Senate hearings on reforming the US Digital Millennium Copyright Act of 1998 have ignited a debate around the level of responsibility online service providers should assume for copyright material posted on their platforms.
The DMCA protects online service providers from copyright infringement litigation so long as they have no knowledge of the infringement and they establish notice and takedown procedures for infringing content.
The act was intended to balance the interests of copyright owners and online service providers, but it has received stark criticism from both sides.
Many copyright owners say that filing takedown notices is burdensome, infringing content is relentless and that the act fails to make online service providers responsible enough for keeping such material off their websites.
Other critics of the act say that false copyright claims are rampant, and that reforms that place more responsibility on the shoulders of online service providers would make it impossible for smaller platforms to operate
Congress is planning to hold a series of hearings to address reform; the first of the series took place last Tuesday.
Notice and stay down
Copyright owners sometimes compare filing takedown notices to playing whack-a-mole, because as soon as one instance of infringing material is taken down, another will appear.
Sandra Aistars, the director of copyright research and policy at Antonin Scalia Law School’s Center for the Protection of IP, testified at the Senate hearing on February 11.
In her written statement, she said her clinic ran a study of the DMCA in 2016 where students enforced copyright claims for artists and small businesses using the DMCA’s notice and takedown procedure.
Aistars reported that there were a high number of infringements and that tracking them led students to malicious sites. Students also found that they received no response to some notices.
“Although the students had training in copyright law, and were coached on the DMCA process by experts, they still found the effort confusing and frustrating,” Aistars said.
During his testimony, Mark Schultz, director of the Center for IP Law & Technology at the University of Akron, said that a notice and stay down system could be an effective solution to combat infringement.
Allan Adler, general counsel with the Association of American Publishers (AAP), tells Managing IP that his organisation has argued for a notice and stay down procedure in the past.
“Notice and takedown procedures are a success in having work taken down, but do not succeed in protecting work from being uploaded and having to be taken down again in a repeated cycle that is burdensome to the copyright owner as well as to the internet service provider,” says Adler.
He adds that a notice and stay down procedure would allow a copyright owner to provide information to the service provider that would prevent infringing material from being re-uploaded to the platform.
False notices
But other sources say that strengthening the enforcement rights of copyright owners is the wrong move.
Van Lindberg, a Texas-based member at law firm Dykema, says that a notice and stay down system would need to be enforced algorithmically, and that this would create problems for service providers.
“Computers aren’t nearly as good as humans at identifying that material is identical and should be taken down. It would require a lot more robust analysis and filtering, and would be, at least at this point, commercially infeasible for a lot of providers,” says Lindberg.
He also argues that such a system would diminish the scope of fair use.
“A notice and stay down provision would have the result of over-flagging material that is allowed to be shared under our system, and would result in a significant reduction of the amount of content that is going to be allowed.”
Some providers argue that bad actors can already take advantage of the DMCA takedown procedure to issue notices that suppress speech.
In testimony filed in March 2014, Automattic, which runs blogging platforms WordPress and Tumblr, claimed to have received false notices from those looking to suppress speech.
The company said: “A physician demanded removal of newspaper excerpts posted to a blog critical of the physician by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
“A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.”
The DMCA does hold users liable for making false claims and counter notices.
A counter notice allows site users to fight back if they feel that content they uploaded is not infringing. The copyright owner has 10 to 14 business days to issue a legal proceeding after receiving a counter notice, or the content will remain online.
A Universal Music Group lawyer declined to comment directly for this article but sent Managing IP the company’s public comments from 2015. The comments indicated that some counter-notice filers lack an understanding of copyright law.
Universal reported that samplings of counter-notices it received included phrases like “Music is used for entertainment only, we do not claim the song to be ours and have given credit in the about section” and “I bought the song LEGAL on iTunes. I bought it with my own money, I didn’t steal it. I used the song that I bought”.
Competition law
During the Senate hearing, Harvard Law School professor Rebecca Tushnet said that competition law would be a better place to look for solutions to some of the issues raised during the hearing.
“The structural problems caused by the very big providers in this area are just different than problems caused elsewhere in the system,” she tells Managing IP.
“If we want the possibility that someday there might be somebody other than Facebook dominant in social media, or even that there might not be anyone dominant in social media, then we need solutions focused on competition policy and on what dominant entities can and can’t do.”
She says that while such a solution could require some of the more dominant parties to be more active in taking down infringing content, she does not have much sympathy for the major media companies that are frustrated by the prevalence of these online service providers.
“The content industries are highly concentrated too. One of the things they’re complaining about is that they have finally met someone with more market power than they have.”
In her view, a solution focused on competition would address big media and service provider concentration.
Working together
A Facebook spokesperson said that her company has taken steps to combat infringement.
“We are always working in partnership with rights holders on new ways to protect IP, and we believe these partnerships are key to successfully protecting IP online,” the spokesperson said.
Adler at AAP says there could be reform that expands copyright protections and still takes the needs of smaller providers into account.
“When the DMCA was first enacted, Congress anticipated that people would get together voluntarily and they would develop what were called standard technical measures.”
He says that these measures would be used to prevent the upload of infringing material. But he argues that there were no incentives for internet service providers to participate in this process.
Adler adds that if Congress reforms the bill, it could creative incentives for different stakeholders to help develop standard technical measures.
He says that the technical measures could be adjusted depending on the size of the service provider and the types of activities that are common on their site.
“This would allow people not to be straightjacketed into a one-size-fits-all technical measure,” he says.
Efforts to reform the DMCA will be thorny as Congress seeks to navigate the interests of copyright owners, online service providers and everyday internet users.
If conversations so far are anything to go on, it is unlikely that Congress will come to a solution that makes everyone happy.
