A lean, mean takedown machine

Takedown is a basic tenet of the DMCA, but it isn’t running as smoothly as originally envisioned, as responses to a consultation on the issue reveal

The US Copyright Office’s extended period for comment on the Digital Millennium Copyright Act (DMCA) has officially closed. With its closure, the true extent of criticism has been made public, with many commentators taking particular umbrage at the DMCA’s notice-and-takedown system.

The DMCA’s Section 512 safe harbour provisions were enacted to protect online service providers from onerous copyright infringement claims. The Copyright Office has been reviewing their effectiveness since the beginning of 2016. It has solicited feedback from industry and held multiple roundtables on the subject.

Among Section 512’s critics is Cox Communications, an ISP that was found last year to have failed in its safe harbour obligations.

Cox said: “Notice and takedown regimes may have a profound chilling effect on free expression.”

“The costs of compliance with the law—especially where judicial interpretations of the law are inconsistent, unclear, or uncertain—may discourage or prevent new businesses from entering the market, and hinder innovation.”

The Motion Picture Association of America (MPAA) added its own thoughts on the system, arguing that, while the notice-and-takedown system works in some ways: “The system has not been effective at achieving its stated goal: incentivising a system of shared responsibility that meaningfully reduces the quantity of online infringement.”

Other trade groups, such as the Association of American Publishers (AAP), argued that there is a cyclical “re-uploading” problem, which forces copyright owners to send multiple notices to the same infringing site to take down copies of the same work over and over again.

“The dynamic is burdensome for both copyright owners and ISPs of all sizes,” the AAP said, and went on to describe the implementation of a “notice-and-stay-down system, which will accommodate the diversity of copyright owners and ISPs that currently populate the online ecosystem”.

The AAP pointed to the European Parliament’s Directive on Copyright in the Digital Single Market, specifically Article 13 of the proposal, which: “Creates an obligation on information society service providers storing and giving access to large amounts of works and other subject-matter uploaded by their users to take appropriate and proportionate measures to ensure the functioning of agreements concluded with rights holders and to prevent the availability on their services of content identified by rights holders in cooperation with the service providers.”

“The approach taken in the European copyright proposal could help to delineate a US notice-and-stay-down system that (i) accommodates the existing—and likely increasing—diversity of copyright owners and ISPs, (ii) encourages ISPs to cooperate with copyright owners, (iii) does not impose a duty to monitor for infringement inconsistent with Section 512 of the DMCA, and (iv) focuses on the protection of works rather than on the actions of specific users.”

Get down and stay down

Dale Cendali, partner at Kirkland & Ellis, describes ‘notice-and-stay-down’ as an alternative system to stop re-uploading issues.

While the notice-and-takedown system has achieved its objective of providing safe harbour protection for online service providers, rights holders argue that it has also accidentally created a “whack-a-mole” problem, Cendali says.

Cendali explains: “Whack-A-Mole refers to an old arcade game where artificial moles pop up at random from various holes in the machine. The object of the game is for the player to force the moles back into their holes with the mallet, and each time a mole is hit, another one pops up. Commentators analogise this to the current notice-and-takedown system because the rights holder must undertake great effort and expense to continuously monitor sites and send takedown notices, only to find the same work is posted thereafter.”

Cendali says: “From the rights holder’s perspective, that’s the big criticism of the notice-and-takedown system.”

Some commentators have advocated imposing a “monitoring duty that would require [online service providers] to use the ‘best technology available’ to monitor and filter infringing materials”.

YouTube’s Content ID programme, which allows rights holders to remove infringing content from the video streaming platform or monetise it, is one such technology that has attempted to achieve content protection according to the DMCA provisions.

Many rights holders believe this is a step in the right direction, says Cendali. “Many rights holders believe this as an example of how technology can be used to make sure that infringing content isn’t posted.”

But Content ID has faced criticism from content creators on its platform, who argue that it favours rights holders over its creators. While YouTube owner Google defended the Content ID programme in its comments to the Copyright Office, it acknowledged that the system “is not a tool that is appropriate for everyone”.

Google added: “Tools this powerful and complex can have significant consequences when misapplied. For example, a local news service that routinely claimed its news broadcasts forgot to exclude from its claim embedded NASA footage relating to the Mars rover landing. This resulted in mistaken claims on many other stories using the same, public-domain footage, and even a Content ID claim barring the video from appearing on NASA’s own site.”

It’s still unclear how much weight will be given to the comments in Congress. Cendali says it’s too early to tell if Congress is even ready to amend Section 512, but pressure from lobbyists and copyright holders could encourage legislators to consider the issue. Similarly, the Copyright Office will submit a report to Congress, and a draft bill is on the cards, but it remains to be seen what action, if any, the Copyright Office will take. IPPro

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