The Failure of the DMCA Notice and Takedown System | CPIP

Section 512 of the Digital Millennium Copyright Act will be turning 15 years old soon, and it’s showing its age. Its design belongs to a different era. Like a 15-year-old automobile, it no longer runs as well as it used to. It can’t keep up with the newer, faster vehicles on the road. Its users are beginning to look for alternative forms of transportation. Pieces of it have been wearing down over time, and ultimately something is going to break that outweighs the cost of replacement.

That time may be now: the notice-and-takedown provision of Section 512 is straining under the weight of a blizzard of notices, as copyright owners struggle to abate the availability of infringing copies of their most highly valued works. The tool is no longer up to the task. Mainstream copyright owners now send takedown notices for more than 6.5 million infringing files, on over 30,000 sites, each month. Printing out the list of sites for which Google receives takedown requests in just one week runs to 393 pages. And that just counts the notices sent to Google; duplicates of many of those notices are sent to the site hosts and to other search engines. For example, over a six-month period ending in August, the member companies of the Motion Picture Association of America sent takedown notices for 11,996,291 files to search engines, but sent even more notices—for 13,238,860 files—directly to site operators. (See chart below.)

The problem is that notice-and-takedown has been pressed into service in a role for which it was never intended. Section 512 was originally designed as an emergency stopgap measure, to be used in isolated instances to remove infringing files from the Internet just long enough to allow a copyright owner to get into court. That design reflected the concerns of its time. In 1998, the dawn of widespread public use of the Internet, there was considerable anxiety about how the law would react to the growing problem of online infringement. Online services worried that they might be held directly liable as publishers for infringing copies of works uploaded by users, despite lacking any knowledge of those copies. Section 512 addressed these concerns by giving service providers a safe harbor to protect them from liability for unknowingly hosting or linking to infringing material.


One thought on “The Failure of the DMCA Notice and Takedown System | CPIP

  1. This article is very accurate yet it underscores the extent of the damage. You Tube, for example was built on the revenue generated from copyright content allowed via the “Safe Harbor.” Consider that every viewing is a revenue gain for the host site, while at the same time provides a revenue loss for the content creator. The Viacom -You Tube court cases had shown that You Tube knew and encouraged users to upload copyrighted content. Internal You Tube emails also showed that the vast majority of traffic was copyright. And traffic is revenue. In a just world, You Tube would be owned by the musicians and other performing artists who’s work turned it into a multi billion dollar enterprise.

    Besides direct losses, consider the indirect immediate and long term losses to creators. For the last 15 years, people have become accustomed to the understanding that any musical or video work is available at no cost, 24 hours a day. That means that the accepted going rate is $0 for any musical or video work. That means that any legitimate provider of streamed or down loadable content will have difficulty charging anything. It also means that musicians will have no bargaining power in courts that are attempting to set royalty rates for such things as streamed internet music when market rates are distorted severely by widely available free music via the “Safe Harbor.” And even if the safe harbor is revoked – as it rightly should – it could take decades before market perception follows, leaving long term losses heaped on the already beleaguered creators.

    Our economic and legal system is built on the concept of property rights and the right to engage in contract. The copyright clause in our constitution clearly extends those rights to providers of intellectual property. The “Safe Harbor” is unprecedented in the denial of those rights.

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