The DMCA safe harbor provisions, though less controversial than other parts of the law, have seen their fair share of issues.
Between large corporations filing DMCAs by the thousand, DMCA notices used to silence critics and other issues over the years, the safe harbor provisions have shown that, in the wrong hands, they can be a very dangerous tool.
Fortunately, most of the major cases where safe harbor was clearly being abused either have been or will likely be resolved by the courts in favor of those injured.
However, this has not stopped me from thinking of ways to improve and fix safe harbor, both to reduce the number of incidents where the system is abused and improve the overall efficiency of the process.
The Short List
Though, if I could get the ear of lawmakers, this list would actually be much longer, there are five improvements that I consider critical to making the safe harbor provisions work better and more fairly.
- Transparency: I’ve spoken on this before but a gaping hole in the DMCA process is that there is almost no transparency to the process. The person who had the notice filed against them rarely sees the actual letter, there is no public examination of filings and accurate statistics are impossible to glean. Though sites such as Chilling Effects attempted to create databases for this purpose, hosts have not participated reliably and only a small percentage of notices are available for viewing. Greater transparency, both with the subject of the notice and the public, is needed both to discourage false notices and to better understand how the law is used.
- Centralized Reporting: Currently, in most cases, the greatest challenge in filing a DMCA notice is not legal, but technical. Locating a host and finding their DMCA agent is complicated process that few are able to perform. The U.S. Copyright Office keeps a database of DMCA agents, but the information is both dated and difficult to access. A central means of reporting infringements to U.S. based hosts, if done with proper protections, would fix much of the problem. As it sits now, it is mostly large corporations, who can afford the research and legal expenses, that enjoy the benefits of the DMCA. Simplifying the process would allow more small copyright holders to protect their work.
- Stronger Punishments for False Notices: Currently, the law states that anyone who misrepresents an infringement, either in a notice or counter-notice, is “liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation.” In most cases, this would be a very small amount and provide little motivation to sue. Though other laws may apply, the DMCA needs to bulk up the damages for filing a knowingly false notice or counter-notice.
- Update For Modern Technology: The DMCA was written in 1998. Though it is a baby in terms of copyright laws it is already very far behind in terms of technology. Ten years ago, the term “online service provider” was much easier to define. Today, with sites such as Youtube and services such as Second Life, there is much less clarity and that has impacted the usability of the law as well. Hosts are now more than mere repositories for data and the law needs to reflect that.
- Addition of Link Requests: The DMCA safe harbor system is a true one-trick pony, the removal of the allegedly infringing material. However, many copyright holders are happy to share their work, so long as they receive proper attribution. Give copyright holders the option of requesting a link request or other attribution instead of merely removing the work. Hosts win because they don’t have to disable user accounts, “infringers” win because their sites remain up and copyright holders win because they get links back to their original content.
Though most of these changes would be fairly simple to implement in terms of the law itself, they create technical and other challenges that will likely keep them from happening.
In the end, I am forced to admit that we are likely stuck with this outdated and easily-abused system that not only favors large copyright holders, but also ensures that the applicability of the law is almost always in doubt.
No matter what you may think of the safe harbor provisions, the truth is that, without the protections it provides hosts and other online service provides, much of the Internet we have today would not be possible. Without the legal security the law provides, many sites we enjoy would be too risky to be feasible.
Still, as laws go, it is a flawed one. However, it is not beyond all repair. Considering the other copyright legislation to have been cooked up by our Federal government, as well as other elements in the DMCA itself, the safe harbor provisions are easily some of the better rules.
Hopefully though, they can be improved and honed to eliminate many of the problems with the law and help copyright holders, hosts, search engines and users alike enjoy the rights and protections the law provides.
Images: Some of the images for this article were captured from YouTomb