Rethinking the Balance of the DMCA

Why the U.S. Copyright Office is (Mostly) Right...

US Copyright Office Seal

Last week, the U.S. Copyright Office (USCO) released its long-awaited report on Section 512 of the Digital Millennium Copyright Act (DMCA).

Best known as the safe harbor provisions of the DMCA, these are the provisions that create the notice-and-takedown system that’s dominated the copyright landscape in the U.S. These provisions grant providers such as YouTube and Facebook freedom from legal liability and gives rightsholders the ability to quickly remove allegedly infringing work from the internet.

It was a balance that was supposed to ensure both that providers are allowed to thrive and enjoy legal certainty and creators could enforce their rights effectively. However, the USCO was tasked with finding out if that balance was working out some 22 years later. Ultimately, it found that it wasn’t.

As someone who has been actively sending out DMCA notices for over 20 years, almost the entire run of the DMCA, I’ve watched firsthand as the way the system works has changed. The balance was never perfect but it’s gotten progressively worse. This is largely due to roadblocks and complications set up by providers that discourage DMCA notices while doing little to protect users against false notices.

The DMCA needs to change and, while the USCO report is short on actual concrete advice. Many of the problem areas it highlights are ones that come from my personal experience and the experience of others.

To me, the USCO’s report isn’t perfect, but it does get to the heart of some of the DMCA’s worst problems and the controversy over the report doesn’t seem to give the USCO enough credit for the care it put into the report.

A Strange Controversy

At first blush, the controversy over the report seems to be out of place. The USCO is not a legislative body, the report does not recommend any radical changes to the laws and, in truth, offers few firm proposals at all. The USCO is not a lawmaking body, it’s objective is to point out areas of issue and ask Congress to clarify language, check if the intended balance is present or simply highlight points of contention.

The controversy, however, stems more from what is not in the report than what is in it. Many believe the USCO should have taken the DMCA to task for fair use issues and false takedown notices. While both of these things were addressed, the USCO encouraged no action at this time on fair use (instead it asked Congress to watch the fallout from the Lenz case) and called for stiffer penalties for both false takedown notices and counter-notices.

Many also took issue with the fact that the public at large was not listed as a stakeholder in the report. That view, however, was well dissected by David Newhoff, who pointed out that the public’s interest lies in both sides thriving. The public is best served when creators can create and providers have certainty. The safe harbor provisions are a balancing act between online service providers and creators, the public has a stake in both.

A good balance has the potential to help everyone. It means fewer notices, especially fewer false ones, new content becomes viable on the internet and service providers get to thrive. However, as the report found, service providers were largely happy with the DMCA while rightsholders were much less so.

This is rarely the sign of a balance working as intended. If a good compromise leaves everyone unhappy than this is, at best, half of a good compromise. Some of the issues were baked into the DMCA from the start, others arose as the internet changed. It makes sense for the USCO and Congress to look at updating the law and the flaws the USCO pointed to are a good place to start.

How the Internet (and the World) Changed the DMCA

The internet does not look the same as the internet in 1998. Many of the services we use every day were literally unimaginable 22 years ago. For example, if you had told me in 1998 that, in just 20 years, we’d be using high-speed cellular networks and phones with massive screens to watch short videos of people dancing I would have probably looked at you like you’re crazy.

In those 20+ years, the internet has also become more key for commerce, in particular when it comes to creative works. CDs and DVDs have given way to streaming, both physical books and ebooks sold online and the list goes on.

However, when the DMCA was drafted it only listed four types of online service providers, only two of which had to deal with the notice-and-takedown system. Those two are hosts and search engines.

Through the courts and just time itself, the definition of a host has been expanded to cover everything from hosts like GoDaddy, which charge users a fee to host content on their behalf, to online marketplaces like Amaz