Update to Digital Millennium Copyright Act Long Overdue

by Ellen Seidler | Copyright, Film, Law, Piracy, Politics

Momentum is building for changes to the DMCA that will better protect creators

Content creators from all walks of life are coalescing around the need to update copyright law to protect their work against theft in digital age.  A piece in yesterday’s NY Times,  Music World Bands Together Against YouTube, Seeking Change to Law, is the latest to highlight growing calls by the creative community to update a woefully antiquated Digital Millennium Copyright Act of 1998.

In its newest effort, the music industry has asked the federal government to change the Digital Millennium Copyright Act, saying that the law, which was passed in 1998 and protects sites like YouTube that host copyrighted material posted by users, is outdated and makes removing unauthorized content too difficult.

Cary Sherman, the chief executive of the Recording Industry Association of America, says that even when songs are taken down, they can easily be uploaded again.

“This is a new form of piracy,” he said. “You don’t have to go into dark corners and sell stuff out of your car. You can do it in plain sight and rely on the D.M.C.A. to justify that what you’re doing is perfectly legal.” –NY Times

Last month the U.S. Copyright Office held public roundtables in New York and San Francisco to hear testimony as part of its study to “evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.”

As part of the study, the Copyright Office also solicited public comments. While I shared by thoughts with researchers at Mason Law’s Arts & Entertainment Advocacy Clinic for its submission, “Middle Class Artists Want a DMCA System that Works”  I also drafted my own statement.  Although my comments are part of the public record, I thought I’d share my them here as well.   My hope is to generate further dialogue as to how we can advocate for a meaningful update to the DMCA so that moving forward, creators’ rights (and livelihoods) will be better protected.

Here’s my submission to the U.S. Copyright Office.

Updating the DMCA – Areas of Concern

Overwhelming volume

The DMCA is currently the only tool content creators have available to safeguard their work from online theft and profiteering. Unfortunately, these days, using the DMCA to fight piracy is about effective as standing under Niagara Falls holding an umbrella.

Within a few months of our independent film’s release in 2010 we’d found more than 56,000 illegal download links and streams for pirated copies. Those are only the ones we managed to uncover. There were likely thousands more.

Multiply that figure by hundreds, if not thousands, of downloads per link and one can begin to appreciate the scope of the problem. Of course not every illegal download equals a lost sale, but even looking at a fraction of the total, the income lost by diluting legit sales can represent the difference between paying off production debts and making another film, or not.

The time and effort spent in policing piracy on the web is time and effort most independent artists cannot afford. For larger entities that can engage takedown services to manage the work for them the process remains an expensive and daunting task.

Ultimately such efforts can only slow, not stop, the incredible tide of online piracy.

Overly complex takedown procedures

While that language required to craft a legal DMCA takedown notice is straightforward, the process for actually sending it to an OSP’s takedown agent is often not so clear. While some OSPs accept email notification (as required by law), other larger entities, like Google, prefer that requests be sent via a cumbersome and time-consuming online process.

Uploading infringing content to a Google site can be done with a mere click of a mouse, unfortunately removing it is not quite so simple. Because the email address for Google’s DMCA Agent is not posted on its websites, rights holders must jump through various hoops and navigate through a series of questions in order to arrive at the correct form. Once there it takes additional time to complete the 9-part form. Before one can actually send it one must be sure to create a Google account, then login and send.

Once the takedown request is sent, no copy of the actual takedown request is generated, only a brief acknowledgement of receipt. Then it’s a waiting game to see whether the infringing content gets removed.

Sending a simple DMCA takedown notice via email is simple, fast, and makes record keeping and follow up easy.   Any update to the DMCA should continue to support email as an efficient way to send takedown requests and require that OSPs process emails with the same speed as those submitted via the web form.

Repeat infringement

Even if one sends a DMCA takedown notice to Google reporting a site for dozens of illegal links, Google allows the site to remain online.   It takes multiple notices, sent 48 hours apart, to trigger any sort of account disabling.

Other sites employ varying degrees of punishment for repeat infringers and some do nothing. This is certainly an area of concern for rights holders as it adds to the overall ineffectiveness and inefficiencies of the DMCA notice and takedown process.

Any update to the DMCA should specify what constitutes a repeat infringement and require that OSPs publish this information on their website. The law should also require that the OSP be responsible for preventing any re-upload of content already reported as infringing. This can be achieved by employing technological solutions described in the following section.

