Washington DC
24 February 2017
Reporter: Barney Dixon
Rights holders and ISPs slam DMCA’s notice and takedown
Rights holders and ISPs have slated the US Digital Millennium Copyright Act’s (DMCA) notice and takedown system in comments to the Copyright Office.

The office’s request for additional comment closed on 21 February and comments have been made public.

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, which prompted the additional comment period.

Cox Communications, the Motion Picture of Association of America (MPAA) and the Association of American Publishers (AAP) were among the stakeholders to provide additional comments, with the notice and takedown system proving contentious.

Cox Communications, an ISP that was found last year to have failed in its obligations under Section 512, said that the current “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.”

“In particular, with respect to the notice-and-takedown regime, error rates and the potential for abuse by bad actors should also be evaluated.”

The MPAA said that the “ever-increasing number of takedown notices are not keeping pace with the massive growth of online piracy relevant to the notice and takedown system”.

“Despite the substantial number of takedown notices, 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.”

The AAP said there is a “cyclical ‘re-uploading’ problem, which compels copyright owners to send repeated notices to the same site to take down infringing copies of the same work over and over again”.

“This dynamic is burdensome for both copyright owners and ISPs of all sizes. Therefore, it is necessary and appropriate to implement a stay-down system which will accommodate the diversity of copyright owners and ISPs that currently populate the online ecosystem.”

The AAP pointed to Article 13 of the EU’s proposed Digital Single Market copyright directive as an example of what a notice-and-stay-down system could look like in legislation.

The AAP said: “[Article 13] 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.”

This could help to delineate a notice-and-stay-down system that accommodates the increasing diversity of copyright owners and ISPs, according to the AAP, while encouraging ISPs to cooperate with copyright owners without imposing a duty to monitor for infringement, focusing instead on the protection of works rather than the actions of specific users.

Article 13 was criticised earlier this month by European Parliament rapporteur Marc Joulaud, who said that it does not “define with enough provision” the scope of the services that will fall under its remit.

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