Copyright Office to Review Safe Harbor in DMCA

(Republishing as the April 1 deadline for comments to the US Copyright Office approaches.)

Remember Bill Clinton?  If you don’t, he’s that guy who was just in New Hampshire campaigning for his wife Hilary, who’s running for president. Anyway, Bill Clinton was president so damn long ago that when he was first sworn into office, most of us didn’t even have email.  I mean in real history terms, the Clinton administration was just yesterday; but in Internet history terms, it was like forever ago. After all, most of the general public (which is to say folks other than university professors and members of the military-industrial complex) all suddenly jumped online during Bill Clinton’s first term in office. You might even say we became collectively and instantly an America Online.  Ah, the 90s. Good times. Or should I say YAHOO!?  I don’t know. Anyway, the Web looked very different. If you don’t believe me, you can Ask Jeeves.

During President Clinton’s second term, in October of 1998, he signed into law the Digital Millennium Copyright Act, a.k.a. the DMCA, which defines the conditions, responsibilities, and limitations for both ISPs and copyright holders pertaining to various remedies for online copyright infringement.  In order to balance interests and protect free speech online, Section 512 of the DMCA provides the conditions by which ISPs are granted safe harbor, shielding them from liability that might stem from copyright infringements perpetrated by users of their sites or services.  Section 512 also specifies the conditions an ISP must meet in order to maintain safe harbor protection, and among these is the establishment and maintenance of processes for removing infringing material and for canceling the accounts or denying access to repeat infringers.  The former would generally apply to platforms that host User Generated Content (UGC) while the latter would typically apply to an access provider like TimeWarner, Cox, et al.  But as I say, the Web looked very different when the DMCA was written.

As the capabilities and platforms have expanded—for instance from effectively no video in 1998 to YouTube’s stated 300 hours of high-quality video being uploaded to its platform every minute in 2014—it was inevitable that the incidences of repeat infringement and repeat infringers would expand in kind.  And they did. Rights holders presently send out hundreds of millions of DMCA takedown notices each year—just to YouTube alone—and only a small fraction of these (fewer  than 1%*) are either sent in error or are intentionally abusing the takedown system for purposes such as stifling criticism or other forms of non-copyright-related complaints.  Additionally, most wrongful takedowns are remedied by the counter-notice procedure provided for in the DMCA, which restores content that has been removed; and any further action from either party requires legal procedures outside the DMCA, including litigation, which is not all that common relative to the volume of content we’re talking about.

Meanwhile, the safe harbor provisions in Section 512 of DMCA were never intended to provide a blanket shield for ISPs while they profit incidentally from the high volume of infringements committed by users; but that’s more or less what’s been happening.  If at any given moment, there are 100 million infringing videos on YouTube, each generating only one view per video before they are removed by the notice-and takedown-procedure, that’s 100 million ad impressions generated while YouTube complies with the DMCA.  YouTube gets the ad revenue while infringing videos go up and down in a constant ebb and flow, and the safe harbor provisions shield the platform from any liability—or even responsibility—to further mitigate mass infringement.  Safe harbors were not intended to provide an incentive for allowing (if not fostering) mass infringement by users, which is why the Copyright Office announced on December 31 that it will begin a review of Section 512 of the DMCA on the premise that the provisions may well be antiquated relative to the realities of the contemporary Web.  In announcing the review and call for comments, the Copyright Office states:

“While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement. The growth of the internet has highlighted issues concerning section 512 that appear ripe for study.… Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices.”

With regard to access providers, the recent BMG v COX case offers insight into the conditions a provider must meet in order to maintain its safe harbor protection, and it also reveals the kind of shenanigans rights holders have been putting up with for years. Cox was successfully sued by BMG for contributory infringement based primarily on the fact that the plaintiff was able to demonstrate very clearly that the defendant did not have a reasonable procedure in place for canceling the accounts of repeat infringers as is mandated by Section 512 of the DMCA.  As I mentioned when I was a guest on the new podcast series Steal This Show, presented by TorrentFreak, pre-trial court documents indicate that Cox had what can best be described as a “13 strikes and you get a really strong warning” procedure for repeat infringers.  And perhaps even more damning, emails entered into evidence suggested that the access provider was effectively resetting the dial on repeat infringers to make them look like first-time offenders.  Naturally, there are more details, but suffice to say, neither the judge nor the jury found these processes to be adequate or reasonable procedures and, thus, Cox’s safe harbor defense was of no avail.

