Is it Time to Repair the DMCA?

by Jonathan Bailey

Jumper CablesThese days, it seems that no one is happy with the DMCA notice and takedown system.

Hosts and search engines are processing more and more DMCA notices than ever. Google is now handling over one million per week on search alone (though, as I noticed, the reason for the rise is not related to increased copyright holder activity) and video sharing sites, like YouTube (also owned by Google) and UStream are so strained by DMCA notices that they have implemented content detection systems such as ContentID to stem the tide.

Copyright holders, on the other hand, are not particularly eager to send that many notices out and find it frustrating to deal with the same infringing content over and over again.

Finally, the huge numbers of notices being sent combined with the use of automated matching systems such as ContentID means that more mistakes are being made and that’s frustrating legitimate users that have their work blocked or taken down for no reason.

This has lead many, including the blog the Trichordist, to seek out ways to improve the DMCA.

So what can be done? As someone on both sides of the fence, dealing with false notices and filing legitimate ones, there are no easy answers, even if you just look at the issue of dealing with bad takedown notices.

That being said, there are a few things we can do but, in reality, the impact they can have is, at best, dubious.

The Intent of the DMCA

WHen it comes to the notice and takedown provisions of the DMCA, the law has two main functions:

  1. Provide legal protection for hosts and intermediaries against infringement committed by their customers.
  2. Provide a short, quick and inexpensive way to deal with infringements online.

In many regards, the law has been a smashing success. As burdened as they are by the DMCA, sites like YouTube and UStream couldn’t exist without it, the legal risk would be too great. The same goes for file storage services and nearly every site that hosts user-generated content, including Facebook and even Twitter.

Likewise, without the DMCA millions of smaller copyright holders would have no practical recourse against infringement. A lawsuit, the alternative, would be impractical for cost reasons alone.

However, as the Trichordist pointed out, there is no indication that legislators intended the law to be involved in millions and millions of notices. This growth was caused by many factors including more pages to report, better technology for finding infringements and more copyright holders turning to DMCA notices increasingly due to rising legal costs.

So is the number of notices filed going to keep climbing forever (burdening both rightsholders and hosts alike) or are there ways we can stem the tide some? Well, there might be a few steps that can help.

1. Improve Transparency

I’ve been a big supporter of DMCA transparency for a long time and was glad to see it mentioned in the Trichordist’s list.

Data is knowledge and knowledge is power. This is why I strongly support efforts such as what Google’s transparency report but they need to be more broad, including all sites and all hosts.

This information isn’t just useful for copyright holders wanting to file notices or bloggers like me that want to talk about the numbers, it is also useful for legislators and others that want to write good laws based on facts.

If we’re ever going to get better copyright policy, we need to know how the existing law is being used and where the trouble spots may lie. This can only happen with increased transparency.

2. Reward Sites that Are Proactive

The way the law is written today says that a site loses its safe harbor protection if it gains financial benefit from the infringement and “has the right and ability to control such activity.” Since so many sites earn revenue from infringements, often through ads, many are worried that taking extra steps against infringement could be seen as having the ability to control it and cost them their protection. This, in turn, prompts many to do nothing until a DMCA notice arrives.

Though those fears are misguided and are often used by sites operating in bad faith, the law needs to make it clear that a good faith effort to rid your site of infringement before notices are sent does not harm your safe harbor status. In fact, it might be wise to consider the proactive nature of the site a positive in the law, offering them additional legal security if they are.

If you reward and encourage sites to be proactive with copyright enforcement, more might.

3. Punish Sites That Do Less

In a related challenge noted in the Trichordist, under the current law, sites that do nothing until a DMCA notice is received are fairly well protected. However, the law was written so that sites that ignored obvious infringements could still be held liable.

But these takedowns, often called “red flag” takedowns have almost been completely removed from the law’s application by legal decisions.

Obviously the standard for a red flag takedown should be very high, but as it sits right now there is no practical application of that portion of the law, something else that encourages hosts to not be proactive and requires more DMCA notices to resolve what are often clear cases.

4. Get More Serious About Bad Takedown Notices

As I mentioned before, the law currently only punishes a false DMCA takedown notice if it was knowingly filed falsely. Negligence is not punished. Addressing that would help encourage copyright holders to make sure they were on target with their notices and not file overly-broad DMCA takedowns.

While this will increase the burden on copyright holders somewhat, it will greatly decrease the burden on legitimate users and hosts.

If the goal is to reduce the burden of the law, this is an important step.

5. Streamline the Sending and Processing of Notices

Finally, one of the major challenges with the DMCA, for filers and hosts alike, is that there is no standard for sending them.

DMCA notices have to be sent in a variety of formats, including email, form, fax and mailing. Likewise, if you’re the host, you will be receiving the notices in all of those formats and you have to be prepared to process them accordingly. This requires manpower, time and money.

Rather than messing around with all of the formats and dealing with all of the varied contact information, a standard, streamlined way to receive DMCA notices could save everyone time and money. Requiring all DMCA notices to be sent in the same way, such a consistent form or a template email, would streamline the sending of notices.

Combine that with requirements on the host as to how they should accept notices, possibly setting up an exchange system for sending notices via a central repository, filers would know just how to send a notice to a host and hosts would receive notices in a predictable, guaranteed-complete manner that would make processing easier.

Bottom Line

In the end, reducing the burden of the DMCA, while preserving its function, requires a combination of reducing DMCA notices (including reducing the amount that need to be sent and the amount of false ones sent) and reducing the burden of each individual notice.

However, sadly, even if all of these changes were implemented tomorrow, the total burden wouldn’t go down much or at least wouldn’t stay down for long.

The reason is that the growth of DMCA notices will keep pace with the growth of the Web. If the Web keep growing, so will infringement and so will the number of notices.

So, while legislative solutions can help, they’ll only be truly effective when combined with technology. However, that is going to require a cooperative effort between hosts and copyright holders. Unfortunately, though some sites, like YouTube, are willing to provide such cooperation and are large enough to warrant it from the viewpoint of major copyright holders, the majority of hosts aren’t in that position.

Because of that, unless the Web becomes drastically more centralizes, which would be unappealing for other reason, creating major change or improvements in the DMCA process is going to be a long, difficult road.

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