The DMCA (PDF) is a strange piece of legislation. Even the relatively straightforward notice and takedown provisions of the DMCA seem to be partially written in cryptic code, so much so that even many lawyers struggle to figure it out.
One of the classic examples of the this cryptic writing is the term “repeat infringer”. Under the DMCA, hosts are required to “adopt and reasonably implement a policy of terminating in appropriate circumstances the accounts of subscribers who are repeat infringers”.
While this sounds straightforward, its application turns out to be anything but. Since the law doesn’t define the term repeat infringer, the discretion is left up to the host and, as a result of that, enforcement of this particular rule varies all over the map.
This might seem to be a minor issue. However, if you are someone being reported for copyright infringement, this is the difference between having an allegedly infringing work surgically removed and losing your entire account.
Likewise, if you’re reporting someone for infringement, this is the difference between someone staying in business, just without some of your content, and being forced to move.
Either way, it is important to know what the term means, so you can better protect yourself.
A Matter of Perspective
photo credit: believekevin
Consider the following scenario: While doing a check for your own content, you are confronted by a site that has taken twenty items of your work, either through automated or traditional means. You decide to report the site to the host but would prefer that the domain be shut down as you suspect they are simply going to take more in the future. How do you do it?
Which of the following do you do?
- File One Notice: Send one DMCA notice with all twenty items listed and hope that the host understands the severity of the case and remove the site completely.
- File Several Notices: Take the extra time to file many different notices and hope that the host sees the site as a repeat infringer and pulls the plug.
The right answer is that there is no right answer. Different hosts handle this in different ways. Since the law does not offer any meaningful guidance as to when a person is declared a repeat infringer, hosts have a lot of leeway to set their own policies. The problem is that this creates a lot of extra work for both copyright holders and hosts alike.
Coming To a Definition
The problem with the system is that there is no clear definition of a repeat infringer. One could base the term “repeat” on many different elements including the following:
- The number of works infringed.
- The number of DMCA notices received.
- The number of people who complain.
- The number of times they upload the same work (after takedown).
- Any other standard the host wishes to use.
With so much leeway, the response of the host varies from banning everyone who has even one DMCA filed against them to never banning anyone. The response is often not even consistent within the same host as different abuse agents approach the cases differently.
Usually, when I bring up this issue with hosts, they say the same thing. The protect the client and don’t ban them so long as it is worth their while. They might be understanding of a few mistakes, but once a client becomes a drain on their resources, they are gone.
However, from the outside, it is impossible to tell when that is. Whether you’re the customer or the filer, it is impossible to know where you stand.
After all, if you list ten things in one DMCA notice, the host could decide that is one infringement, just ten items in one act. If you send ten separate notices, the host might not connect the cases and may take the time to remove every work individually.
The result is a lot of lost time and head-scratching, on the part of hosts, their users and third-party copyright holders.
Since this matter is not going to be straightened out any time soon, the most common question I get when faced with a repeat infringer is “Do I put each infringement in a separate notice of file them together?”
As I said before, there is no correct answer. Though you can definitely mention multiple works in the same notice, including several hundred if you see fit, there is no way to tell which approach is best.
Most larger copyright holders file a separate notice for each item. However, this is not a function of trying to thwart repeat infringers, it is the nature of the tools that they use.
The problem is that every major content tracking service doesn’t monitor sites, but infringements. This means that they typically do not have the ability to combine multiple works into a single notice without human intervention, which is precisely what they are trying to avoid.
For those of us who are using more human means to file a notice, we are still faced with a decision. In those cases, I usually tell people to “split the difference”.
What this means is simple, if you have a plagiarist that has taken 20 works, don’t burden yourself or the host with filing 20 different notices or one notice with 20 items. Instead, file one notice with five or ten infringements listed.
The idea is simple, let the host know that this is a serious case of infringement while compiling a notice that is both simple to create and easy to act on. Many hosts will ban the site then, especially if it is a suspected spam blog. If they don’t, file a second notice with another batch of works.
The goal is to not overburden yourself or the host, ensuring speedy removal of the content and maximizing the likelihood that the site will be banned. It seems to work fairly well and, generally, has been well-received by hosts.
In fact, using this system, I’ve only had to file follow-up notices a few times, meaning that most hosts seem to cut off a site after they’ve found five or more allegedly infringing items.
Still, it is far from perfect, it just seems to be the best balance I’ve been able to find over the years.
There is clearly a need for greater clarification on this aspect of the DMCA. We need solid understandings of what it means to be a repeat infringer as well as what constitutes a single act of infringement.
These are not simple questions but they are all things that the DMCA did not adequately answer, leaving service providers and their attorneys to write their own definitions.
If we are going to have any homogeneity in this area, the law is going to have to be clarified, Only with the law made clear can we begin to effectively debate tweaks and changes that might improve it.
In the end though, this is just another example of how poor writing has hurt the DMCA as much as poor policy. It was a law written in haste to resolve a rapidly emerging issue, problems such as this were inevitable.
Now it is everyone else who has to clean up the mess.