In a nutshell, key entertainment industry players believe that the DMCA is no longer fit for purpose and has been twisted out of shape by pirate sites, Google and even YouTube, to work against their best interests.
One of the main problems is taking down infringing content. The legislation allows content to be removed following the issuing of a so-called DMCA notice, but copyright holders say that this descends into a game of whac-a-mole, with content repeatedly reappearing.
To end this cycle they’re pushing for a new mechanism provisionally titled ‘Takedown, Staydown’ or ‘Notice and Staydown’. This would order web platforms to ensure that once content is taken down it will never appear again on the same platform. These proposals are currently under review by the US Copyright Office.
But while copyright holders feel this would be a great tool for them, it’s perhaps unsurprising that content platforms are less enthusiastic. After weighing in earlier in the year, the latest warnings from the Internet Archive, a gigantic public repository of a wide range of media, and are among the sternest yet.
Noting that even the current system is regularly abused by those seeking to silence speech, the Archive says that on a daily basis it receives wrongful takedowns for content that is in the public domain, is fair use, or is critical of the content owner. Therefore, further extending takedown rights could prove extremely problematic.
“We were very concerned to hear that the Copyright Office is strongly considering recommending changing the DMCA to mandate a ‘Notice and Staydown’ regime. This is the language that the Copyright Office uses to talk about censoring the web,” the Archive warns.
The Archive has a number of concerns but key issues involve due process and user monitoring. Once a platform is in receipt of a “staydown” order, it will be required to ensure that content never reappears, regardless of the context in which it does so. This means that users posting content subject to fair use exceptions will effectively be denied their right to issue a counter-notice when their upload is blocked, thus trampling due process.
But of course, blocking content also requires that users are monitored, and the Internet Archive doesn’t like that idea at all.
“The current statute protects user privacy by explicitly stating that platforms have no duty to monitor user activity for copyright infringement. Notice and Staydown would change this – requiring platforms to be constantly looking over users’ shoulders,” the Archive warns.
With free speech potentially at stake here, the Internet Archive says that taking content down and keeping it down has constitutional implications.
“Notice and Staydown has a serious First Amendment problem. The government mandating the use of technology to affirmatively take speech offline before it’s even posted, without any form of review, potentially violates free speech laws,” it says.
Such an automated system would amount to a censorship “black box”, the Archive adds, to which the public would be denied the key.
“It would be very difficult to know how much legitimate activity was being censored.”
Fair use has come up time and time again during this DMCA debate and the Internet Archive is clearly very concerned that it receives protection. Worried that content filtering technology isn’t even up to today’s challenges, the Archive warns that systems that can identify instances of fair use simply don’t exist.
“So far, no computer algorithm has been developed that can determine whether a particular upload is fair use. Notice and Staydown would force many cases of legitimate fair use off the web,” it warns.
“Further, intermediaries are not the right party to be implementing this technology. They don’t have all the facts about the works, such as whether they have been licensed. Most platforms are not in a good position to be making legal judgments, and they are motivated to avoid the potential for high statutory damages. All this means that platforms are likely to filter out legitimate uses of content.”
Finally, there is the not insignificant matter of who is going to pay for all of these systems should platforms be forced to adopt them. While copyright holders would apparently reap the benefits, sites like the Internet Archive would probably be expected to foot the bill.
“Developing an accurate filter that will work for each and every platform on the web will be an extremely costly endeavor. Nonprofits, libraries, and educational institutions who act as internet service providers would be forced to spend a huge amount of their already scarce resources policing copyright,” the Archive warns.
“The DMCA has its problems, but Notice and Staydown would be an absolute disaster,” it concludes.
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