For the first time the U.S. Copyright Office seems to be opening up to changing the DMCA. Ask any copyright holder, website provider or user and they’ll all say the same thing: It’s about time.
The office is specifically looking into the effectiveness of the DMCA Safe Harbor provisions, which immunizes Internet service providers (ISPs) like Youtube or Facebook from being held accountable for the copyright infringement of its users. There’s about 30 specific questions in their notice, as well as a catch all for “any pertinent issues not referenced above” that users think the office should consider. And while many would argue that this move is well overdue, there’s a few reasons (and likely more that aren’t listed here) that it’s certainly an interesting time to be reevaluating the DMCA.
No one is happy with it
The DMCA, enacted in 1998, has good intentions. But at this point, almost all sides have a bone to pick with it. When the rule was initially enacted, the Internet was just catching on; no where near the vast, ubiquitous force (armed with a much higher computing power) it is today. Copyright enforcers are tired of monitoring their sites and sending out official notices for what can essentially be a intellectual property version of whack-a-mole. Users, meanwhile, are tired of the now-commonplace automated systems that can be a bit too trigger happy when it comes to infringing content. Not to mention the frequent misuses (and abuses) of the DMCA.
“The problem is the DMCA is very effective if you are trying to stop websites from using your image or violating copyrights; it’s quick, efficient, and you don’t even need a lawyer to do it. The bad part is because it’s so easy, and websites have immunity, their immediate response is to respect the takedown request and remove the material without any consideration as to copyright issue or any fair use issues involved,” said Travis Crabtree, author of the eMedia Law Insider.
On more than one occasion, Crabtree says he’s seen people use the DMCA to report things that they aren’t sure or just “don’t like.” The problem is, a retaliatory action by a (potentially wronged) uploader isn’t as smoothly done.
“It’s harder for people to challenge the takedown, since in order to do that they have to file a lawsuit,” said Crabtree. “Imagine if you’re Facebook or Youtube, and you’ve got one side saying ‘take this down, it’s a violation,’ and the other saying ‘no it’s not.’ In order for you to avoid being dragged into the litigation you’d likely opt to leave it off the website entirely, since you can’t be sued for not putting it on your site.”
With 3D printing’s disruptive shadow lurking on the horizon and DMCA notices already being put into play on “infringing” designs, it’s certainly time for the Copyright Office to provide some guidance on what’s an appropriate complaint.
New technology is making sending notice easy—and some believe too easy
The Copyright Office’s inquest certainly comes at an interesting time. Last September, the Ninth Circuit ruled that a copyright holder had to consider whether the allegedly infringing material was considered fair use. But that case (which was also technically kicked back to a lower court to re-decide) barely touched on what entails “fair use,” nor did it properly address the use of bots.
Some have proposed a sort of bot/worker tandem. The Ninth Circuit noted that computer algorithms appeared “to be a valid and good faith middle ground for processing a plethora of content while still meeting the DMCA’s requirements to somehow consider fair use.” But fair use is a particularly murky area of the law, and Crabtree isn’t sure it’s clear to anyone where the lines are.
“You get a room with ten experienced copyright lawyers, and you’re rarely going to have all ten lawyers agree on whether something is fair use or not,” said Crabtree. “Tons of cases say there’s no bright line test for fair use…It’s difficult—if not impossible—to impose that burden on websites.”
It’s hard to create a balanced system where no one is getting the shaft
As it stands now, “violators” have a complex system to navigate if they believe they’ve been wronged, websites require some sort of involved system to ferret out violations, and holders have the burden of finding and reporting infringements. With those issues at play, it’s hard to imagine a system that can appropriately moderate the vast Internet of potential copyright infringements, without putting the weight too heavily on any one party.
“This really is a huge gray area, and it very complicated to develop a system that allows for everyone to succeed. You don’t want a copyright holder to have to file a lawsuit and take expensive steps every time there’s a violation. You don’t want a site like Youtube dragged into legal disputes for every little thing,” said Crabtree, who called even talk of restructuring the DMCA an encouraging sign to deal with these issues.
As Techdirt points out, the Copyright Office does seem to have a bias in this area:
The Copyright Office has historically come down on the side of copyright maximalists, so it wouldn’t surprise me to see that the end result of this process is them suggesting more liability and responsibilities for internet platforms — in part because they have absolutely no clue what a disaster that would be for content creators themselves. People who want to put more burdens on platforms think that this somehow helps content creators, but the opposite is true. It will mean fewer online platforms serving content creators, because the burdens will be too high. It will further entrench the large players and limit new upstarts, innovators and competitors.
Whether this yields any lasting change for the DMCA system is a question for the future. But the fact that they’re even considering an update to the system, let alone soliciting public input on it, is a victory in and of itself. Once its guidelines for comments are posted (reportedly by February 1, until March 21) the Copyright Office should be ready to hear an earful.