(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.
