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YouTube, the Daytona Crash and Abuse of Copyright

By Sherwin Siy

If you haven't heard by now, a 10-car crash at Saturday's NASCAR race injured at least 28 spectators with flying debris sending 14 to a nearby hospital. By now, you've likely also heard that one spectator's recording of the accident and its aftermath was quickly pulled (and later reinstated) from YouTube after a copyright claim from NASCAR.

There is no copyright justification for taking down the video. The copyright in the video itself belongs to the spectator who took it, not NASCAR, the Daytona Speedway, YouTube, or anyone else. In fact, NASCAR's justification for the initial takedown was on the grounds of respect for the victims:

The fan video of the wreck on the final lap of today's NASCAR Nationwide Series race was blocked on YouTube out of respect for those injured in today's accident. Information on the status of those fans was unclear and the decision was made to err on the side of caution with this very serious incident.-Steve Phelps, NASCAR Senior Vice President and Chief Marketing Officer

We can discuss the ethics of posting a video of a terrible accident later (and I fully intend to; see below), but it's clear that this is not a copyright question. Hence the statement from YouTube when the video was restored after tech, sports, and mainstream press all picked up on the takedown:

"Our partners and users do not have the right to take down videos from YouTube unless they contain content which is copyright infringing, which is why we have reinstated the videos."

Some people are being cynical about why NASCAR would take the video down; some say it's overzealous brand enforcement, or an attempt to monopolize the market for even short clips of their races. Others say it's an attempt to cover up the full effects of the accident, to evade responsibility or liability.

Other videos of other races have remained up, though, so it seems likely that either NASCAR's official reason (respect for victims and their families) or the most cynical reason (covering up liability) are the true reason.

So why would they send a copyright takedown notice to YouTube? Because that was the most likely thing that would get YouTube to take something down, and fast. That's likely true of any other big service provider. A copyright takedown notice will get a near-immediate response, whereas other reasons-even ones as good as the dignity of an injured person-have no formal process for them.

Why is that? After all, it's easy to sympathize with the impulse to take down graphic images of an accident (though as far as I could tell, the taken-down video did not seem particularly graphic, or to identifiably show any victims). Why should someone learn via a YouTube video, and not some other way, that a family member has been hurt? But how does this balance against the free speech rights of the videographer? He has personal liberties at stake, in addition to the public good of sharing newsworthy information with the world. One perspective on having a robust right to free speech is that it will require a thick skin.

But that even presupposes that a thin-skinned person would want to be shielded from the news-and that the law can claim to know the thickness of a victim's family's skin. For my part, if someone I loved were in an accident, I'd want to know as soon as possible, regardless of the mechanism. I wouldn't want someone dithering over whether my getting the news via a viral video, a phone call, a text, or a doorstep visit with uniform and flag would most appeal to my sense of dignity. My personal (perhaps thin-skinned) preference in the case of a big public accident would be for the fastest disclosure possible. Of course, that's just me. Given the wide range of preferences for people at large, it's not the place of the law or the government to try and make that decision for them.

And it's most certainly not the place of NASCAR or YouTube. Which is why we don't give people or companies the right to stifle information based on grounds like those. In fact, even the laws we do have to stop certain types of speech (defamation, fraud, and so on) don't have mechanisms in place that result in near-instantaneous takedowns the way copyright law does.

All of those areas of law require a balance between the interests of enforcing the law and protecting free speech, as well as preventing abuse of the law. It' soften a long and fact-intensive analysis to determine when someone has been libeled versus just insulted or mocked; in the meantime, we don't give people the authority to muzzle someone before they have a day in court.

The ease of use of the copyright notice-and-takedown process gives people an easy hammer with which to, at least temporarily, stop speech. Whether their motives are pure or not, it means that we have in place a mechanism for the purposes of copyright law that we have refused on principle to put in place for equally (or more) important goals, such as protecting people from swindlers and malicious liars. And as they say, when all you have is a hammer, everything looks like a nail. And so copyright gets used again and again to upset the default balance that this country has in favor of including more speech.

So of all the legal tools we have to stop someone from saying something, copyright has somehow become the most powerful, in terms of getting things taken off the Internet. Through a combination of exorbitant potential penalties for violation, a huge volume of complaints, and a mechanism that requires compliance in order to avoid those penalties, we have a system that is easily abused. Maybe this means we now have an overbuilt copyright enforcement system.

In this particular instance, YouTube and/or NASCAR did right thing in getting video back up, but this was an easy call, and it would have been hugely embarrassing if they didn't. After all, the crash is front-page news, and the takedown drew even more attention to it. But what happens when the takedown is about something that has less attention already directed towards it? What if the takedown had been for an accident at a tiny, obscure event? Or what if a company wanted to take down a video of its employees lying, or just being rude to customers? When a company like Google is getting 2.5 million takedown requests (and numerous protests against those takedowns) per week, it's unlikely that those small abuses will ever be resolved quickly.

This article was originally published by Public Knowledge and is reprinted here under a Creative Commons license.

Sherwin Siy
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