Rethinking the Balance of the DMCA

Last week, the U.S. Copyright Office (USCO) released its long-awaited report on Section 512 of the Digital Millennium Copyright Act (DMCA).

Best known as the safe harbor provisions of the DMCA, these are the provisions that create the notice-and-takedown system that’s dominated the copyright landscape in the U.S. These provisions grant providers such as YouTube and Facebook freedom from legal liability and gives rightsholders the ability to quickly remove allegedly infringing work from the internet.

It was a balance that was supposed to ensure both that providers are allowed to thrive and enjoy legal certainty and creators could enforce their rights effectively. However, the USCO was tasked with finding out if that balance was working out some 22 years later. Ultimately, it found that it wasn’t.

As someone who has been actively sending out DMCA notices for over 20 years, almost the entire run of the DMCA, I’ve watched firsthand as the way the system works has changed. The balance was never perfect but it’s gotten progressively worse. This is largely due to roadblocks and complications set up by providers that discourage DMCA notices while doing little to protect users against false notices.

The DMCA needs to change and, while the USCO report is short on actual concrete advice. Many of the problem areas it highlights are ones that come from my personal experience and the experience of others.

To me, the USCO’s report isn’t perfect, but it does get to the heart of some of the DMCA’s worst problems and the controversy over the report doesn’t seem to give the USCO enough credit for the care it put into the report.

A Strange Controversy

At first blush, the controversy over the report seems to be out of place. The USCO is not a legislative body, the report does not recommend any radical changes to the laws and, in truth, offers few firm proposals at all. The USCO is not a lawmaking body, it’s objective is to point out areas of issue and ask Congress to clarify language, check if the intended balance is present or simply highlight points of contention.

The controversy, however, stems more from what is not in the report than what is in it. Many believe the USCO should have taken the DMCA to task for fair use issues and false takedown notices. While both of these things were addressed, the USCO encouraged no action at this time on fair use (instead it asked Congress to watch the fallout from the Lenz case) and called for stiffer penalties for both false takedown notices and counter-notices.

Many also took issue with the fact that the public at large was not listed as a stakeholder in the report. That view, however, was well dissected by David Newhoff, who pointed out that the public’s interest lies in both sides thriving. The public is best served when creators can create and providers have certainty. The safe harbor provisions are a balancing act between online service providers and creators, the public has a stake in both.

A good balance has the potential to help everyone. It means fewer notices, especially fewer false ones, new content becomes viable on the internet and service providers get to thrive. However, as the report found, service providers were largely happy with the DMCA while rightsholders were much less so.

This is rarely the sign of a balance working as intended. If a good compromise leaves everyone unhappy than this is, at best, half of a good compromise. Some of the issues were baked into the DMCA from the start, others arose as the internet changed. It makes sense for the USCO and Congress to look at updating the law and the flaws the USCO pointed to are a good place to start.

How the Internet (and the World) Changed the DMCA

The internet does not look the same as the internet in 1998. Many of the services we use every day were literally unimaginable 22 years ago. For example, if you had told me in 1998 that, in just 20 years, we’d be using high-speed cellular networks and phones with massive screens to watch short videos of people dancing I would have probably looked at you like you’re crazy.

In those 20+ years, the internet has also become more key for commerce, in particular when it comes to creative works. CDs and DVDs have given way to streaming, both physical books and ebooks sold online and the list goes on.

However, when the DMCA was drafted it only listed four types of online service providers, only two of which had to deal with the notice-and-takedown system. Those two are hosts and search engines.

Through the courts and just time itself, the definition of a host has been expanded to cover everything from hosts like GoDaddy, which charge users a fee to host content on their behalf, to online marketplaces like Amazon, where Amazon gets a direct cut of every sale. These are very different businesses with very different implications for rightsholders, yet they are treated the same under the law.

Likewise, the means of sending DMCA notices has changed. Hosts are increasingly using and even requiring complicated forms for filling out such notices. While this can actually help rightsholders if done well, many make the forms deliberately obtuse. The USCO directly called out Facebook and Google in this area.

Finally, the original law made it pretty clear that service providers should have two ways to gain knowledge of an infringement, directly through a DMCA notice and through “red flag” knowledge. However, the latter has been whittled by the courts into meaninglessness. The USCO also makes note of that in its report.

In all of these cases, as well as several others in the report, the USCO makes no specific recommendations but simply asks Congress to ensure that this is what they intended. There are no firm plans here, just an acknowledgment that the internet and the legal climate have changed and Congress needs to revisit these issues to ensure that they are working as desired.

The USCO ultimately is right. The DMCA is a law that needs regular maintenance and, for all of the handwringing, the report doesn’t really call for anything drastic, other than pointing out the areas that need to be looked at.

In the end, the USCO is correct about all of these areas. Whether they need fixing or not is for Congress to decide, but they certainly need to be looked at closely.

Areas Where the Law Failed

There are two key areas that the USCO points to where the law itself failed from the outset and both contend with false notices and counter-notices.

The first is the timeframes. Though the USCO liked the flexibility the law gave service providers in removing suspected infringements, it agreed that timing of the counter-notice process was bad for both sides.

Currently, if you file a counter-notice to a DMCA notice, the service provider must wait 10-14 days before restoring the content. As the USCO noted, that is both far too long for legitimate speech to be offline and far too short for a rightsholder to take the next step, which is to go to a federal court and file a lawsuit.

The USCO suggested that Congress find an alternative way for resolving such disputes but, once again, didn’t say anything about what that system would look like.

Second, the USCO said that the legal repercussions for filing a false notice or counter-notice was not severe enough to act as a proper deterrent. There, they flatly suggested raising the damages (though not by what extent).

These were both areas where the original law failed to achieve its function and the USCO is once again right to call them out as areas to fix. Once again though, it’s impossible to know if the fixes are any better at this phase, but the USCO isn’t wrong for pointing these issues out.

The next steps are what is most important and everyone should be paying close attention to what comes from Congress over the coming months and years.

Bottom Line

There’s much, much more to say about this report. So much so that I removed nearly half of this post before publishing. However, I have a feeling that I’ll have a lot of time to say it down the road.

After all, we are very early in the process of DMCA reform. This report is an early first step and, at most, it provides an indication of the direction the wind is blowing. It says little about where we will actually end up.

It will likely be quite some time before we have firm proposals for updating or fixing the DMCA and, even then, they will likely change and shift as they wind through the political process. That assumes, of course, that such reform happens at all.

In the end, this could all be a tempest in a teapot. A report that, for all of the effort that went into, gets lost in the legislative shuffle. It could also be one of the most important reports in modern copyright history. The next steps will determine that.

So stay tunes, there’s undoubtedly a LOT more to discuss here.