The DMCA Protects Thieves at the Expense of Creators

Photographer Daniel Foster has written a great post on in which he documents (once again) how creators–in this instance photographers–are at a real disadvantage when it comes to protecting their work from online thieves.  In his piece, “Is Etsy the New Silk Road for Copyright Infringement?” Foster explains how Etsy (an e-commerce site where users can sell hand-made and vintage merchandise) looks the other way when it comes to cracking down on copyright abuse.

Etsy is selling thousands of stolen photos and doesn’t seem to care. Their system lets sellers hide their contact information, and Etsy will not disclose the identities of sellers stealing work even after being presented with clear evidence.

Etsy is in essence the new Silk Road for copyright infringement

Foster arrives at this conclusion after discovering an Etsy entrepreneur was using one of his photographs on mouse pad she was selling.  After wending his way through the legal maze that is the DMCA process, and successfully having the infringing item removed from Etsy, Foster wanted to go a step further.  He wanted to contact the seller who was, apparently, offering numerous other products that include stolen photographs.  Foster notes, “…she seems to be stealing thousands of photos from other photographers, and Etsy is letting her get away with it.”  The seller, Kharma Lu, was selling her products as “Liilproducts” and offered no contact information.  While Etsy removed the infringing mousepad, it refused to provide Foster with any additional information regarding the seller, saying it would do so only if a subpoena is issued.

This is the same problem that arises when a copyright holder receives a false counter-notice, say on YouTube.  YouTube will repost the infringing content and the rights holders are forced to go to court to enforce their rights.  We constantly hear about DMCA abuse, but no one mentions the fact that the DMCA process is tilted in favor of thieves as ultimately those without the deep pockets required to go to court cannot enforce (valid) claims.

Fosters summarized his frustrations this way:

In order to simply find out who is stealing my photo, I would have to a) hire an attorney, b) go to court and c) request a subpoena for Etsy. Assuming Etsy did not challenge the subpoena, it would cost at least $3,000- $5,000 just to get Kharma Lu’s address.

LiilProducts’ shop is still active, even after I reported the copyright infringement to Etsy. Kharma Lu appears to have gotten away scot-free thanks to Etsy’s protection. This just isn’t right.

Etsy, of course, is not alone in its response.  YouTube, or any other site profiting off stolen content, will cite the DMCA and refuse to provide contact information for its users, even when they are clearly violating the law.  These sites do nothing to ensure that its users comply with copyright law prior to uploading or sharing content.  The DMCA does provide web hosts with this glaring loophole thanks to its “safe harbor” provision.   As explained on the Google-funded Chilling Effects website:

The safe harbor provisions permit a copyright owner to subpoena the identity of the individual allegedly responsible for the infringing activities. [512(h)] Such a subpoena is granted on the condition that the information about the individual’s identity will only be used in relation to the protection of the intellectual property rights of the copyright owner. [512(h)(2)(C)]

Until the law is changed creators are stuck with this scenario.  I suggest you read Foster’s full piece here to get the full picture as to how this can impact individual creators.  His narrative provides just one more example of an online eco-system where the rights of creators are subsumed by the rights of thieves.  I should note that Foster has also recently founded  PIXSY, a much-needed service that promises to help photographers safeguard their work against copyright infringement.  You can find out more about Pixy here.

Note: When I checked LiilProducts page on Etsy this morning it seems that Foster may have (indirectly) gotten his wish.  According to the site, “Liilproducts is taking a short break.” 🙂Screen Shot 2014-10-06 at 10.50.55 AM