Earlier today, we wrote about a push by copyright maximalists for a new censorship regime that they call "notice and staydown" as a sort of replacement for SOPA. The idea would be to shred the existing DMCA safe harbors (which give service providers protection from legal liability if they take down content upon notification by the copyright holder that it's infringing), and make some dangerous requirements that service providers would then have to proactively police their sites to guarantee that no other versions of that content ever show up (even if the other versions may be legal). But, if we're looking at the notice and takedown provisions of the DMCA, we should really be exploring how much damage they do. Rather than "notice and staydown" or even "notice and takedown" it's time we move to a much more reasonable "notice and notice" system.
Thankfully, Automattic's (makers of WordPress) general counsel, Paul Sieminski's testimony at yesterday's hearing highlighted this problem in a big way, pointing out that Automattic sees plenty of DMCA takedown abuse.
At Automattic, we've seen an increasing amount of abuse of the DMCA's takedown process. The DMCA's takedown process provides what can be an easy avenue for censorship: simply send in a DMCA notice claiming copyrights in a piece of content that you don't agree with. Regardless of whether you own the copyright, the service provider that hosts the content must take it down or risk being out of compliance with the DMCA.
Recent cases of abuse have been well documented. For example, we recently filed an amicus brief in support of Stephanie Lenz's lawsuit against Universal Music Group. In that case, Ms. Lenz posted a home video of her young child dancing in their family kitchen to a song by the artist Prince. Soon after posting, Universal Music (Prince's record label) sent a DMCA takedown notice to remove the video, claiming it infringed on their copyright in the music playing in the background.
In our amicus brief, we, along with the internet companies who joined us, outlined many other recent examples of misuse of the DMCA that we've seen on our respective platforms. For example:
A medical transcription training service using forged customer testimonials on their website submitted a takedown for screenshots of the fake testimonials in a blog post exposing the scam.
A physician demanded removal of newspaper excerpts posted to a blog critical of the physician, by submitting a DMCA notice in which he falsely claimed to be a representative of the newspaper.
A model involved in a contract dispute with a photographer submitted a series of DMCA notices seeking removal of images of the model for which the photographer was the rights holder.
An international corporation submitted DMCA notices seeking removal of images of company documents posted by a whistleblower.
A frequent submitter of DMCA notices submitted a DMCA notice seeking removal of a screenshot of an online discussion criticizing him for submitting overreaching DMCA notices.
Sieminksi also discussed Automattic's recent decision to sue over two particularly egregious abusive DMCA notices -- and to highlight how there's really very little in the way of recourse for those whose legitimate content is taken down over such abusive tactics.
And this is not a small problem. The same day, the folks over at CDT released a detailed report on meritless DMCA takedowns of political ads, noting how frequently the DMCA is used to censor important political speech. Pointing out that these takedowns clearly have nothing to do with copyright and everything to do with censoring political speech, CDT notes just how damaging the DMCA has become on this front.
In addition to that, Ed Black from CCIA published a piece about how important it is to stop the abuses of DMCA takedowns, highlighting how it's often used to attack competitors or content someone just doesn't like:
Congressional inquiry could shed light on how DMCA takedown tools have been abused. For example, academic researchers found a large number of cases in which businesses targeted competitors, such as one case identified in the recent Google Transparency Report where a driving school sought its competitor's homepage to be disappeared from search results, on the basis that the competitor had copied an alphabetized list of cities. Other examples of attempted takedowns involved an employer targeting blog posts by a disgruntled employee and a movie studio seeking to suppress a review.
DMCA abuse has also stifled speech over unfavorable interviews, embarrassing news stories, and political campaign videos. Some rights-holders fired multiple takedowns at an unflattering documentary about their legal war with the Pirate Bay. HBO even sent takedowns over lawful open source software, and just last week, it was reported that the DMCA was used to try to take down publicly available facts (which likely aren't even protected by copyright).
Finally, Public Knowledge's Sherwin Siy has a great opinion piece at Wired, in which he talks about how the "notice and takedown" system was designed as a "compromise" between copyright holders and service providers, but completely left out the people that copyright is supposed to benefit the most: the public:
This is not a two-sided issue. By only looking at copyright holders and online services, we neglect the interests of the most populous sector involved in copyright law: the public.
The safe harbors essentially are a safe harbor for online services, which host users' content like YouTube or Facebook. If a user of those services uploads something that infringes copyright, the host's liability is limited so long as it acts promptly to a takedown notice from the copyright holder. Each side gets something: the copyright holder gets a rapid removal of the infringing content, and the host gets safety from a potentially costly infringement lawsuit. But what happens to the users? Their uploads have been removed, and they're still potentially on the hook for massive statutory damages in a lawsuit.
We've discussed in the past how there are serious First Amendment concerns about "notice and takedown" provisions, in that they use government pressure to stifle free speech, placing huge potential liability on companies who don't disappear content based solely on the say-so of a single party.
And the simple fact is that there are better systems that would minimize the censorship risk. A basic "notice and notice" system is greatly preferable to a notice-and-takedown system (and, of course, the ridiculous notice-and-staydown). Under a notice-and-notice system, after receiving a notice, the service provider alerts the actual person who uploaded/created the content that is being targeted as infringing, providing them an opportunity to respond prior to taking down the content. There could be a set time, after which a lack of response would lead to a takedown. That way, most legitimate content is not censored, and the power of the DMCA safe harbors as a tool for censorship is greatly limited. Actually infringing content still gets removed in a timely fashion. It's such a reasonable solution that it will never happen with this Congress.
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