Want To Tell The Copyright Office To Stop Abusive DMCA Takedowns? Here's How
from the join-in dept
So, today’s been DMCA 512 takedown day here at Techdirt. Today’s the day that comments are due at the Copyright Office concerning the effectiveness (or not) of the DMCA’s notice and takedown provisions. And, of course, no one’s entirely happy with the DMCA, but they’re unhappy in very different ways. We wrote about the legacy music industry whining that Google has built a successful service while they failed to adapt themselves. We wrote about Automattic reinforcing how DMCA takedowns are regularly abused to try to censor content (and how people are afraid to counternotice), and we wrote about our own filing, highlighting how the abuse of the DMCA process raises questions about how the current setup is Constitutional.
And, there are tons of other filings and comments flowing in, often from industry groups, written by lawyers. But it’s important that the Copyright Office hear from the public as well. So our good friends over at Fight for the Future have set up a wonderful website at TakedownAbuse.org that provides more information and helps you send your own comments to the Copyright Office about how DMCA abuse impacts you.
Also, the folks at Channel Awesome put together a great video that both details the problem and suggests some key points worth raising in any comment you send in (though, I take issue with his claim that this “flew under the radar,” since the comment period was announced months ago… but…).
Filed Under: copyright, dmca, dmca 512, dmca abuse, notice and takedown, takedowns
Comments on “Want To Tell The Copyright Office To Stop Abusive DMCA Takedowns? Here's How”
I told 'em.
Here’s what I said:
Hello. The DMCA notice process is heavily abused both to silence criticism and censor speech and in blatant disregard for the actual Act itself and requirements for verification of proper content “ownership”, lack of license or right to use (including fair use), and oftentimes no validity to the requested takedown target.
These create a chilling effect and are most often not challenged because of the potential liability of the challenger to statutory damages and the fight against a mega-corporation (or a shameless organization representing them like the RIAA or MPAA).
Our Constitutional rights are first and foremost protective of our freedom of speech and expression. The use of DMCA notices to take down content that people find objectionable, competitive, or otherwise take down for other censorious reasons violates our rights under the First Amendment. That in itself should lead to a change in the “burden” that someone sending such a notice has, and someone acting based on such a notice would have.
The lack of fact-checking, oftentimes issuing notice to content entirely unrelated to the sender’s own copyrights, a lack of ability to punish those who regularly abuse this process, and no penalty to repeat offenders all contribute to a broken process.
HOW TO FIX THE DMCA NOTICE PROCESS:
1. Because aspects of copyright law (such as fair use and other exemptions) require a human being to verify the use to see if it’s a violation of the Copyright, require a human to verify and swear under oath to its authenticity. Today’s automated bots send out a fake electronically “signed” document that has no force of oath.
2. Someone who knowingly sends a notice for content for which either
a. they do not have the copyright or copyright holder’s permission in writing to represent them and their rights
b. is not infringing (either through fair use or other reasons)
c. does so more than once in 30 days
will have to pay a penalty and will be prohibited from issuing takedown notices for 90 days.
3. Someone who uses the DMCA notice process to censor speech shall have to pay a penalty and will be prohibited from issuing takedown notices for one year.
4. People would be allowed to challenge and contest the DMCA notice without subjecting themselves to any additional liability.
ADDITIONALLY:
5. There is no requirement that anyone ever “take down” content. The only requirement is that when served a Notice the party will evaluate it and take the appropriate action –as they see fit– not the DMCA notice maker.
6. There is no requirement that once something is removed anyone must look for other similar data and impact it as well.
7. There is no requirement that once something is removed it must “stay down”.
The Internet is a great medium for the people of the world to share information. The United States not only pioneered the Internet technology but contributes heavily to Internet culture. Our emphasis on freedom of speech that is Constitutionally guaranteed sets us aside from foreign regimes that shutter their people’s access (China) or prevent them from using social media (Turkey) or punishes them harshly for downloading songs (Iran). It’s time we took our antiquated idea of allowing a few censorious DMCA thugs to take down content without human review.
Best regards
Ehud Gavron
Tucson AZ US
Re: I told 'em.
Excellent, except that it ties the penalty to an individual, and an organization could easily round robin their employees right down to the janitor, and never miss a beat.
