It's Time To Upgrade "Notice And Takedown"
The Digital Millennium Copyright Act's notice and takedown process needs a takedown of its own. At least until it can undergo an upgrade.
Section 512 of the DMCA is supposed to provide a process by which creators can work with Internet service providers to control illegal use of their work online. But today it is out of balance, placing the burden of policing the Internet for infringement on the creators themselves while limiting the liability of infringing websites through "safe harbors" when they do the bare minimum to qualify under the law.
Enacted in 1998, the DMCA was originally designed in part to provide music creators and other intellectual property owners with a course of action for removing infringing content from the Internet just at the time when digital and online platforms became an emerging mode of distribution. However, since its establishment the DMCA has become a source of ongoing frustration for creators. Even when a notice is successfully served and infringing content is removed, the same material is often reposted to the same site. Bold reforms are needed. The current system clearly does not allow creators to enjoy the protections copyright was intended to provide.
Yet, many ISPs, online services and websites continue to allow users to upload unlicensed content while thousands of music professionals who should spend time and money creating, instead find themselves squandering these resources on preparing and serving complicated takedown notices to have that content removed.
This is why the U.S. Copyright Office's December 2015 announcement of an in-depth study of the DMCA's Section 512 is welcome news. In March 2016, the Copyright Office further announced it will conduct a pair of two-day public roundtables in May to gather additional input on the matter from stakeholders. The Recording Academy has filed comments with the office expressing our views on the law, with first-person accounts by Academy members regarding their notice-and-takedown experiences.
This isn't the first time The Recording Academy has publicly weighed in on the DMCA's provisions.
The House Judiciary Committee's ongoing review of copyright law turned its attention to the effectiveness of the DMCA's safe harbor and notice-and-takedown provisions in March 2014, when the House Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the issue. Maria Schneider, a GRAMMY-winning jazz/classical composer and a member of The Recording Academy New York Chapter Board of Governors, gave compelling testimony at the hearing about her ongoing struggle to control online infringement of her work via the DMCA guidelines.
"Taking my music down from these sites is a frustrating and depressing process," she said. "The DMCA makes it my responsibility to police the entire Internet on a daily basis. As fast as I take my music down, it reappears again on the same site —like an endless Whac-a-mole game."
The task of using the notice-and-takedown process to remove infringing content is more than most artists like Schneider have the resources to tackle.Further, Schneider explained that creators who serve takedown notices are sometimes vilified by visitors to that website, who are disappointed or angered by having free access to copyrighted materials blocked by the author.
While commending YouTube for its takedown process, Schneider noted, "I took down something the other day, and now this is what the link sends to you. ... It says, 'This video is no longer available due to a copyright claim by Maria Schneider,' and then there is a sad face. Now, I find that that is designed to turn animosity toward me."
In its current filing, The Recording Academy expands on recommended upgrades to the DMCA's Section 512 first made by Schneider during her IP Subcommittee testimony:
Do Not Upload: Creators of content should be able to prevent unauthorized uploading before infringement occurs. The technology to block unauthorized works already exists, such as the Content ID program used by YouTube. Every creator should be able to register their music once through a system and have their ownership recognized across every online platform. Just like the "do not call" list, creators of content should be able to say "do not upload."
Streamline The Process: The takedown procedure should be more streamlined and consistent to lessen the burden on the victims of infringement. To upload music on most sites, website users simply click a box saying they acknowledge the rules of the site. On the other end of the spectrum, the rights holder must embark on a multipart procedure to have the material taken down, including preparing a notice for each site, certifying documents under penalty of perjury and spending hours learning the sites' unique rules for serving the notice.
Educate Consumers: Internet service providers, hosting websites and online music services should better educate consumers, more clearly informing them it is a violation of law to upload content they do not own.
Take Down Should Mean "Stay Down": Once a service has been notified of an infringing work, it should keep the work off of its site for good, regardless of the different names or forms it appears in.
These reforms would make the DMCA's notice-and-takedown process far easier for creators to navigate and be more effective in limiting online piracy and infringement. An upgraded DMCA would provide the fairness and protection of an effective copyright law.