The Digital Millenium Copyright Act‘s notice-and-takedown safe harbor is rapidly becoming obsolete. The safe harbor, aka Section 512 of Title 17 of the U.S. Code, is the subject of a hearing tomorrow in the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet.
The safe harbor limits the liability of online service providers for copyright infringement if they remove infringing content upon receiving notice from the copyright owner. Safeguards are built into the law to protect against the possibility of erroneous or fraudulent notifications.
The problem is the safe harbor was designed for the Internet as it existed 15 years ago, before broadband. Most people did not access video over the Internet when Congress enacted the DMCA in 1998. As the Federal Communications Commission concluded at the time,
Due to bandwidth and other limitations, this method of video distribution does not yet produce programming that is comparable in length, quality, or convenience to broadcast video. Before Internet distribution of video becomes competitive in the video distribution marketplace, significant improvement must be made in this form of delivery.
According to Bruce Boyden, in the first half of 2013, the member companies of the Motion Picture Association of America sent takedown notices for 12 million files, and the “same content typically re-appears within hours after it is removed” unless content filtering technology is employed. Citing data compiled by Google, Boyden observes that each month copyright owners as a whole send takedown notices for 6.5 million infringing files on over 30,000 sites.
This is way beyond anything Congress had in mind when it established the notice-and-takedown process. The current procedure is simply no longer adequate as a result of broadband that is becoming faster and cheaper all the time.
In their effort to make their most highly sought-after works just slightly harder to find, copyright owners are currently sending notices at an annualized rate of over 78 million infringing files. The expense of locating, identifying, and then sending a notice for that many files is so significant that even large companies must limit their efforts to only their most recent releases.
Rather then seeking new legislation, industry is working on a voluntary basis to combat online piracy. The Copyright Alert System, for example, is a collaborative effort between content creators and Internet service providers to educate consumers by sending notices when files may have been shared illegally. ” ‘It’s a non-punitive system’ that is ‘intended to be education-based,’ ” as Jill Lesser, executive director of the Center for Copyright Information, told The Hill in an interview.
Sites that exist primarily for the purpose of piracy or selling counterfeit goods and have no substantial non-infringing uses may require a more aggressive response. Payment processors such as MasterCard, Visa, PayPal, American Express and Discover are working with rights-holders to take the profit out of piracy by “diminish[ing] the ability of counterfeiters and [intellectual property] pirates to process online payments…”
Remarkably, voluntary industry-led initiatives like these are encountering some of the same blowback that previous legislative efforts for updating DMCA have encountered. An op-ed at Slate complains that users “certainly won’t be in the business development meetings where big companies are crafting ‘voluntary agreements’,” and “there will be no evidence in open court, no established processes, no published decisions, no opportunity to appeal.”
One thing that’s noteworthy not only about the op-ed in Slate but also about much of the opposition to every other proposal for combating online piracy and counterfeit goods is that the opponents have absolutely no helpful suggestions. They have failed to offer a single alternative.