May 12 — Content creators and digital rights activists participating in a May 8 public forum said that the Digital Millennium Copyright Act‘s notice-and-takedown provisions should be made more efficient and standardized.
Speakers at a West Coast meeting of the Department of Commerce's Internet Policy Task Force suggested improving the operation of the DMCA notice-and-takedown system. Suggestions included streamlining how to seek removal of potentially infringing material and how to get material deemed not infringing reposted.
Sandra Aistars of the Copyright Alliance said that artists and small businesses in the independent label world are “reluctant activists or reluctant spokespeople about this issue.”
“It's not an area anyone enjoys taking a role in” and their eloquence “reflects reluctance and frustration,” Aistars said. “Artists and creators really don't want to be engaged in these kinds of enforcement exercises,” she said.
East Bay Ray, guitarist with the punk rock band the Dead Kennedys, said that he was subject to public shaming on the Chilling Effects website for filing a takedown notice on YouTube.
“Somebody making money off my work is kind of like sharecropping,” said Ray, whose real name is Raymond John Pepperell. Referring to the uploading of a whole CD without permission, he said, “that's not right and that's not free speech.”
Copyrights in Digital Environment
The task force's University of California, Berkeley, Calif., event was the second forum on improving the DMCA notice and takedown system. The task force's goal is to find out what works out and why, and after making progress on standardization, the working group can decide what to take up next, according to Shira Perlmutter, chief policy officer and director for international affairs at the Patent and Trademark Office.
The multi-stakeholder approach allows those who participate “to kind of figure out workable solutions to policy problems at a much more granular level than Congress or top-down regulators,” according to John Morris, Internet policy director at the National Telecommunications and Information Administration.
Aistars said that a standardized, interactive form should be created for notice and takedown on websites with user-generated content along with a standardized announcement about removed material “that would be neutral in tone, non-stigmatizing with respect to artists and educational with respect to the copyright issues involved.”
“Our goals here are to serve everybody's interests” and reduce number of takedown notices sent and received, she said. There are “significantly more requirements required of artists and creators as they are taking down a work than there are of users of sites as they're uploading a work,” including being required to join or subscribe to a site before filing a takedown notice.
Discouraging False Notices
A joint proposal by the Electronic Frontier Foundation, New Media Rights, the Center for Democracy and Technology, the American Library Association and Public Knowledge said efficiency must not come at the price of undermining safeguards against takedown abuse.
Standardized Web takedown forms written in plain English should discourage faulty notices, according to Corynne McSherry, EFF's intellectual property director. Improper takedowns are “bad for everyone,” bad for fair use and speech, are embarrassing, expensive and cast aspersions on the whole system, McSherry said.
A takedown notice should clearly identify each allegedly infringing work and explain the elements under Section 512 of the DMCA, including disclosing fair use and remind requesters that an improper notice can subject the sender to liability, she said.
The system should notify the party whose post was removed and should also notify the appropriate parties of a counter notice, McSherry said. Reposting should be as easy a process as takedown in order to restore quickly a work improperly removed.
Teri Karobonik of New Media Rights said the system should offer accurate, complete and transparent takedowns. “The point of the DMCA is not to give content creators a copyright exam,” Karobonik said.
Size and Competency Matter
Fast-track, automated takedowns are a good idea “but many ISPs are completely incapable of doing that,” according to Joshua Wattles of DeviantART Inc. Any uniform process adopted has to be cheap and easy to implement.
“Size is exceedingly relevant when talking about ISPs,” Wattles said. Going from the biggest of the top 20 Internet service providers to the next level down is a “massive, massive drop off in terms of size and competency.”
The user-generated DeviantART.com site has 31 million registered members worldwide with 284 million files. Takedowns typically occur within two business days or less, Wattles said.
“Our biggest, biggest challenge in this whole process is fair use,” he said.
Google Inc., Facebook Inc. and Yahoo Inc. have a scale of competencies that is beyond what small- and medium-sized ISPs can do, Wattles said. “DMCA was not designed to be a resource hound.”
Dealing With Large Requestors
Google has a troubleshooter Web form in 43 languages designed to reduce common errors in submitting takedown requests, according to Google's Fred von Lohmann.
Google in the past month had requests to remove 25.5 million URLs, according to the most recent transparency report on copyright.
Four years ago Google started a trusted submitter program for parties that submit hundreds of thousands of takedown notices, von Lohmann said. More than 90 percent of the notices Google receives are from a small number of submitters.
From March 2013 to February 2014, six members of the Motion Pictures Association of America sent 30.3 million takedown notices to sites such as cyberlockers, according to Ben Sheffner, the MPAA's vice president of legal affairs.
Twentieth Century Fox Film Entertainment Corp. sent 33,048 DMCA notices over the movie “Wolverine” to file hosting site Rapidgator.net, an average of 172 notices per day, Sheffner said,
The Recording Industry Association of America filed more than 5.4 million notices of infringement in the first four months of 2014 to some 250 service providers, said Mark McDevitt, vice president for online antipiracy.
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For More Information
Submitted materials are available at http://www.uspto.gov/ip/global/copyrights/index.jsp.