Happy 20th Birthday DMCA! Is it Time Now for a Safe Harbor Face Lift?

By: Sherry Gelenius

Two decades have passed since the Digital Millennium Copyright Act (DMCA) was enacted on October 28, 1998 by President Clinton.[1] This landmark legislation was a significant step in updating U.S. copyright law to keep pace with the Internet. It was intended to be a quick, cheap, and easy means to resolve online copyright disputes, but it’s now showing its age.[2] Due to changes in data consumption and a dramatic increase in data volume,[3] the DMCA is no longer able to keep up with the explosion of on-line infringement possibilities (now including music and video), and its safe harbor protection for Online Service Providers (OSPs) is being strained by countless infringements not envisioned twenty years ago.[4]

Why do we care? We care because OSPs are more likely to automate their takedown process and remove content, and even whole websites, rather than be subject to losing their safe harbor status. We care because today more users are using Internet-based services, not just for entertainment, but also for essential life services, such as emergency notifications and phone connections.[5] The loss of these services, even for a short period, has far-reaching effects.

The first issue with the DMCA is the vagueness of the safe harbor language addressing the Repeat Infringer Termination Policy (R.I.P.) threshold.  The DMCA does not explain how this threshold is to be “reasonably implemented,”[6] and the courts have differed in their interpretation of a reasonable threshold.[7] Most recently, the court in BMG Rights Management v. Cox Communications[8] found that Cox should lose its safe harbor provision for not having a reasonable R.I.P., although they followed a thirteen-strike policy.[9] Because of these inconsistencies,  OSPs are now more likely to follow the DMCA process strictly and first remove content with little regard to repercussions for users. Instead, these OSPs will allow the process[10] (Figure 1) to determine if and when the content is reinstated.[11]

Figure 1: DMCA Takedown Notice Steps

The second issue with the DMCA has to do with the increase in the number of takedown notices received by OSPs. Google processes over seventy-five million takedown notices each month, an average of over 2 million per day. [12] This is up from only a few dozen a year in 2008.[13] This dramatic increase is due largely to a form of spamming.[14] Bots are being used to find infringements and then submit the takedown notices in an automated manner. The issue with bots seeking infringements is that they are not discerning, i.e., “[n]early 30 percent of requests to remove copyrighted material are of questionable validity . . . In millions of cases, the content targeted didn’t even match the copyrighted work, the majority of which was music or adult entertainment.”[15] As expected, some of these false identifications are resulting in the content of non-infringers being taken down, and “[t]hat’s a big problem for the [DMCA] procedures that are often considered the legal backbone of the Internet.”[16]

While the DMCA was revolutionary twenty years ago, an arbitrary takedown process is no longer viable. The increase in the number of Internet users and the essential need for Internet services, on a consistent basis, requires changes to the DMCA. Reform of the safe harbor provisions to accommodate the changes in technology, the changes in the areas in which violations are being found, and the enormous growth in Internet users is needed to ensure essential services are not halted due to a rogue bot.

So, Happy Birthday DMCA . . . and may there be many more!

[1] Digital Millennium Copyright Act, 17 U.S.C. § 512 (1998).

[2] Your Website May Be 84 Years Old in Internet Time, The Profitable Firm,  (Nov. 14, 2014), https://theprofitablefirm.com/website-may-84-years-old-internet-time, (“Just as one year of human life equals seven years for dogs, there is also a life-multiplier for Internet-years. Some estimate it to be as high as 27 to one, which makes this Act now a staggering 540 years-old!”).

[3] Tom Hale, How Much Data Does The World Generate Every Minute?, IFL Science, (Jul. 26, 2017: 9:38 PM), https://www.iflscience.com/technology/how-much-data-does-the-world-generate-every-minute, (“In 2016 there were 3.7 billion Internet users and 2.5 quintillion bytes of data generated each day.”).

[4] Mitchell Zimmerman, Your DMCA Safe Harbor Questions Answered, Fenwick & West, (2017), https://www.fenwick.com/FenwickDocuments/DMCA-QA.pdf, (“The four safe harbors cover claims arising from the OSP having: (1) Hosted, stored and made infringing matter available if it was stored at the direction of users (the Storage Safe Harbor, § 512(c)); (2) Transmitted, routed or provided connections (for example, telephone lines) for digital online connections for infringing material transmitted by users (the Transmission Safe Harbor, § 512(a)); (3) Cached infringing material on a system or network, when the material was initially made available by someone else (the Caching Safe Harbor, § 512(b)); or (4) Provided links or referred users to online locations containing infringing matter or activity (the Search Engine or Information Location Tools Safe Harbor, § 512(d))”).

[5] Mark Surman, Internet Access is an Essential Part of Life, But The Quality of That Access Can Vary Wildly,  Community Based Solutions, (May 5, 2017), https://qz.com/976013/internet-access-is-an-essential-part-of-life-but-the-quality-of-that-access-can-vary-wildly.

[6] 17 U.S.C. § 512 (c)(i)(1)(A) (1998).

[7] Perfect 10, Inc. v. CCBill LLC, 481 F.3d 751 (9th Cir. 2007), (The Ninth Circuit in Perfect 10 v. CCBill suggested reasonableness “if, under ‘appropriate circumstances,’ the service provider terminates users who repeatedly or blatantly infringe copyright.”); see also Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1104 (W.D. Wash. 2004) (“Some courts have held that this determination requires proof the OSPs have actual knowledge of the ‘user’s blatant, repeat infringement of a willful and commercial nature.’”).

[8] BMG Rights Mgmt. (US) LLC v. Cox Communs., Inc., 881 F.3d 293 (4th Cir. 2018).

[9] Anthony Rutkowski, DMCA Compliance Becomes a Serious Obligation for ISPs, Yaana, (Feb. 15, 2018), https://www.yaanatech.com/dmca-compliance-becomes-serious-obligation.isps.

[10] A Guide to YouTube RemovalsA Guide to YouTube Removals, Electronic Frontier Foundation, (Aug. 30, 2018), https://www.eff.org/issues/intellectual-property/guide-to-youtube-removals (“Description of DMCA takedown steps. Step 1: The rightsholder initiates the process by submitting a DMCA notice; Step 2: The OSP is obligated to initiate a takedown, as long as the notice is properly completed; Step 3 is one of two paths: 3a- the user accepts the takedown and the process ends or 3b – the user files a Counter Notice indicating why the content is not an infringement. If a valid Counter Notice is filed, then Step 4 has one of two paths: Step 4a -the rightsholder has 14 days to file a lawsuit or Step 4b – if 14 days have lapsed and no lawsuit has been filed, the OSP automatically restores the content”).

[11] Haley Fine, Consequences of BMG Rights Management v. Cox Communications, Public Knowledge Blog, (Dec. 1, 2016), https://www.publicknowledge.org/news-blog/blogs/consequences-of-bmg-rights-management-v-cox-communications.

[12] Gina Hall, How Many Copyright Takedown Notices Does Google Handle Each Day? About 2 Million, (Mar. 7, 2016), https://www.bizjournals.com/sanjose/news/2016/03/07/how-many-copyright-takedown-notices-does-google.html.

[13] Id.

[14] Jonathan Bailey, The DMCA’s Spam Problem, (Apr. 20, 2015), https://www.plagiarismtoday.com/2015/04/20/the-dmcas-spam-problem.

[15] Mark Fahey (@marktfahey), Blame the Robots for Copyright Notice Dysfunction, The Big Crunch with Eric Chemi, (Mar. 31, 2016: 12:13 PM ET), https://www.cnbc.com/2016/03/29/blame-the-robots-for-copyright-notice-dysfunction.html.

[16] Id.

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