Thoughts on the DMCA Reform Draft Proposal

The DMCA is one of the most significant laws on the Internet, as it is the de-facto standard process which governs the removal of content which allegedly infringes on copyright. That might sound mind-numbingly boring, but it’s a topic which has increasingly come into the cultural spotlight, as automated takedown mechanisms have impacted folks on Twitch, YouTube, etc – for a whole variety of arguably spurious reasons.

It’s no secret that the DMCA has significant problems (it’s a topic I’ve written about at length) – and there has been an ongoing review of the statute to try bring it up to date. Earlier this year we saw the US Copyright Office publish their recommendations on the future for the DMCA, and just this last week, a draft proposal for change was put forward for comments by Senator Tillis. The full thing is pretty long and complicated, especially if you aren’t familiar with the statute, but the accompanying summary doesn’t really give a full picture of the changes.

I’ve had a look through the proposals (specifically in relation to the notice and takedown process), and noted some specific areas of interest below. Note that this is nowhere near exhaustive, and based on first impressions. Caveat Emptor.

  1. s.512(b) – Qualifications added to the notice requirements. Here we see a bunch of different language added to the section detailing the requirements of a notice. This in of itself is not a bad thing, but the changes here make the statute much more difficult to both interpret and apply. The law is already vague and unclear in a number of areas, and this makes that worse. See s.512(b)(1)(C)(i)-(ii) specifically.
  2. s.512(a)(2)(C)(ii)Notice and Stay Down. This section introduces a requirement that material which is the subject of a DMCA takedown ‘stays down’ when a ‘complete or near complete copy’ is identified. In essence, this means that platforms will have to implement some kind of filtering technology to ensure that content is not re-uploaded. This comes despite the warnings from the USCO and others that this approach (following the European Copyright Directive) would be problematic (to say the least). It also isn’t clear at all whether this would apply retrospectively to content which has already been uploaded, or what a ‘near complete copy’ would entail. Again, this opens up issues of interpretation around the threshold for removal, and platforms would inevitably need to err on the side of caution to avoid liability. The impact of this would be that far more content would be taken down than users would expect. It also doesn’t address the question of fair use, in any way. In other words… not all unauthorised uses of copyrighted material constitute infringement (or where they do, there can be a fair use rebuttal).
  3. s.512(b)(1)(E)Good Faith Belief now subjective. The requirement for the copyright holder to make a statement that they have a good faith belief that the material is not authorised for use […] has been updated to include a ‘subjective’ qualifier. This will make it much more difficult for any claims to be brought against those who submit bogus takedown notices on the basis of their good faith statement. This directly relates to the hard-fought concession in the Dancing Baby case (Lenz v. Universal).
  4. s.512(b)(5)Anonymous Notices. This section allows for complainants to have their personal information redacted from notices, based on as-of-yet non-existent guidance from the Register of Copyrights. On the face of it this seems sensible. However, the DMCA already allows various ways for complainants to remain largely anonymous, or to have their details protected – something which is not afforded to users when submitting counter notices. Complainants can simply provide an e-mail address as the minimum contact information required, or submit through a third party agent. There is no similar provision or update given for counter notices. This is something which we have seen abused by abusive complainants to gain information on those who are critical of them.
  5. Counter Notification Challenges – Again on counter notices, this section essentially gives the complainant the final right to reply on the statutory process, before resorting to legal action. In other words, if a counter notice is submitted, complainants would be able to challenge this within the statute, and not have to show evidence that they have pursued the matter in court (as they do under the current provisions). This adds another step to the ‘complicated game of tennis’ which is the back-and-forth of the notice and takedown system, and one which benefits the complainants massively. The burden of proof is essentially reversed, and means that any users who have the right to use material will be forced to take legal action to show that the material was wrongfully removed – rather than the rights holders taking action against the infringement.
  6. s.512(f)(2)List of Abusive Complainants – This is the one positive from the list of changes. Essentially, this updates the penalties section of the DMCA to allow for those that consistently send invalid notices to be placed on a list which would allow service providers to disregard these notices for a set period of time. However, there are no real details about what the threshold for abuse would be, or about what the appeal process (if any) would be if someone was included on this list. Without these details, one suspects that the threshold would be set so high, and be subject to so much legal challenge, that it would in effect be worthless.

General Thoughts

This draft proposal is disappointing (at least with regards to the notice and takedown provisions), as it seems to ignore many of the key issues that have been consistently raised about the DMCA. Rather than correcting the imbalances that exist, the proposed changes further strengthen and entrench the position of rights holders, as well as the statute’s utility as a powerful unilateral censorship tool.

The provisions relating to counter notification are particularly troubling, as the data collected over the 20-odd year life-span of the DMCA shows that the number of counter notices which are actually filed is miniscule. There are already so many barriers and disincentives for people to challenge takedown notices (on valid grounds) that adding in more hurdles seems to be completely at odds with all of the established literature on the topic.

Despite its many flaws and criticisms, the DMCA has become a system which at least provided consistent results. These proposals bring some of the worst parts of the statute, and combine them with the very worst parts of the European Copyright Directive to give far greater takedown powers to rights holders, with seemingly no consideration of users, or the cultural importance of online expression.

This is just a draft proposal, and open for stakeholder comments. If we are going to avoid a similar disaster to the approach taken in Europe, major changes need to be made.