Technological Solutions

Technology brought us to this point. It’s time technology be utilized to help safeguard copyrighted work. YouTube’s Content ID system, though not without problems, at least provides a way for rights holders to find and manage YouTube access for their music or films. Cloud storage provider Dropbox also employs technology to scan files for identifying hash data so that reported files cannot be uploaded repeatedly.

If an OSP’s (online service provider) business model is predicated on monetizing user-generated content (not vetted for copyright) then the OSP should be required, by law, to implement some form of digital fingerprinting to prevent infringing material from being uploaded in the first place. This type of technology would also help address enforce a takedown – stay down approach and prevent repeated uploads of pirated content to a site.

If an OSP does not have the resources to build its own proprietary tech like YouTube’s Content ID, there are a number of third-party vendors, like Vobile, that offer digital fingerprinting. While such 3^rd-party services are not free, it seems only fair that cost of implementing a digital gatekeeper be considered a cost of doing business. Creators have long borne the “costs” of OSPs monetizing their content without permission. Having OSPs tap into profits to better protect copyright seems only fair.

Any update to the law should include a requirement that, in order to qualify for the limitations to liability that safe-harbor offers, certain user-generated content sites must implement reasonable technology to mitigate content theft.

Counter-notices and small claims process

Not only are creators burdened with having to play detective to find and remove their stolen content from various websites, but even the counter-notice system works against rights holders.

The counter-notice system allows recipients of an erroneous DMCA to prevent the removal of content and while such a system of checks and balances is important, problems occur when such counter-notices are themselves erroneous. Unless the sender of the DMCA notice files in federal court to enforce the takedown, following a 10-day waiting period, the reported content is reposted.

For most indie artists, the cost of filing in federal court to enforce a DMCA takedown is far too costly and so, in these cases, the infringing content remains online. I’ve experienced this situation multiple times and have seen full copies of a film reposted after a counter-notice (claiming fair use) was sent after a takedown on YouTube.

Perhaps, as part of any update to the DMCA, the time has finally come to create a small claims process to adjudicate copyright claims outside the federal court system. The U.S. Copyright Office has already studied the issue and has recommended creation of a voluntary system of adjudication to resolve copyright small claims. (http://copyright.gov/docs/smallclaims/usco-smallcopyrightclaims.pdf )

Content removed due to infringement should not be replaced by direct links to 3^rd party site(s) that republish the same infringing links

Another issue not addressed by the DMCA is a problem that’s arisen thanks to a third-party database that records all the DMCA notices received by a number of OSPs including Google. The Lumen database https://lumendatabase.org/ (formerly Chilling Effects) offers a searchable database of these DMCA notices. While this might serve as a valuable archive, Lumen’s searchable database, in its current form, does not redact the infringing URLs from the DMCA notices and so–in effect–becomes an efficient search engine for pirated content. This afternoon I used Lumen’s search engine to look for illegal copies of the recent release “Carol.” With one click I found a link, then right-click and I ended up at an active, illegal copy online.

Lumen’s DMCA notices are also easily found thanks to Google’s direct links to them in what would seem to be blatant disregard for the DMCA’s intent–if not the law. The scenario works like this: When an infringing link is removed from Google search following a DMCA request, the search result remains, but the original infringing link is simply replaced with a fresh hyperlink to the DMCA notice stored in Lumen’s database. Essentially, removing the infringing link from Google search with a DMCA takedown requests only means a web user searching for pirated copies only has to click one additional link in order to find the pirated content he/she was looking for.

While the database itself may claim to operate under the mantel of “free speech” one has to ask how Google qualifies for “safe harbor” protection when infringing links removed from its search engine are replaced by a link to the DMCA notice on the Lumen database that contains the same, un-redacted infringing link.  This type of re-linking should be explicitly banned in any update of the DMCA.

What’s at stake

Takedowns will continue to be a part of any DMCA fix, but collectively we must figure out a better way streamline the process, utilize technology, and mediate disputes in order to protect copyright and support a culture where creators can flourish– and the wealth of content they create can be enjoyed, and sustained, by consumers throughout the world.

If nothing is done to update the DMCA for the 21^st century, content creators of all stripes will continue to struggle and the diversity, and variety of quality of creative content available to consumers will diminish. At first, we may not miss what isn’t made, but eventually our creative culture will be the lesser for it.