Recently, there have been concerns about accounts being terminated on Tumblr if a user has made audio posts that allegedly infringe on existing copyright. The OTW is concerned by reports of this practice being applied to users who have made posts which fall under Fair Use. Read on for an explanation of the situation and instructions on what you can do if you feel your account has been terminated in error.
What's Going On?
There's a lot of information going around about this situation. A FAQ post has been circulating which attempts to explain the situation, along with a script to help users locate audio posts they've made and a description of how one user had their account restored after termination. It's difficult to be certain about a lot of the details, though. Tumblr's Terms of Service state that they "may immediately terminate or suspend Accounts that have been flagged for repeat copyright infringement," and their policy for the past few years has reportedly been to terminate accounts that accrue 3 DMCA takedowns within 18 months, though they are not legally required to operate this way.
However, it appears that accounts are being terminated without investigating the possibility that posts fall under Fair Use, even though this has been a legal requirement in the US since 2008. Fair Use exemptions ensure that the use of media for the purpose of commentary, criticism, education, or transformative works, such as fanworks, is considered legitimate and non-infringing. Reportedly, on Tumblr, there have been no Digital Millennium Copyright Act (DMCA) takedown notices issued prior to the termination of many accounts, and thus users have not been given an opportunity to claim the legitimacy of their posts under Fair Use legislation prior to having their accounts terminated. However, we have also heard reports that some users have been able to successfully argue against one or two of the strikes and have their blogs reactivated.
Restoring Wrongfully Terminated Accounts
So what can you do if you feel your account has been terminated in error? Tumblr outlines in section 20 of its Terms of Service the procedure to follow for submitting a DMCA counter-notification, which is also the procedure that should be used to contest termination for copyright infringement without the receipt of a takedown notification. The procedure is as follows:
If you believe you are the wrongful subject of a DMCA notification, you may file a counter-notification with Tumblr by providing the following information to the Designated Agent at the address below:
- The specific URLs of material that Tumblr has removed or to which Tumblr has disabled access.
- Your name, address, telephone number, and email address.
- A statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or the federal district courts located in New York County, New York if your address is outside of the United States), and that you will accept service of process from the person who provided the original DMCA notification or an agent of such person.
- The following statement: "I swear, under penalty of perjury, that I have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled."
- Your signature.
35 East 21st St, 10th Floor
New York, NY 10010
Attn: Copyright Agent
Fax: +1 (646) 513-4321
Copyright notice form: http://www.tumblr.com/dmca
Upon receipt of a valid counter-notification, Tumblr will forward it to Notifying Party who submitted the original DMCA notification. The original Notifying Party (or the copyright holder he or she represents) will then have ten (10) days to notify us that he or she has filed legal action relating to the allegedly infringing material. If Tumblr does not receive any such notification within ten (10) days, we may restore the material to the Services.
Further to this, we recommend reading the Electronic Frontier Foundation's report Who's Got Your Back?, which includes a lot of information about widely-used online companies’ “objectively verifiable, public policy statements” regarding copyright DMCA notices and counter-notice procedures.
This information was adapted from a post written by OTW Legal staffer Heidi Tandy on the fyeahcopyright tumblr. Permission was given but was not actually necessary as this write-up is a Fair Use of that content.