By Shuyu Wang
The year-long review of the Digital Millennium Copyright Act (“DMCA”)[1] conducted by the Senate Judicial Committee IP Subcommittee continues to proceed in spite of the social and economic uncertainty brought by the global pandemic. The third hearing in a series, held on June 2, 2020, examined the effectiveness of the DMCA notice-and-takedown system in the 21st century.
Compared with the first two hearings in a series that were more academic in nature, the third one presented more practical aspects of the DMCA. Senator Thom Tillis started the hearing by recognizing that the Section 512 notice-and-takedown provision of the DMCA was a compromise between copyright owners and the emerging online service providers (“OSPs”). OSPs were supposed to follow certain criteria to curb online piracy in exchange for limited liabilities. However, Senator Tillis referred to the recent Section 512 report by the U.S. Copyright Office, which pointed out that “the grand bargain is no longer working.”[2] The great expansion of Internet platforms generates significantly more online activities, which has placed greater burdens on the creators and artists to police their copyrights. Senator Tillis acknowledged that fixing the current framework is not enough to cure the problem. He hinted of the possibility of developing an entirely new system to combat online piracy.
Content Creators: The Takedown System Does Not Work Meaningfully
The first panel began with the views of artists and authors. Famous musician Don Henley from the Eagles expressed his concerns for musicians that struggle to make a living as the enormous digital platforms facilitate millions of copyright infringements.[3] According to Henley, the balance sought at the birth of the DMCA has tilted greatly towards OSPs. As the digital marketplace has matured from the one from two decades ago, digital platforms continue to use the Section 512 safe harbors as a negotiation leverage to pay license fees that are “well below market.”[4] Currently, even when music creators flag infringing postings by sending notices to takedown one link, a dozen more pop up, and digital platforms continue to monetize and collect advertisement revenues from potentially infringing conduct.[5] Henley condemned the fact that OSPs, which are capable of overseeing and controlling the content on their platforms, choose not to enforce meaningfully against online infringement at the fear of losing revenue.[6]
Douglas Preston of the Authors Guild shared the concerns of Henley. Preston submitted that due to online book piracy, full-time authors have experienced a 42% drop in their writing income from a decade prior.[7] Both online shopping sites and social media platforms offer thousands of illegal e-books for download.[8] However, OSPs only need to take down infringing content in response to “specific notices” to take advantage of the DMCA safe harbors. Such notices require a specific address for each infringing item in order to trigger a meaningful takedown, resulting in a whack-a-mole situation for content creators to enforce their rights.[9]
Independent Creators Suffer More from the Unbalanced Burden of Enforcement
Content creator witnesses at the second panel further emphasized “how broken the DMCA is,”[10] especially for small businesses and independent artists. Kerry Muzzey of Kirbyko Music used YouTube’s Content ID tool as an example to show the inefficiency of the notice-and-takedown system. He explained that even when a Content ID helps to match and locate unauthorized uses across the platform, the system only grants a ten-day period to file a lawsuit, and a rightsholder bears all burden to collect evidence to prove infringement. By the time a takedown notice is enforced, an independent artist like Muzzey has been drained of all the energy to create content, and there is no adequate remedy for the monetary losses.[11]
Jeff Sedlik of Sedlik Photography echoed Muzzey, saying that the DMCA safe harbors have created an “untenable situation.”[12] He had to devote his time to either enforcing his copyrights, or to creating new works enduring the devastating impact of online piracy. He then proposed twelve suggestions to bring the DMCA back to its intended balance.[13]
Tech Industry: DMCA Is Still Working Well
The technology industry presented an opposite view from the content creators that the DMCA notice-and-takedown system still fulfills its role despite how the recent Copyright Office report suggests. Jonathan Berroya of the Internet Association expressed that the report fails to take into account the changing landscape of the creative ecosystem and the positive collaborations between creators and OSPs.[14] Berroya stated that OSPs have voluntarily created tools with greater flexibility to combat online piracy in different Internet sectors than the DMCA requirements.[15] Also, it is the content creators who have better knowledge to decide whether an online posting is infringing, and the Section 512 system provides OSPs with more data to develop content monitoring algorithms by empowering creators to file good-faith notices.