Still, at least some of the reporting and spin on that case will portray its outcome as an “expansion” of DMCA’s power to “stifle,” and it is worth noting that Judge O’Grady rejected amicus briefs from both the EFF and Public Knowledge, stated thus:

ORDER, having reviewed the proposed brief, the Court discerns no potential benefit to be gained from receiving the brief. This is not a situation where defendants lack competent representation. Nor have Public Knowledge and EFF persuaded the Court that they have a sufficiently special interest in the outcome of this litigation to warrant consideration of their viewpoint. Accordingly, the motion 405 for leave to file an amicus curiae brief is DENIED.

Given the amount of virtual ink and PR capital the Internet industry and its network of “activists” have devoted to excoriating the takedown provisions in DMCA, the general public—and even some reporters—can be forgiven for thinking that DMCA is synonymous with chronic and unrestricted removal of content without due process. In fact, it seems that even the reporting that wants to be objective (including the aforementioned TorrentFreak) can fall into the understandable but flawed habit of lumping all things DMCA together as though the law is little more than carte blanche for major rights holders to willfully bulldoze expression from the web.  In reality, of course, the DMCA is a more complex framework of remedies, counter-remedies, and defined boundaries for all parties. In fact, if you go looking for cases of DMCA takedown abuse, you’re far more likely to find smaller rights holders, foreign organizations, or non-copyright-industry parties (e.g. Ashley Madison) committing improper takedowns through DMCA.  Meanwhile, the usual “villains” in the public narrative—the major film studios and music labels, who send out the majority of notices to platforms like YouTube—generally know what they’re doing, which is why the incidence of error in their procedures is extremely low.

But as the Copyright Office proceeds with its review of Section 512 and various interests respond to the call for comments, it’s likely we’re going to see the Internet industry—and the EFF, Public Knowledge, et al—try to portray safe harbor provisions as sacrosanct. (After all, there’s a lot of free money at stake, and who doesn’t like free money?) And these entities can be expected to follow their well-worn playbook of presenting the unalienability of safe harbors as vital to the functioning of the Internet and free speech and the rights of man and the very air that we breathe, and so on.  And to be clear, nobody (me included) would advocate revoking safe harbors. These provisions are an important component of digital-age law and are predicated in part on protecting free speech.  I’m just saying to watch out for the hyperbole when it comes.  The Copyright Office is reviewing Section 512 to potentially recommend tweaking it to fulfill its intent, not to abandon its intent altogether.

In a way, the most frustrating aspect of DMCA for rights holders is that it is reminiscent of another Clinton legacy—that unfortunate absurdist theater called “It depends on what the definition of is is.”  Likewise, the proverbial game of Whack-a-Mole—as everyone describes counter-infringement procedures—is really a game of semantics that ISPs have been playing for more than a decade.  What is an infringement?  Who is a repeat infringer? What is a reasonably implemented policy?  And so on. But then, that’s law—a best attempt to use language to create salubrious policy.  And since Section 512 seems to unintentionally leak mass infringement like a sieve, it’s probably time for a rewrite.


*This estimate is based both on counter-notice data from MPAA takedown requests as well as anecdotal information stated in October 2015 amicus brief seeking new ruling in Rossi v MPAA.

© 2016 – 2018, David Newhoff. All rights reserved.

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18 comments

  • Cox is a good thing, in many ways, as it offers at least some guidelines (and highlights potential pitfalls) as to how the matter should be handled (and how it should not be) on the ISP side. Possibly some compliance control mechanism is in order, to discourage further fast-and-loose interpretations of the law, before it’s time to litigate. Prevention is better than the cure after all.

    (Aside: Cox also confirmed what many of us suspected for years – that ISPs profit from infringers and would be happiest to permit them to keep infringing. This point should not be lost on the legislators.)

    Regardless, an amendment I’d be happiest to see – but am unlikely to – is a differentiation between service providers and content providers. The difference lies not in any technical aspects (YouTube can be viewed as fundamentally the same, technologically, as a web-hosting provider), but in the business. In short, if you get paid for making content available to users (either directly, through subscriptions, PPV or whatnot, or indirectly through advertising), you are a content provider and different rules apply.

    It does not matter who supplies the content in question: the content provider should be solely responsible for anything they’re making available – including clearing all the rights – just like a traditional publisher, TV network or broadcast station would be. Will it change the way many existing services do business? Certainly. Will it “break the internet”? Hardly.

    A belated “Happy New Year!”, by the way.

    • Thanks, Faza, and a Happy New Year to you!

      I think your question goes to the crux of the matter. There’s certainly an argument to be made that YouTube is both–that as a site hosting UGC, it is merely providing access to content; but as a media company selling advertising against the content, it is also very much a publisher. There are of course other aspects of YouTube’s model and TOS that make it very much like a publisher. I think any rational lawmaker (or person above the age of nine) can see that YouTube is in a class distinct from a “service provider” like a Cox. The extent to which Google’s money and clout in DC will skew such reason is not to be underestimated.

