The DMCA has been a law surrounded in controversy since its passing in 1998. Of it’s many parts, no element, with the possible exception of the anti-circumvention measures , have been more controversial than the notice and take down povision. It has been assailed as an assault on free speech and a "shoot first, aim later" approach to handling copyright infringement. Others have noted that it has the power to a great deal of good, including stopping spammers and, yes, stopping plagiarism.
As someone who is constantly fighting plagiarism, I use DMCA notices regularly. Though I do so somewhat begrudgingly, a DMCA notice is one of my most often-used tools. I have a stock template for a DMCA notice built into my browser and, generally, send out at least a few each month. This experience has taught me a lot about the way the DMCA is actually applied on the Web and there’s a huge disjunct between the rhetoric, the law and what actually takes place.
This difference, for better or worse, needs to be looked at before any valuable changes to the law can be made.
The DMCA’s Notice and Takedown provision was a compromise between major copyright holders, such as the RIAA, and Web hosts. Hosts, prior to the passing of the DMCA, were in something of a legal gray area, not certain whether or not they could be sued for copyright infringement that took place on their servers, usually without their knowledge. The DMCA set down rules that, if followed by hosts, left them immune to such suits.
Though that compromise contained many elements, the centerpiece of it was the notice and takedown provision through which a copyright holder could submit a specially-formatted notice that, among other things, required the complainant to swear under the penalty of perjury, and either have the work removed or access to it disabled.
This was seen as a major win for copyright holders, as they are now granted a fast an easy way to stop any copyright infringement and for Web hosts as they are now removed from underneath the threat of a lawsuit. Users, it seemed, were the ones who lost out. Many began to fear that the provision would be used to silence unwelcome speech or be prone to abuse. A recent study seems to indicate that, in many cases that is exactly what is going on.
Yet, despite this, copyright holders such as myself have continued to use DMCA notices, out of a combination of necessity and convenience, to protect their works. Though, many times, the law works exactly as its designed to, more often than not, there are large differences between what exists on paper, and what happens in the trenches.
At times, the difference is so great that one feels as if they’re following a completely different law all together.
- Most hosts don’t register with the U.S. Copyright Office
The first difference that becomes clearn when trying to file a DMCA notice is that most hosts don’t register with the U.S. Copyright Office, despite it being a requirement of the law. Though the site has hundreds of hosts listed, most are actually duplicates posted multiple times under other names. Microsoft, for example, has at least five separate listing.
Though many of the really big names in hosting, Microsoft, Google, Myspace, Lycos, etc. are represented, it only takes a brief scan to find many that aren’t including Xanga and WordPress.
While this isn’t always a terrible problem because many hosts simply list their DMCA information on their site, others provide no contact information at all and, generally, only take notices via their regular abuse procedures. This defeats the entire purpose of having a centralized place to find contact information to send DMCA notices and reduces much of the theoretical benefit copyright holders would have obtained from it.
- Many hosts don’t always respond quickly
Though the DMCA requires "expeditious" removal or disabling of infringing work, response time varies wildly. Some hosts will reply within a few hours, others will take a week or longer. Microsoft, for example can take up to two weeks to disable work after receiving a DMCA Notice.
Generally though, most DMCA notices are handled much slower than traditional abuse complaints since they first have to go to a lawyer to determine the validity of the complaint. Only sites such as LiveJournal, which have found ways to automatically ensure that a DMCA notice is valid, can even begin to approach the kind of speed other abuse complaints receive.
- Some hosts don’t respond at all
Many hosts, in particular smaller ones, don’t respond at all to DMCA notices. Either they aren’t aware of the requirements of the DMCA or simply have chosen to ignore them. Even though, theoretically, this could open them up to copyright infringement lawsuits, few copyright holders have the resources to file lawsuits against host in other parts of the country.
This is very frustrating to small copyright holders, the one the provision should have helped the most, who had previously resolved these matters with abuse notices only to find hosts now uncooperative with their legal ones.
- Counternotices are very rare
The DMCA offers a provision in which, if a site owner has their materially wrongfully removed, they can file a counter-notice. The counter-notice, which is similar in format to a DMCA notice, should get the content restated within ten days. Granted, in all of the notices I’ve sent no one has been able to legally file a counter-notice, no one has tried either.
Whether this is out of ignorance of the law or a genuine realization that they are in the wrong, I can’t say. Nonetheless, I am yet to face one in all of my cases.
- Most DMCA notices are legitimate (or at least well-intended)
Though the study mentioned above shows a sizable percentage of DMCA notices to be questionable, the majority, over two-thirds, are still legitimate. Most people I’ve interacted with that use the DMCA are just copyright holders following the laws. No hosts I’ve worked with has complained of frequent abusive uses of the DMCA and, a few noteworthy cases aside, most attempts to use the notice and takedown provision are at least well intended.
Furthermore, many of the cases of questionable notices can be explained by non-lawyer copyright holders trying to muddle their way through a very complex letter, thus making the need for templates more clear.
- Search engines are being abused
Google, Yahoo and MSN are rapidly being put into the position of "copyright police". Even though the DMCA allows people to file complaints with a host and have the infringing works removed from the Web, many copyright holders, often unsure how to discover who the host is or track down their contact information, simply turn to the search engines first, and last.
While sometimes useful as a last-ditch effort, it does little to actually stop the plagiarism or protect copyright. It’s just the only way some people know to handle these matters and it’s pushed the search engines into the awkward position of being the ones responsible for enforcing copyright on the Web.
The DMCA was a law that was founded on a set of ideals that has become mired in a much darker reality. Though both sides of the issue want to paint the law with broad strokes, the reality of it is much different.
Whether you see it as a flawed law with some unintended benefits or a good law with negative repercussions will depend largely on your views of it when it began, the fact is that the takedown provision of the DMCA is neither fulfilling its intended promise nor living up to the nightmare it was supposed to create.
As usual, the truth lies somewhere in the middle and the rhetoric on both sides tell only part of the story. Only once we accept this can we even begin to change the law in a way that benefits everyone involved, copyright holders, hosts and Web users.
And that, in the end, is the real challenge: Finding a way to protect everyone.
A difficult challenge when the difference between what’s on paper and what takes place on the front lines is so great that the resemblance between them is lost.
[tags]Plagiarism, Content Theft, Copyright Infringement, Copyright Law, DMCA, Law[/tags]