Notice-and-Takedown in the Spotlight

[Originally posted on the American University Intellectual Property Brief Blog on March 25, 2014, CC-BY]

This month, Section 512 of the Digital Millennium Copyright Act (DMCA) has been in the spotlight so much that some have branded it DMCA Month.

The operation of Section 512, which creates a safe harbor for online service providers for the infringing activities of their users, has been highly controversial among stakeholders. Service providers are overwhelmed by the sheer number of takedown notices they receive; as of March 23, 2014, Google reports receiving more than 23 million requests in the past month for URL removal from its search engine from over 4,000 copyright owners and nearly 2,000 reporting organizations. Meanwhile, rightsholders lament that they must seek out infringing content and that after allegedly infringing content is taken down, the same content is reposted elsewhere. Others are concerned about the frequency of takedown notice abuse and the failure of rightsholders to consider whether uses are non-infringing before sending takedown notices.

On March 13, 2014 the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on Section 512. The hearing included a heavy focus on the concept of a “notice and staydown” requirement, which is strongly supported by Representatives Judy Chu (D-CA) and Tom Marino (R-PA). However, the technical feasibility and free speech implications of such a system raise serious red flags. As Professor Lawrence Lessig recently reminded the world, not all uses of a copyrighted work are infringing, and many creators support legitimate unlicensed use of their works. In addition, according to at least one study, the recording industry earns more money from fan videos than from official music videos.

As Joel Thayer discussed, Google and Viacom announced in a joint statement on March 18th that they were settling the long-running lawsuit against YouTube. Viacom alleged that YouTube was ineligible for protection under Section 512 because there was knowledge of infringing content being shared on the service. However, the court consistently ruled against Viacom.

On March 20, 2014, the National Telecommunications & Information Administration (NTIA) and the United States Patent and Trademark Office (USPTO) convened the first meeting of the Multistakeholder Forum on the DMCA Notice and Takedown System. This process, which arises out of last summer’s Green Paper on Copyright Policy, Creativity, and Innovation in the Digital Economy, is intended to enable stakeholders to come to a voluntary agreement about improving the operation of the existing process. One of the first issues to be tacked, standardizing notices, is relatively uncontroversial.

While these processes all look to deal with alleged infringement after the fact, none look to eliminate the cause. As I’ve written here before, there are serious questions about the validity of the numbers rightsholders use to demonstrate significant harm to their bottom line. There are also a significant number of more reputable reports stating that the best means to reduce infringement is to offer good legal alternatives to piracy. As Kevin Spacey said: “Give the people what they want. When they want it. At a reasonable price. And they’ll watch it, and they won’t pirate it.”