      • Here’s the thing: the UGC hosting is a red herring.

        YouTube does not sell hosting services to uploaders; it monetizes viewers of videos. There is nothing in YouTube’s business that relies on the content being user-generated. The only thing that matters is how popular the content is.

        Hell, YouTube could throw out all the UGC and focus solely on stuff coming from media companies and MCNs (media companies by a different name) and their business would not change very much. if at all.

        I’m sure we would agree that the old MegaUpload was much more akin to a hosting provider than YouTube – on the face of it. But! Their business consisted in charging the downloaders (if only in ad exposure), not the uploaders who were hosting the content. Indeed, they were paying uploaders for uploading popular content, which is a key aspect of the ongoing case.

        YouTube, funnily enough, is doing a very similar thing through its revenue-sharing program – and I have it on good authority that they are not being particularly diligent in verifying claims of authorship (frankly, they don’t give a damn), which allows fraudulent claims on actual UGC (of all things) to pass through and generate a tidy income for the claimants. Were it not for political clout, YouTube would be open to strikingly similar criminal charges.

        The beauty of the service/content provider distinction is that it neatly sidesteps a lot of issues regarding changing technology, source of content etc. It looks at one thing and one thing only: is the service monetizing content or not. If so, heightened diligence standards apply and there are no easy outs.

        An added benefit is that true hosting providers – the people who charge you for storing your content and making it available – actually discourage drive-by piracy. Seeding torrents and suchlike looks a lot less appealing if every download costs you money.

      • Of course it’s a red herring. Getting lawmakers to admit that beyond closed doors is another matter. I really do think fear of Google is likely a bigger challenge than presenting this argument on its merits. The question is will creators mandate the change and provide lawmakers the cover they need to stand up to Google?

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  • The DMCA has been used to abuse small businesses and small time content providers since its creation. It has already been PROVEN that the process is controlled by poorly designed AI’s without human review. It has been PROVEN that more than HALF of ALL submitted DMCA takedown notices are outright illegal and claim ownership over something they either have no ownership over or are just strait lies trying to punish someone who is protected by either fair use or other applicable laws. However, the most alarming FACT is that no jury nor judge has to hear a case on each takedown which is an outright violation of the constitution as it completely bypasses due process and allows large corporations to terrorize small businesses and content creators relentlessly. All in the name of stopping something that will never and can never be stopped at the cost of millions of law abiding citizens livelihoods.

    The extent of the heinous and illegal abuse doesn’t stop there. Take for example Chilling Effect sites. They provide a legal service documenting legal notices and making them view able to all so people can see how they are being taken advantage of and abused, and these corporations even tried to DMCA this multiple times in the past! That is an absolute illegal move to oppress a legal business or person with no legal bearing and again NO DUE PROCESS.

    Just to drive the point home on how absurd this bullshit war on piracy has gotten, the only people who can afford to fight large corporations in court, is of course, large corporations. So when the MPAA starts suing little guys over defying DMCA’s for something they never did, again something they have been exposed and proven to have done in the past and continue to do today, what chance do they stand with their 1 lawyer or public defender against an infinite supply of money and frivolous litigation? Who does that favor?

    Then you come on here and right a love article for the DMCA? REALLY? Are you mentally retarded? Do you have down syndrome? I cannot possibly conceive how someone with even 1/100th of a brain could be so mentally incompetent to believe that the DMCA helps ANYONE at all. This type of law and these type of mouth breathing morons (people like you) will be the down fall of all our rights and freedoms. For fucks sake why not just post a video of you burning down a bunch of small businesses, the American flag, the constitution, and a bunch of poor/middle class people? It is literally the same thing as this shit piece.

  • Furthermore I feel like calling out a Hollywood c0ck sucking liar right here and now.

    “…and only a small fraction of these (fewer than 1%*) are either sent in error or are intentionally abusing the takedown system…”

    https://www.techdirt.com/articles/20090315/2033134126.shtml

    “In its submission, Google notes that more than half (57%) of the takedown notices it has received under the US Digital Millennium Copyright Act 1998, were sent by business targeting competitors and over one third (37%) of notices were not valid copyright claims.”

    1% eh? Pull that number square out your as$?

    • Eric, you quite simply have no idea what you’re talking about on too many subjects to bother with a detailed response. And as for these numbers cited from a 2009 Google statement as reported by Techdirt, they’re not even close to the numbers cited by groups who litigate and file briefs in court proceedings coming from your side of the argument. I mean not even close. My number is based on actual ratios of notices and counter-notices among the largest senders of DMCA takedowns.

