Does Notice & Takedown for Copyrighted Material Work?

Yesterday, the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet continued the conversation about copyright reform. The subject yesterday was on Section 512 of Title 17, the Digital Millennium Copyright Act’s (DMCA) notice and takedown provisions.  The hearing yesterday was to discuss the concerns and continue the conversation about what is and what is not working with Section 512.

Section 512 was an amendment to the Copyright Act of 1976.  Section 512 provides certain safe harbors which limit copyright liability to service providers which have content uploaded to them.  In very plain terms, service providers meaning websites such as Yahoo, Facebook, Pinterest, YouTube and eBay.  When enacted, this section served an important purpose of encouraging growth of the internet.  However, the time has come to revisit this section.

As Chairman Bob Goodlatte pointed out in the hearing yesterday, the purpose of Section 512 served two overarching policy goals.  The first, it allowed good faith service providers to continue to operate and provide creative content without risk of liability.  The second is that Section 512 gives copyright owners a way to quickly remove online infringing content without litigation.

One of the main points demonstrated how the notice and takedown scheme that now exists under Section 512 does not mean takedown forever.  Testifiers to the committee explained it was much like the carnival game wack-a-mole.  Usually, if there is infringing material, it is located on many legitimate sites.  There is also not a way to send many notices at one time.  Finally, while the material may come down for a short amount of time, it usually does not stay down.  In other words, the takedown is not a permanent takedown, but rather a mild disruption.

I too have experienced the frustration of requesting thru the takedown notice procedure on a popular website.  I had to go thru each individual infringement and report it one-by-one only to see the material appear later.  For a great short film showing the frustration creators of work experience when getting their content removed, watch below:

Testimonies also called for and encouraged service providers to monitor the content placed on their websites.  To some creators, it is not enough for the service providers to merely respond and takedown the material when it is pointed out to them.  Service providers should take a more active role by way of monitoring and adopting technical measures to prevent copyrighted material from ever being uploaded.

Musician and GRAMMY® Award Winning Composer and member of The Recording Academy’s New York Chapter Board, Maria Schenider explained the burdensome task of copyright owners having to police their own work with only the hope of removal for a short time, rather than indefinitely.  “We are slowly, as a community, coming to the conclusion that all this exposure is not coming to us in money. Once somebody sees us all over YouTube in a dozen different performances, they aren’t coming to our website and buying the record.”

She continued by making the astute statement, “The DMCA creates an upside down world in which people can illegally upload my music in a matter of seconds. But I, on the other hand, must spend countless hours trying to take it down, mostly unsuccessfully.”

Finally, Sean O’Connor Professor of Law at University of Washington School of Law made the most compelling statement, albeit not the crux of his points.  I think it speaks to the root of the copyright infringement problem.  The statement is directly related to changing the social discourse and how copyrighted material on the internet is viewed.

He stated, “Because copyright infringement is so rampant, and so many websites are facilitating it, entrepreneurs question their attorneys’ credibility on the law. I cannot tell you how many times a web entrepreneur has asked me and other internet attorneys I know “are you sure about that?” The follow-up to our affirmative answer on the point of copyright law is “but [famous company x] is doing it; their lawyers must think it is OK.” I am now old enough to remember this line of questioning from my start-up clients when “famous company x” was Napster, and then Grokster. And we all know how that ended.”

In order to change the social discourse, something more than simply responding to requested takedown notices should be required.  These websites such as Google and YouTube make very real dollars from advertisement.  They have skin in the game.  Service providers, especially the social media ones, do offer a wonderful service of exposure of creative works.  However, to put the entirety of the burden on the creators, seems unfair and takes time away from them doing what they do best – creating.  There should be more incentive for these service providers to put technologies in place and serve as more of a gatekeeper of getting wrongly posted content out there.  Surely they are smart enough for that.  Right?

To hear the entirety of the hearing from yesterday, please go HEREFor further support of my position read this about Examples of DMCA Abuse from one of my favorite blogs CopyhypeIf you want to read an alternative view to mine, check out the Slate article form earlier this week titled Hollywood’s Copyright Lobbyists Are Like Exes Who Won’t Give Up.  

What do you think about the current takedown scheme and the allowed safe harbors for service providers?  Take part in the conversation in the comments section below and Stay Tuned In!

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One thought on “Does Notice & Takedown for Copyrighted Material Work?

  1. Pingback: Do Meerkat and Periscope Apps Commit Copyright Infringement? | Statute of RyAnne

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