By Henry Kronk February 20, 2018
Earlier this month, YouTuber Chris Hawkes posted a video proving that the MOOC(ish) provider Udemy had used one of his instructional videos without his permission. Hawkes makes videos relating broadly to the tech industry. A Udemy ‘professor’ had incorporated one of his videos on Python into his or her class.
In his video, Hawkes voices his anger, and issues a rallying cry for YouTubers to double check on the use of their content. As Hawkes points out, Udemy has done this before.
In 2015, a cybersecurity expert Troy Hunt discovered that a course that he developed for Pluralsight on ethical hacking was being sold on Udemy without permission or credit. Many others soon discovered their educational content on Udemy, and the calls of outrage pushed the company to respond.
In a blog post, which has since been removed, former Udemy CEO Dennis Yang said his company was protected under the Digital Millennium Copyright Act (DMCA) of 1998. The law protects internet and online service providers (ISPs/OSPs) from the copyright violations committed without their knowledge by their users.
The way Udemy works is that teachers develop their own content and then upload it to the site. They receive a cut of what each student pays for the course (unless they make it available for free). In other words, Udemy’s teachers are claimed as ‘users’ by the company. Udemy is only obligated to take action when others alert them to copyright infringement. They’re also supposed to take action to prevent it from happening again …
It’s not just YouTubers who are discontent with the current DMCA safe harbor for ISPs/OSPs. Artists, musicians, photographers, animators, writers … pretty much anyone who creates copyrighted content has a good reason to dislike the policy. The burden falls on them to police their own work throughout the entire internet. Many creators simply don’t have the time or resources to ensure their material doesn’t make its way onto any number of platforms without their consent.
The DMCA was written in the dial-up era, long before sites like Facebook, Youtube, Twitter, Instagram, Tumblr, or Pinterest existed. Even Napster and Myspace weren’t on the scene when it was passed into law. Legislators simply did not take into account the sheer volume of content that would be uploaded on a daily basis.
After the lawsuit that ultimately shut Napster down concluded, scholar and activist Laurence Lessig wrote the following: “When Napster told the district court that it had developed a technology to block the transfer of 99.4 percent of identified infringing material, the district court told counsel for Napster 99.4 percent was not good enough. Napster had to push the infringements ‘down to zero.’”
Udemy has by no means been held to the same standards, even though their case could be seen to be even more egregious: they can profit directly off the sale of copyrighted material.
Many believe that it’s high time for some DMCA reform. And some of those people work in the U.S. Copyright Office. After pressure from a gaggle of celebrity musicians in 2015, the USCO agreed to enter into a period of review for the safe harbor aspects of the DMCA. The review has gone through multiple series of public comment periods and roundtable discussions. The last action taken on the review was yet another extension of the comment period in January of 2017.
It’s unclear why the comment period continues to be extended. Maybe the DMCA safe harbor is just a divisive issue and policymakers want to keep kicking it down the line.
It might also have something to do with the current administration. Right now, the head of the USCO is Karyn Temple, who serves as the Acting Register of Copyrights and Director of the USCO. (Remember how the current president isn’t good at filling vacant positions?) It’s doubtful that an acting director would make any major plays, especially one that would have such a widespread effect.
The issue of copyrighted educational materials (especially with professors offering their courses over more reputable platforms like edX and Coursera) is thorny enough.
When Napster was slapped with a harsh judgment, and they developed a method to catch 99.4% of their internal copyright violations, the justices still weren’t having it. Udemy hasn’t taken any kind of real action to address the copyright infringements. It relies only on their users reporting copyright infringements.
Under their terms and policies, the company states, “Our marketplace model means we do not review or edit the courses for legal issues, and we are not in a position to determine the legality of course content. However, it is important to us that instructors posting courses on Udemy respect the intellectual property of others. When instructors post courses on our marketplace, they make the promise that they have the necessary authorization or rights to use all the content contained in their courses.”
“Infringing activity is not tolerated on or through our platform.”
Educators and learners couldn’t be faulted for placing more than a little doubt in that last sentence.
The thing is, many more blatant perpetrators exist. Any popular platform to which users can upload content inevitably displays large quantities of copyrighted work.
In 2007, Viacom Inc. sued YouTube, and its parent company Google, for hosting roughly 160,000 video clips of their copyrighted material. They sought $1 billion in damages. U.S. District Court Judge Louis Stanton granted a summary ruling in favor of YouTube, saying they were protected in the safe harbor. The 2nd Circuit U.S. Court of Appeals later vacated that ruling saying that the case at least deserved a trial. The case was sent back to Judge Stanton, who again issued a summary ruling in favor of YouTube.
DMCA safe harbors are nothing short of murky legal territory, and it seems clear that they are ripe for reform. That reform, however, won’t come easily, and if it does, it will seriously change the way some of the biggest companies in the world do business.