      Also the MPAA doesn’t really sue little guys, and one cannot be sued for “defying DMCAs.” It doesn’t work that way. DMCA is also not a verb. But don’t let your complete ignorance stop you from bloviating. This blog doesn’t get many bloviators, so it’s a refreshing change once in a while.

    • As far as I recall there have been a few issues with game creators sending DMCA notices out against bad reviewers, and the Hubbardistas used DMCA notices back about 15 years ago. There may be a handful of other cases. If we were to count them all up those cases would be far less than 1% of the DMCA notices that get sent. Google search alone gets 66 million notices a month so by your reckoning there should be some 37 million fraudulent ones each month. Go back to tossing the salad with Masnick.

  • “As I mentioned when I was a guest on the new podcast series Steal This Show, presented by TorrentFreak”

    Torrentfreak is a site that practices censorship.

    • Torrentfreak is also a site published by people who hide behind pen names, that has little to no editorial integrity, and that caters largely to a psychographic of readers and commenters that are militant in their sense of entitlement to steal digital content and consume it without compensating the people who actually create it.

  • “And they did. Rights holders presently send out hundreds of millions of DMCA takedown notices each year—just to YouTube alone—and only a small fraction of these (fewer than 1%*) are either sent in error or are intentionally abusing the takedown system for purposes such as stifling criticism or other forms of non-copyright-related complaints.”

    That’s still at least a million bad takedowns a year, no? That’s quite a lot. This is an odd argument anyway. If 1 in a 100 people in jail are innocent, that is not a good thing or proof the system is working.

    I think the MPAA figures are misleading on this anyway. They’re actually not much of an issue on this; the MPAA are pretty good with their takedown process.

    As John has already touched on, the issue here is mostly only affecting certain sectors (games journalism being a major one) and much as I like to take a pop at the big guys, this is much smaller fry. There’s no evidence of the MPAA or the RIAA using the DMCA to stifle criticism. There is more of an issue with crappy unity asset flipping indie video games publishers doing so.

    This strikes me as an area where I hope some compromise can be found.

    On one hand, we have the situation where copyright infringing media is being put up again instantly, sometimes by the same people. Which is why I support the principle of stay down and take down.

    However, that would make bad takedowns more of an issue because it would make them harder to counter. But, as you point out, the vast majority of takedowns are legitimate. So bad takedowns are obviously avoidable. So we can assume that most illegitimate takedowns are due to incompetence at best and active malice at least.

    And we should take action on this.

    With negligence, I don’t think there’s need to go all punitive. Some monetary compensation and that’s in. With deliberate bad actors, I’d like to throw the book at them.

    Works for everyone, surely? I genuinely don’t understand the hostility in some quarters to punishing bad takedowns. If this would harm someone’s way of doing DMCA takedown requests, it says worrying things about their own practises.

    • Hey, Sam. So, wrongful takedown requests likely come in three types: intentional abuse, misunderstanding, and automated. Most of the automated naturally is performed by large rights holders and large OSPs. I think the central fight there is the OSPs say “We’re handling tens of millions of takedowns” and the rights holders are saying, “So, help us mitigate the volume of infringement on your platforms.” Misunderstanding is more likely committed by smaller rights holders who may not quite understand what they’re doing, and it should be remedied by counter notice. Intentional abuse designed to stifle criticism, etc. should, I agree, be penalized. But by the same token, so should repeat intentional infringement by users, which doesn’t really happen.

      What I find hard to believe is that a platform like YouTube is not found to be in violation of the conditions for safe harbors in DMCA. I think the precedent rulings on “red flag” knowledge are unrealistic in many cases, and how anyone can argue that they don’t benefit financially from infringement is beyond me. I believe that if we could find ways to mitigate the mass infringement, get search to demote or delist the major pirate sites, address the big content, which represents most of the infringement, we could focus more realistically on the individual abusers on either side.

      • Google have always been slow to deal with DMCA takedowns. Even as late as 2007/8 the only way you could send a DMCA was by post or fax. No email or any other electronic reporting system. Which when you thnk about it is amazing for any tech company, even more so for one that has only ever been one on the internet. Indeed the Yahoo! management was astounded that Google didn’t have an electronic DMCA reporting system. As late as 2012 Google limited the number DMCA takedowns that anyone could send in any one week/month. It was only after SOPA, the Google claim that DMCAs were low, and the RIAA and MPAA counter that Google was limiting the number of DMCAs that the break was lifted.

        In truth Google has always had the same policy as that reported to have been the at Megaupload, Grooveshark, and others. Delay taking down infringing content for as long as possible, do not takedown alternate URLs pointing to the same content, keep the infringers on board for as long as possible.

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