Re: I told 'em.
“heavily abused”
I think you have to take step back. There are millions of VALID DMCA claims made each month, and a handful of abusive claims. It would seem to be an over-reaction to try to ditch the system because of a few abusers.
Perhaps we can shut down the interstate system because some people drive too fat, and other use it to transport drugs. That would be effective!
Re: Re: I told 'em.
And at least 10% of them are bogus, more than 20% actually. And over 40% if you consider technical issues. You know, percentages escalate as numbers go up.
Perhaps we can shut down the interstate system because some people drive too fat
Oh yeah, make people walk and lose weight!
Jokes aside, a person speeding doesn’t impair anyone’s rights. At best it will be an issue when they cause an accident. And if you ask me, the number of traffic related injuries and deaths is big enough to be taken very seriously. But forbidding people from driving isn’t a way out. Likewise, you seem to be thinking somebody is advocating to dismantle copyrights but it’s hardly the case (although I think it should be dismantled the way it is now). The original comment just argues for fixes that would balance the system and reduce both the abuse and the collateral damages. It would be like advocating for better patrolling on roads so speedsters will have more chances of being caught so people would think twice before speeding.
Re: Re: I told 'em.
Perhaps we can shut down the interstate system because some people drive too fat, and other use it to transport drugs. That would be effective!
Funny story, that’s what the RIAA said about CDs.
Re: Re: I told 'em.
Still ignoring the point I see.
For the dozenth time: do you think ANYTHING should be done about DMCA abuse?
Also contributed
Here’s my submission, focussing more on the long-term:
Hello Lawmakers,
I’m not from the US, but this is such an important issue that I feel compelled to write to you now. I don’t think it’s hyperbolic to say this is going to affect how we approach the future of global culture. Where once there were distinct fields sparsely populated by career professionals, now almost anyone can be a ‘creator’ and share their work with the world.
Culture does not exist in vacuum, ideas do not spring forth without prior influence; people build upon the work of others by copying, transforming and progressing. Once this new content is released into the world, others may do the same with it. Limiting this through copyright has been a useful tool in the past to incentivise the production of new works, but over time is increasingly at odds with how people actually create. Re-evaluating copyright itself is for another time, but the first stepping-stone on that path is before you now: updating the Digital Millennium Copyright Act (DMCA) to be sensible in 2016.
Your Supreme Court has regularly mentioned that Fair Use is a ‘safeguard’ that allows copyright law to be compatible with the First Amendment. It is therefore incredibly worrying that the DMCA notice-and-takedown process is knowingly being abused on a regular basis to remove content that is actually covered by Fair Use rights. The reasons for this abuse are manifold, but they all stem from the same problem: there are no repercussions for doing so.
US-based companies such as YouTube, Facebook, and Twitter need the legal tools to be able to fight back and actively discourage those who would seek to remove people’s freedom of expression. Introducing such tools into the DMCA is paramount to solving this problem.
Please, lead the way in protecting the future of human culture. The rest of the world is watching very closely to see where you take this.
Yours sincerely,
Duncan Hemingway
Already did earlier today.
Mr Gavron
Mr. Gavron,
Given that I will never have your eloquence or far farsightedness, I was wondering if you would give me one time permission to copy your outstanding comments on DMCA takedowns.
The only change that I would make would be that any individual or group found to have submitted 6 DMCA violations as you describe them would permanently lose all privileges to submit DMCA take downs in the future, and be barred from the Internet for life.
Thank you for your consideration,
Groaker
Re: Mr Gavron
Thanks for the compliments! My text is available for all to use 🙂
Ehud
dmca takedown tactics
Stop enabling loophole lawyers to exploit for the sake of money hungry and lazy monopoly crazed big business vrs everyone else. That means you as well. No one thinks that this is there problem until it happens to them or their families and they become just one voice in a scary legal kangaroo court system based rules created during it’s birth. All the parties involved know that it’s wrong, but do it anyway because “It’s not there problem!” Until it is and it’s too late to do anything about it because “THEY’RE” using the same unethical and bullying tactics.
My submission
I’d post mine,… but it’s a bit long for here (2900 words)
So it’s on scribd https://www.scribd.com/doc/306689571/Comments-on-the-DMCA-and-Section-512