Besides, Berroya noticed that the “overwhelming majority” of online infringement takes place outside the US. Thus, the best approach for the US may be working with foreign governments to contemplate DMCA-like treaties, rather than refining the domestic copyright legislation.[16]
David Hansen of Duke University agreed that Section 512 generally works well for universities and libraries as both copyright holders and service providers.[17] To better promote the creation and dissemination of knowledge, it is better to have a system that allows lawful content to stay online unless there is a strong indication of infringement.[18] Nevertheless, the current notice-and-takedown system does not always work for this purpose. Publishers as stakeholders often make takedown efforts to remove content with pre-existing open access licenses, which can be very disruptive for authors.[19] Also, such takedown efforts often conflict with the educational fair use that is permissible under the U.S. Copyright Act.[20]
Changing the DMCA May Undermine the Whole Tech Industry
The second panel discussion supplemented the hearing with more evidence that the DMCA should remain the status quo to ensure the vitality of the technology industry. Abigail Rives of Engine argued that many big techs today cannot thrive without the DMCA safe harbors. If stricter monitoring obligations were imposed, startups today would suffer from the unaffordable compliance requirements, leaving the safe harbors with little value.[21]
Rives also pointed to the abusive use of the notice-and-takedown system, which can be “devastating” to startups. The current legal framework grants a two-week grace period to restore content after clearing an infringement allegation. Imposing an affirmative duty to monitor “would create new costs and risks that startups would be unable to bear.”[22]
Meredith Rose of Public Knowledge agreed to the destructive impact of abusive notices. She carried the discussion beyond the copyright regime, that digital platforms do not merely serve as plazas for sharing creative content; they are also places for socializing, for working, for receiving daily news, and for many other purposes. Requesting a stronger enforcement mechanism merely from a copyright perspective is exchanging a tank for a nuke.[23]
Rose went on to elaborate how the misuse of the DMCA notices can negatively affect free speech and access to broadband.[24] She cited a study showing that about one-third of the takedown requests were “potentially problematic,” and that 4.5 million of those requests were “fundamentally flawed.”[25] Hence, she concluded that the debate between content creators and OSPs should not happen in a vacuum, and the legislators should acknowledge other stakeholders’ perspectives to fully understand Congress’ intent to enact the DMCA.[26]
What’s Next?
As to a stronger enforcement mechanism that the creative industry has long been seeking, Henley and Preston both advocated a notice-and-stay-down system.[27] A stay-down system not only removes specific infringing postings, but also denies the infringer access to the platforms. Sedlik’s list also proposes similar suggestions for a stricter system to enforce against repeat infringers.[28]
Even though Berroya underscored the positive collaboration between creators and OSPs, Henley and Preston were frustrated by the experience seeking collaboration with big tech companies like Google.[29] Senator Blumenthal later commented that the old-fashioned collaboration methods do not seem adaptable to the modern development of digital platforms today.[30]
In the end, Senator Tillis reiterated that modernization of the DMCA notice-and-takedown system is possible. As the Senate has heard views from both the academy and the industries, we will continue to follow the DMCA review as it moves toward the reform drafting process.
[1] 17 U.S.C. § 512.
[2] Eileen McDermott, Third Senate IP Subcommittee Hearing on DMCA: The ‘Grand Bargain’ is No Longer Working, IPWatchdog (June 2, 2020), https://www.ipwatchdog.com/2020/06/02/senate-ip-subcommittee-hearing-dmca-reform-grand-bargain-no-longer-working/id=122124/.
[3] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Don Henley at 1), https://www.judiciary.senate.gov/imo/media/doc/Henley%20Testimony.pdf.
[4] Id. at 2.
[5] Id. at 2-3.
[6] Id. at 3.
[7] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Douglas Preston at 4) [hereinafter Preston Statement], https://www.judiciary.senate.gov/imo/media/doc/Preston%20Testimony.pdf.
[8] McDermott, see supra note 2.
[9] Preston Statement at 11.
[10] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Kerry Muzzey at 1), https://www.judiciary.senate.gov/imo/media/doc/Muzzey%20Testimony.pdf.
[11] Id. at 7.
[12] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Jeff Sedlik at 2) [hereinafter Sedlik Statement], https://www.judiciary.senate.gov/imo/media/doc/Sedlik%20Testimony.pdf.
[13] Id. at 3-4.
[14] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Jonathan Berroya at 2-3), https://www.judiciary.senate.gov/imo/media/doc/Berroya%20Testimony.pdf.
[15] Id. at 3.
[16] Id. at 7.
[17] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of David Hanson at 2), https://www.judiciary.senate.gov/imo/media/doc/Hansen%20Testimony.pdf.
[18] Id. at 3.
[19] Id.
[20] Id. at 4.
[21] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Abigail Rives at 20), https://www.judiciary.senate.gov/imo/media/doc/Rives%20Testimony.pdf.
[22] Eileen McDermott, Startup and User Reps Square Off with Independent Creators in Panel Two of DMCA Hearing, IPWatchdog (June 4, 2020), http://www.ipwatchdog.com/2020/06/04/startup-user-reps-square-off-independent-creators-panel-two-dmca-hearing/id=122189/.
[23] Is the DMCA’s Notice-and-Takedown System Working in the 21st Century?, Hearing before the Senate Judiciary Committee Subcommittee on Intellectual Property, 116th Cong. (June 2, 2020) (Statement of Meredith Rose at 6-7), https://www.judiciary.senate.gov/imo/media/doc/Rose%20Testimony.pdf.
[24] See Id. at 15-20.
[25] Id. at 3-4.
[26] Id. at 18.
[27] McDermott, see supra note 22.
[28] Sedlik Statement at 3.
[29] McDermott, see supra note 2,
[30] Id.
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