1998’s DMCA is well past its sell-by date.  Time for a makeover.

The past 20 years have seen a virtual technology revolution.  We have the world at our fingertips, literally.  Yet, despite the massive technological transformation of our society and culture, our laws have yet to catch up.  The haggard Digital Millennium Copyright Act is a shining example of this fact.  Signed into law in 1998, the legislation was designed to manage copyright issues in the dawning digital age.

Unfortunately, rather than manage copyright, it’s provided a huge loophole through which a number of online pirate entrepreneurs sail blissfully through.  Known as the “safe harbor” provision, this oft-abused language has served to shelter digital thieves at the expense of rights holders.  “Safe Harbor” has enabled the growth of a criminal cancer and it’s a cancer–that as of now–cannot be beaten, only kept (marginally) at bay. As Wikipedia notes, “The DMCA’s principal innovation in the field of copyright is the exemption from direct and indirect liability of internet service providers and other intermediaries.” As I’ve suggested previously, any update to the law should include a requirement that in order to qualify for the limitations to liability that safe-harbor offers,  certain user-generated content sites must implement reasonable technology to mitigate content theft.  More on that later.

The actual “takedown” process has also drawn fire (from both sides of the debate).  Copyright holders often find sending out DMCA notices to be an exercise in futility as it’s nearly impossible to keep up with the volume of pirated content found online (usually via for-profit piracy websites).  Those who operate legitimate user generated content sites like YouTube argue that false DMCA notices stifle “free speech.”  Never mind that the vast majority of notices sent are valid if Google’s stats are any indication.  They report that more than 97% of the notices they receive are valid (data listed from 2011).

At any rate, this past week in Washington the wheels of government moved ever-so-slightly as the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet held a hearing on the DMCA.  The witness list included Katherine Oyama, Sr. Copyright Policy Counsel for Google; Paul Sieminski General Counsel for WordPress parent Automattic;  Grammy winning composer and conductor Maria Schneider;  Paul Doda, Global Litigation Counsel for Elsevier;  Annemarie Bridy, professor University of Idaho College of Law; and Sean M. O’Connor, a law professor from the University of Washington.

Overall the testimony was predictable.  Those representing copyright holders spoke on the burden of sending repeated takedowns while those with a tech perspective argued that the DMCA actually hurt those receiving notices more than it helped artists in safeguarding their work.  Tech representatives also extolled the virtues of “safe harbor” and declared that it was the reason that the internet has flourished in the nearly 20 years since the law was enacted.  Of course they failed to mention that abuse of “safe harbor” is rampant and that the intent of the law’s languages has been twisted beyond repair and in desperate need of a 21st century  makeover.

Google’s Katherine Oyama appears be well-liked in Washington DC, but even the RIAA found fault with her testimony and published a “fact check” of her statement.  Oyama noted that Google has spent more than “60 million dollars on the development of content ID on YouTube,” but the RIAA fact check puts that figure into context:

Google created Content ID in 2008. Google’s revenues since then have surpassed $200 billion – so Google only spends less than 0.03% of its revenues on preventing copyright theft on YouTube?

Ms. Oyama’s assessment that the DMCA was working well for rights holder was also a dubious assertion.

The increasing volume of takedown notices demonstrates the continued relevance and effectiveness of the DMCA’s notice-and-takedown regime. Copyright owners are using the process ever more intensively, suggesting that they continue to find it valuable.

“Valuable” relative to what?  I suppose something is better than nothing but certainly the DMCA as an effective method to remove infringing content online is somewhat like using an umbrella to keep dry in a hurricane.   Though not her intent, Ms. Oyama’s testimony does offer a glimpse at what should be included in any update of safe harbor:

As copyright owners and enforcement vendors continue to deploy new technologies to identify uses of their works online, we expect the cost per notice to continue to drop, and takedown volumes to concomitantly increase.

The key here is new technologies.  As I alluded to above, my suggestion to “fix” safe harbor would be to mandate that websites offering affiliate rewards (the business model used by the now defunct Megaupload) be required to institute some form of content ID system in order to vet content uploaded by these affiliates.  Note that I said sites offering affiliate (cash) rewards.  The cyberlocker business model, which has become the central means of disseminating and monetizing stolen content online, would no longer be viable.  Sites like drop-box that allow users to store and share files but don’t incentivize piracy would remain untouched.

Paul Sieminski who testified on behalf of Automattic, the parent company of the popular online blogging platform WordPress made perhaps the most ironic statement of the afternoon.

Another deterrent is that the counter notice form itself` – many users need to consult a lawyer before completing and submitting the form, and most don’t have the time or resources to do that.

Mr. Sieminski should try replacing the term “counter notice” with the term “DMCA notice.”  Just imagine what it’s like for indie filmmakers, musicians, photographers, etc. who find their work appropriated (usually for profit) online.  As Ms. Schneider pointed out in her testimony, the system is actually weighted against the content creator:

The takedown procedure should be more balanced. I am certain that most of my fans who upload my music have no intention of harming me – and probably no
knowledge that they are doing so. But to upload my music on most sites, one simply has to click a box saying they acknowledge the rules. On the other end of the transaction, I, the harmed party, must jump through a series of hoops, preparing a notice for each site, certifying documents under penalty of perjury, and spending hours learning the sites’ unique rules for serving the notice. Owners should have a more streamlined and consistent process to take content down.

Need more proof?  Well, if you haven’t done so already, take a look at the video I posted at the top of this piece documenting the more than 56,000 download links and streams we sent out to remove pirated copies over several months in 2010 after our film’s release.  Our DMCA story is not atypical.  Every day musicians, filmmakers and other creators around the world are spending time they could be using more productively, sending out DMCA takedown requests.   What about the “time and resources” of the content creators whose work is stolen and monetized by thieves?  Takedowns will be a part of any fix, but we must figure out a better way to create a balanced approach that doesn’t necessitate the need for an sending a seemingly endless cycle of notices to cyberlockers and search engines.

The time has come to fix the broken DMCA and create a system where creators can flourish– and the wealth of content they create can be enjoyed, and sustained, by consumers throughout the world.