The Future Of The DMCA (And How It Affects Your Copyrights)

You may have recently heard about a big to-do in Washington concerning the DMCA (Digital Millenium Copyright Act). Recent hearings evaluating the DMCA’s copyright infringement notice and takedown procedures have taken place, and it’s a pretty interesting debate.

Essentially lawmakers are trying to decide if the onus to police copyright is equally spread among internet service providers (like Google, Amazon, and Comcast), copyright owners (like your band, your friend’s band, and your bass player’s silent film project), and Internet users (basically everyone who isn’t Amish).

Right now the takedown system works like this:

1) Copyright owners become aware of an infringing digital use*.
2) Copyright owners contact the service provider pointing out the infringing use and including proof of copyright ownership.
3) Service providers are compelled to remove or disable access to the material, and notify the infringing party of its removal afterward.

Service providers can also become aware of infringing uses on their own.

Unfortunately this procedure leaves grey area which is currently being exploited – this is somewhat hilariously dubbed as the “whack-a-mole” problem:

The “whack-a-mole” problem is when an infringing party’s material is removed, only to be posted again by another party to the same service (the biggest violators of this are piracy sites).

Other issues with the DMCA include:

• Fraudulent takedown notices (like a company that used fake testimonials on their website then submitting a takedown notice for screenshots of the fake testimonials in a blog’s online expose about them)
• The impact of takedown notices on freedom of speech (like when a doctor submitted a takedown notice to a website for critiquing his bedside manner).

It seems there are two main arguments at play in these DMCA hearings:

1) The DMCA has worked well and will continue to work well
2) As it stands, the system needs to include new legislation that prevents exploiting loop-holes

Argument 1
Backed by the gigantic powerhouse Google. You can read their full testimony to congress here, but I can dumb it down and sum it up like this:

Google thinks the system works as well as any system can, and touts their measures of going above and beyond referencing their Content ID system (which allows users to fingerprint their material, then set default responses to potential infringing uses on YouTube).

The number of takedown requests Google has fulfilled has grown exponentially and they are concerned about legislation which would require them to prevent re-posting of previously identified works. The search engine giant claims this would be impractical to enforce (read: costly and time consuming) and would limit speech.

Instead, they propose looking for new ways to allow copyright owners to monetize these infringing uses (if the owners so choose).

Argument 2
There are many potential theories about how to increase digital copyright vigilance. Some of them include:

• Allowing content creators to essentially create a “do not distribute” list – thereby banning content from being uploaded at all
• Creating a system which puts some responsibility on the internet user to prove they are using material legally
• Create a “takedown and stay down” system which includes legislature to limit content from being re-posted after its initial takedown
• Remove Safe Harbor clauses for companies the turn a blind eye to infringement (or that don’t monitor for infringement in the first place)

For small copyright owners like indie musicians it seems tough to choose a side.

On one hand you have Google, who I think actually does work hard to try to provide realistic solutions to copyright infringement but clearly has interest in advertising revenue from piracy sites and revenue from their various services. Revenues would definitely be affected by a more strict DMCA, and certainly require a lot more time.

But on the flip side, if legislation is created to try to prevent all infringement how would that be monitored, and how long would it be until someone figured out a way to circumvent the technology or the legality of it? Can we also realistically expect the average internet user to have a good grasp of what is ‘fair use’ and what isn’t?

For certain the DMCA is in flux and something does need to be done about “whack-a-mole” without inhibiting freedom of speech.

But as it stands for an indie musician — it looks like this may not even effect you until you’re a YouTube sensation, platinum recording artist, or hit songwriter. So focus on getting those big wins first. Then, when you’re huge enough for this to matter, you’ll know it’s a very good problem to have!