Booed, but copyrighted - when facts get taken down

The Digital Millennium Copyright Act (DMCA) requires platforms to take down or disable access to user posts when they receive a compliant copyright notice, in order to keep their legal “safe harbor.” This can apply even when a video depicts a real-world event like the video of audience reaction to Vance at the Olympics - while no one owns the fact that booing happened, the broadcast video of that booing can be protected by copyright and can be the subject of a DMCA takedown. 

What happened? 

A widely shared clip of booing directed at Vice President JD Vance during the Milan Winter Olympics was reportedly taken down on X, replaced with a notice that the the media was "disabled in response to a report by the copyright owner.”

What is the DMCA?

Congress passed the DMCA in 1998. Among other things, it created “safe harbors” that limit when online platforms (like X) can be held liable for user-posted content-so long as they follow specific rules, including removing material after receiving a qualifying copyright notice.

How notice-and-takedown works. For user posts, a platform keeps its safe harbor if it does not know about infringement and, once it learns of a problem (including by receiving a compliant notice), it acts quickly to remove or disable access to the content. The platform must also designate a DMCA agent with the Copyright Office to receive notices. Similar rules apply to links that point to infringing material.

What a takedown notice must include. An effective notice must substantially include: (1) the complainant’s signature; (2) identification of the copyrighted work; (3) identification of the specific material to be removed and how to find it; (4) the complainant’s contact information; (5) a good-faith statement that the use is unauthorized; and (6) a statement that the notice is accurate and made under penalty of perjury. A notice that does not substantially comply generally cannot be used to put the platform on notice, with a limited partial-compliance rule that can prompt platform follow-up.

How a counter-notice works (and when the content comes back up). If a post is taken down, the platform must notify the user. The user can send a counter-notice. The platform then forwards it to the complainant and restores the content in 10-14 business days unless the complainant tells the platform it has filed a court case. A counter-notice must include the user’s signature; what was removed and where it was; a statement under penalty of perjury that the removal was a mistake or misidentification; and a consent to court jurisdiction and service of process. The statute also shields platforms for good-faith removals and creates liability for knowing misrepresentations.

Misrepresentations have consequences. Anyone who knowingly and materially misrepresents that content is infringing-or that it was removed by mistake-can be liable for damages, including attorneys’ fees, if others relied on that misrepresentation.

Event-booing is a fact. 

The article gets the instinct partly right but mixes two ideas. No one owns the fact of booing. But someone can own the specific video footage of that booing, and the DMCA lets that rightsholder ask platforms to remove unauthorized copies. A platform’s takedown message reflects its obligation to preserve safe harbor; it is not a ruling on whether a user’s posting would ultimately be lawful (for example, under fair use). If a valid notice was sent, the uploader could respond with a counter-notice, which would lead to restoration in 10-14 business days unless the rightsholder files a court action. Knowingly false notices or counter-notices can lead to damages.