Instagram is heavily laden with feature accounts that upload other people’s work, it’s probably because this generates huge amounts of money. It appears that the inadequacies of the DMCA have helped to let this happen.
As Turkewitz notes, those drafting the DMCA assumed that over time, technologies designed by the digital platforms themselves would emerge to prevent copyright infringements. Unlike the system today, takedown notices were originally intended to catch those instances of copyright infringement that slipped through any resulting gaps. Turkewitz explains that these technologies never appeared “because platforms had no direct financial interest in developing such robust systems, and because the DMCA provided immunity regardless of whether they were developed and used or not.”
Tweeting in response to McNeil's thread, Turkewitz is keen to stress the huge imbalance between creators and platforms. “Please bear in mind the disconnect in scale between infringement (viral) & response (singular),” he asks. “Dreams — & creative careers —drown in that gulf.”
If There’s No Financial Incentive, We Need a Legal Obligation
As it stands, Instagram and Facebook have no interest in implementing systems that would counter the huge volume of infringing content that is uploaded to its networks every day. The responsibility to identify it lies solely with the copyright holder which suits the platform: they could make submitting a notice slightly complicated and then find additional means of obfuscating the process even further. In terms of resources, it’s highly efficient and is the bare minimum required by law.
For Instagram, it’s not simply that it doesn’t want to unnecessarily allocate resources into tackling a problem it’s not legally obliged to tackle; rather, preventing copyright breaches would have a significant impact on the platform. As discussed in a previous article, Instagram was never supposed to be Tumblr, and its Terms and Conditions should prevent this — in theory. However, to a degree, this is exactly what Instagram has become, as the Explore page and the countless feature accounts that Instagram deliberately promotes will testify. Setting up an account and endlessly posting other people’s content has next to no consequences, recycles the platform’s most appealing content, and generates vast sums in ad revenue.
McNeil wants to see the asymmetry of power brought about by the DMCA rebalanced. Artists create the content that makes these platforms money, and yet, the resources to ensure control of their work are massively outweighed by those available to the digital platforms seeking to exploit it. “The rapid acceleration of unauthorized or unlicensed uses of their works, by way of these platforms, can significantly diminish or wholly eliminate these people's ability to earn income from their creations,“ McNeil told me. “This is a bad enough situation to find oneself in before these platforms start slow-walking or outright stalling requests to have your work removed.”
The DMCA needs to be addressed. Facebook and Instagram may tell you that it doesn’t and will likely resist any changes that make it obliged to prevent copyright-breaching content from being uploaded. As McNeil mentioned to me, Google threatened to pull out of Australia and France when those countries began to make noises about changing how news information was being syndicated; in the end, the threats came to nothing. These companies will spend vast sums of money in their efforts to ensure that the DMCA is not overhauled or rewritten to give them greater liability for illegal content, and if you’re a creator, it might be worth paying close attention to the review of the legislation that is taking place right now.
Instagram and Facebook have made billions from our content; it’s time that the system was redesigned to prevent them from taking advantage of the gaps in the law, and put structures in place that will rebalance social media in favor of the people who create content rather than Facebook’s share price.
Party?
If the next time you submit a takedown notice to Instagram you receive a response from Shona, Jason, Josh, Elle, Kevin, Alessia, or any one of the countless friendly names on the Instagram Team, consider this reply:
I have provided all of the information required from me under USC § 512. Under this statute, Instagram is required to remove or disable access to the content expeditiously. Further, I am not required to provide you with my beliefs or any additional information, and your continued failure or delay in acting on my notice may mean that your company forfeits its right to safe harbor, thus assuming vicarious liability by way of secondary infringement, and becomes a party to the infringement(s) of my rights as detailed in my original communication.
To follow McNeil's back and forth with Instagram, you can follow him on Twitter where he continues to update this thread. Quotes may have been edited for clarity and flow.
