United States: Highlights Of Digital Millennium Copyright Act Congressional Hearings

Last Updated: April 10 2014
Article by David A. Kluft

On March 13, 2014, the Judiciary Committee of the United States House of Representatives, through its Subcommittee on Courts, Intellectual Property and the Internet, held hearings regarding the copyright infringement notice and takedown procedures set forth in 17 U.S.C. § 512, the Digital Millennium Copyright Act. The focus of the discussion concerned whether the DMCA fairly allocates the burdens of copyright enforcement and administration of the takedown process among copyright owners, internet service providers and internet users. Underlying the discussion was also the desire to balance the exclusive rights of content creators with the First Amendment rights of internet users or, as Representative Blake Farenthold (R-TX) put it, "I want to respect your copyright but I also want some music on my cat video."

Representative Bob Goodlatte (R-VA) introduced the hearing by identifying three issues of particular interest to him: (1) the "whack-a-mole" problem copyright owners face, whereby infringing material that has been taken down reappears almost immediately on the same website; (2) the impact of takedown notices on fair use and the First Amendment; (3) the problem of fraudulent takedown notices.

Following is our summary of highlights from the witness testimony:

Professor Sean O'Connor, University of Washington School of Law

Professor O'Connor testified about the "relentless reposting of blatantly infringing material" after a takedown notice has already been sent, which has significantly increased the overall volume of takedown notices and the concomitant administrative burdens. At the same time, internet companies have no incentive to monitor or police content until they receive a takedown notice, in part because having "red flag" knowledge of potential infringement can cause a forfeiture of the DMCA safe harbor. Professor O'Connor proposed two ways to reduce the volume of takedown notices: (1) establishment of a "notice and stay down" procedure, either voluntarily or by legislation, to identify infringing material the first time it is the subject of a takedown notice and prevent its subsequent reposting; and (2) in order to encourage internet companies to monitor for copyright infringement, amend the DMCA so that the safe harbor can be lost by a company that is "willfully blind," i.e., that it has an institutionalized policy prohibiting or discouraging the investigation of copyright infringement. Although courts are already applying a similar doctrine, the DMCA should define "willful blindness" in order to provide certainty to all players.

Professor Annemarie Bridy, University of Idaho College of Law

Professor Bridy, by contrast, testified that Section 512 has struck the right balance between the rights of copyright owners, internet users and internet companies. Perfect enforcement is not possible, but Section 512 facilitates a fair and workable enforcement regime in which the copyright owners and internet companies share the burden. The DMCA was intended to facilitate the global growth of the internet, and it has done just that. The administrative costs of takedown notices are decreasing with the expanding availability of automated takedown processes. Professor Bridy acknowledged that peer-to-peer networks create the biggest enforcement difficulties and were not a technology anticipated by the DMCA, the language of which exempts routing and transmission services. However, this problem has been in part addressed through voluntary efforts, such as the Copyright Alert System, by which copyright owners help internet companies identify repeat infringers. Additionally, peer-to-peer services are becoming less popular as legal alternatives continue to emerge.

Paul F. Doda, Global Litigation Counsel at Elsevier Inc.

Mr. Doda described his company's "futile attempt to keep pace" with repeat online copyright infringement. Elsevier issued over 20,000 takedown notices per month in 2013, many of them to rogue sites which in effect harbor infringement and on which unauthorized works appear over and over. He provided one example of a textbook that was uploaded 571 times to the same site. In order to reduce the number of takedown notices and instances of repeat infringement, Doda recommended voluntarily technical measures, in particular filtering technology to automatically remove content that "matches" the "fingerprint" of other content already known to be infringing. Such technology is already in use by Scribd and Google. Doda further recommended that Congress either require the use of such technology or incentivize its adoption by providing for injunctive relief against websites that refuse to adopt it and repeatedly repost the same infringing work. He also endorsed suggestions by the Association of American Publishers regarding the streamlining and automation of the takedown notice submission processes.

Katherine Oyama, Senior Copyright Policy Counsel at Google Inc.

Ms. Oyama testified that the provisions of the DMCA, and the legal certainty they provide, have been an effective and important foundation to the success and growth of the modern internet and e-commerce. The amount of material copyright owners are seeking to have removed from Google has grown, in part due to streamlined takedown procedures, from 3 million allegedly infringing items in 2010 to 230 million in 2013. Despite this growth, Google has been speeding up its takedown response time, which now averages less than 6 hours. Google's position is that the best way to fight piracy is not to increase takedowns but to find compelling legitimate alternatives that allow copyright owners to monetize content rather than have to repeatedly remove it. Towards that end, Google has implemented Content ID technology that allow rights holders to track, monetize or block the use of their work. At the same time, Google has taken steps to discourage "rogue sites," including by cutting off Google advertising revenue and by calibrating the Google search algorithm so that repeat valid takedown notices will tend to lower a site's search result ranking.

Picking up on the concept of Content ID, Representative David Cicilline (D-RI) suggested that, if the right filtering technology exists, the "whack-a-mole" problem of repeat posting could be solved by amending the DMCA to give internet service providers the affirmative duty to prevent the reposting of material that had already been identified in a valid takedown notice (i.e., take down and stay down). Ms. Oyama "underst[ood] how that would sound attractive," but stated that she did not agree with the proposal because it would be impractical to enforce and because it would chill online speech.

Maria Schneider, Grammy Award Winning Composer

Ms. Schneider testified that the present DMCA takedown system is "broken" and that it "creates an upside down world" in which she, as an individual artist, is saddled with the impossible task of policing the internet and spending "countless hours" issuing takedown notices. Schneider proposed three solutions: (1) that content creators be able to prevent unauthorized uploading before infringement occurs, through the use of technologies like Content ID, thus effectively creating a list of content that cannot be uploaded (which she analogized to a "do not call" list); (2) shifting some of the monitoring burden to uploaders to show that the content they are uploading is not infringing; (3) encouraging systems that prevent repeat "whack-a-mole" infringement of the same work.

Paul Siemenski, General Counsel of Automattic Inc. (WordPress)

Mr. Siemenski testified that, while the DMCA "process works well overall," his company has seen firsthand the shortcomings of the system, which include (1) the abuse of the DMCA takedown process; (2) the heavy compliance burden on companies who try to fulfill their DMCA obligations in a responsible manner; (3) the lack of any recognition of fair use in the DMCA; and (4) that the counter-notification process does not work for most internet users because it is complicated, intimidating and requires them to reveal personal information.

Mr. Siemenski's comments on the abuse of the DMCA takedown process were particularly interesting. We've previously written ( here and here) about WordPress' unusual and commendable decision to fight back against clear abuse of the DMCA, in particular where it involves attempts to censor undesirable speech. For example, WordPress joined blogger Oliver Hotham in a suit against "Straight Pride UK," a group that was using the DMCA to censor Hotham's article on gay rights. Siemenski provided additional examples of abuse by individuals and corporations alike, including:

  • "A medical transcription training service using forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog exposing the scam"
  • "A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper"
  • "A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices"

Representative Howard Coble (R-NC) asked Mr. Siemenski whether Section 512(f) (which provides for awards of damages and attorneys' fees against those who make material misrepresentations in takedown notices) has been effective in deterring abuse of the takedown procedure. Mr. Siemenski felt that the provision had not been effective. Suits are rare under Section 512(f) because of the relative imbalance of power and resources between those who typically send takedown notices and those who typically receive them. Both Mr. Siemenski and Professor Bridy suggested adding a statutory damages mechanism for DMCA takedown abuses under Section 512(f).

To view Foley Hoag's Trademark and Copyright Law Blog please click here

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