THREE YEARS LATER, DMCA STILL JUST AS BROKEN

by Matthew Barblan & Kevin Madigan
cross-posted from the CPIP Blog

In 2013, CPIP published a policy brief by Professor Bruce Boyden exposing the DMCA notice and takedown system as outdated and in need of reform. The Failure of the DMCA Notice and Takedown System explained that while Section 512 of the DMCA was intended as a way for copyright owners and service providers to work together to fight infringement in the digital age, the notice and takedown system has been largely ineffective in managing the ever-increasing amount of piracy.

Three years later, the DMCA is still just as broken. Since we published the brief, courts have further diminished service providers’ responsibility to cooperate with copyright owners to detect and deter infringement, rendering the DMCA even more fruitless and desperately in need of retooling.

Boyden explained the fundamental problems with the system at the time, beginning with the fact that “despite all the notice, there is precious little takedown to show for it. Unless a site employs some sort of content filtering technology, the same content typically re-appears within hours after it is removed.” The notice and takedown system is particularly unsuited for the twenty-first century, where “infringement is persistent, ubiquitous, and gargantuan in scale. It is a problem that needs to be policed” with more than just takedown notices that don’t give copyright owners “a single day when the content is not available on the most heavily trafficked sites.”

Boyden noted that “even for the largest media companies with the most resources at their disposal, attempting to purge a site of even a fraction of the highest-value content is like trying to bail out an oil tanker with a thimble.” And Boyden pointed out that the courts hadn’t made the situation any better: “The DMCA’s unsuitability as a tool to manage chronic, persistent, and pervasive infringement is particularly apparent after recent decisions from the Second and Ninth Circuit that construed the duty of website owners very narrowly under Section 512.”

To further illustrate his point, Boyden collected data on takedown notices sent by MPAA companies and counter-notices received. Between March and August of 2013, MPAA companies sent takedown notices for over 25 million infringing URLs and received only 8 counter-notices in response. That’s a counter-notice rate of 0.000032%, suggesting that the astronomical volume of notices represents a likewise astronomical volume of infringement rather than overly-aggressive notice-sending.

Boyden concluded:

The impossibility of keeping up with new [infringing] uploads means that an online service provider can create a site aimed at and dedicated to hosting infringing copyrighted works, comply with every takedown notice, and still benefit from the safe harbor, as long as its intent remains hidden. If the site has enough users, any popular content removed will be supplanted by new copies almost immediately.

Sadly, three years later the “chronic, persistent, and pervasive” infringement that Boyden described continues, with stolen copyrighted works popping up on sites almost immediately after being taken down. Google Search—one product of one company—has receive nearly 90 million takedown notices this month alone. The situation has gotten so bad that last week a long list of artists, including Paul McCartney and Taylor Swift, signed a digital petition to bring attention to a broken DMCA system that allows companies like YouTube to benefit from infringement at the expense of songwriters and artists.

The artists’ main message: “The existing laws threaten the continued viability of songwriters and recording artists to survive from the creation of music.” They note that “the tech companies who benefit from the DMCA today were not the intended protectorate when it was signed into law nearly two decades ago,” and they ask Congress to “enact sensible reform that balances the interests of creators with the interests of the companies who exploit music for their financial enrichment.”

Recognizing the growing frustration with the DMCA, the U.S. Copyright Office initiated a study earlier this year to examine whether the statute is fulfilling its purpose. We submitted comments to the Copyright Office on behalf of a group of copyright law scholars, noting that courts have disrupted the balance Congress sought to create when it enacted the DMCA. In particular, courts have eliminated any incentive for service providers to work with copyright owners to develop policies and procedures to prevent or curb piracy online. In just one example of how deeply courts have distorted congressional intent, under courts’ current interpretation of the DMCA, search engines can continue to index even obviously infringing sites like The Pirate Bay with no fear of potential of liability.

Adding insult to injury, courts have recently shifted the balance of power even further away from artists and towards service providers, making it easier than ever for companies to enable and profit from infringement while turning a blind eye—or even encouraging—piracy on their sites. In this month’s Capitol Records v. Vimeo decision, for example, the Second Circuit extended the DMCA safe harbor to Vimeo despite smoking-gun evidence that Vimeo employees encouraged users to post stolen works on their site and had viewed the illicit videos at issue in the suit. In a jaw-dropping opinion, the court let Vimeo off the hook simply because the evidence of Vimeo employees encouraging infringement wasn’t directly tied to the specific infringing videos that plaintiffs included in their suit.

CPIP’s Devlin Hartline explains:

After Capitol Records v. Vimeo: A service provider can encourage its users to infringe on a massive scale, and so long as the infringement it encourages isn’t the specific infringement it gets sued for, it wins on the safe harbor defense at summary judgment. This is so even if there’s copious evidence that its employees viewed and interacted with the specific infringing material at issue. No jury will ever get to weigh all of the evidence and decide whether the infringement is obvious. At the same time, any proactive steps taken by the service provider will potentially open it up to liability for having actual knowledge, so the incentive is to do as little as possible to proactively “detect and deal” with piracy. This is not at all what Congress intended. It lets bad faith service providers trample the rights of copyright owners with impunity.

As courts continue to gut the DMCA, making it harder than ever for artists to protect their property and livelihoods, Congress would be wise to heed Bruce Boyden’s advice from three years ago: “It is long past time for a retooling of the notice and takedown regime.”