Copyright Gets In The Way Of Chef Andres' 'Recipes For The People'; Because The DMCA Takedown System Is Still Broken
from the copyright-not-for-the-people dept
On Tuesday evening, famed chef (and all around wonderful human being) José Andrés tweeted about how Twitter had taken down his videos “without really a detailed explanation of why or whom.”
Amazing that @Twitter Will suspend me and take out content #chefsforthepeople recipes without really a detailed explanation of why or whom…..I’m guilty before a judge will Rule….. pic.twitter.com/ydcgh5Xi5n
— José Andrés (@chefjoseandres) June 17, 2020
As he notes, “I’m guilty before a judge will rule…” Of course, while his anger was pointed at Twitter, the real problem is not Twitter, but rather the DMCA’s Section 512, whose entire design is that you are guilty before any judge will rule. This is why we’ve been pointing out that the notice-and-takedown process of the DMCA seems to raise serious 1st Amendment issues. It’s very much guilty until proven innocent, by design, with censorship built in (and yes, I mean censorship because it’s compelled by the state).
What’s really stunning, of course, is that this is happening at the same time when the Copyright Office is claiming that we should make this problem much, much worse by giving people and companies more power to censor and force content down prior to any judicial review. And, of course, you have willing elected officials trying to make this happen.
The details of the Chef Andrés’ story are instructive of just how problematic the notice-and-takedown system is, and has been. He’s been creating a bunch of amazing videos under the #RecipesForThePeople hashtag, where he and his daughters cook up simple meals that anyone can prepare at home during lockdown. You should watch them. They’re a joy to watch. In each one, beyond cooking a relatively simple meal, he does it to music (often dancing and/or singing along while cooking). As he explains, the music all comes from musicians he knows — such as Lin Manuel Miranda — who gave him permission to do so:
TODAY for #Hamilton inspired #RecipesForThePeople we are making a dish in honor of my mom & dad…My mom would make Sugar Omelettes for dessert when I was young. They were both nurses… so this goes out to all the nurses out there! We @WCKitchen love you! ????????⚕️????⚕️???? pic.twitter.com/uDMcp7LLEi
— José Andrés (@chefjoseandres) April 5, 2020
Today we’re cooking #RecipesForThePeople in 3&1/2 minutes! This is angelhair pasta & tomato sauce (a SPANISH invention..! But we love Italy ????????????????????????) to the tune of #Hamilton You’ll Be Back…because WE’LL be back, we can get through ANYthing if we keep singing&cooking @WCKitchen pic.twitter.com/H1kokwzb7O
— José Andrés (@chefjoseandres) March 31, 2020
For today’s #RecipesForThePeople …My daughters & me, we are cooking for you Fried Rice! And of course we’re listening to @lin_manuel Hamilton – during these times we will not throw away our shots… or our leftover ????????????!! @WCKitchen #ChefsForAmerica pic.twitter.com/JADu5Kve8c
— José Andrés (@chefjoseandres) March 29, 2020
Tonight we are dedicating #RecipesForThePeople @WCKitchen to immigrants, especially the undocumented of America. Even now they are still working on farms & making sure we are fed…So we sing & cook chicken&cauliflower to #Hamilton Yorktown…Immigrants, we get the job DONE!! pic.twitter.com/H5A3o5lWWM
— José Andrés (@chefjoseandres) April 3, 2020
There are a bunch more, but they’re really a joy to watch. And while Lin Manuel Miranda gave his permission, that doesn’t much matter in reality, because the entire DMCA 512 notice-and-takedown system is based on the idea that you just keep on sending takedowns. And even if permission has been granted, why that’s just too difficult to continue to track. So the takedowns still get sent, and Twitter is pressured into taking it down, or it could face massive liability for copyright infringement’s statutory damages.
While this story might just seem like a “mistake” it’s actually illustrative for a variety of important debates we’re having — both the debate about making the DMCA even worse and the Section 230 debates. We pointed out that the Copyright Office (and people in Congress talking about 512 reform) have so far mostly ignored false takedown notices. But they happen every damn day. We hear about ones like this one, because it happened to someone who is pretty famous and so it makes news. But if it happened to someone less well known — they might just be out of luck.
And it also impacts the Section 230 debates, because so much of the reform ideas put forth would effectively turn other issues into a similar DMCA style “notice-and-takedown.” Indeed, that’s part of the DOJ’s proposal to create a “knowledge” standard that would require sites to remove content. Under such a regime, again, you have a system like this one, in which once a platform is notified, assuming it cannot tell whether or not the content is legit or licensed or whatnot, it has every incentive to just pull it down — “before a judge will rule…”