The DMCA takedown and counter-takedown procedures has been a mess for a while now. And it didn’t look like anyone who could fix it cared to. Which made it a surprise when the US Copyright Office asked for public comment on the issue on New Year’s Eve. That includes Australians. If you think DMCA takedowns are bullshit — and they often are — you should definitely tell the US Copyright Office why, particularly since they’re also accepting submissions from Australians. More on that in a second.
The US Library of Congress, home of the Copyright Office, just launched a study into the effectiveness of the DMCA safe harbour provisions. That’s the specific part of the DMCA which immunises online service providers (like YouTube) from being held accountable for the copyright infringement of its users. In order to do that, the site that hosts the content must meet certain requirements. Ones you’re probably aware of: the notification and counter-notification processes, taking down of allegedly infringing material, and having a way to deal with repeat offenders.
Here’s how the Library of Congress summarises what it’s doing:
The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbour provisions contained in 17 U.S.C. 512. Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices. To aid in this effort, and to provide thorough assistance to Congress, the Office is seeking public input on a number of key questions.
They’re asking a lot of pointed questions. There are 30 “subjects of inquiry” in their notice, including the catch-all, “Please identify and describe any pertinent issues not referenced above that the Copyright Office should consider in conducting its study.”
At the end of the day, though, they’re trying to figure out if the DMCA safe harbour actually works. And I’m betting that all sides of the debate will say “No” in some shape or form. Media companies, for one, are going to complain that the takedown process is onerous and that it doesn’t actually keep their works offline. Users are going to complain that the process doesn’t take into account fair use and is ripe for abuse — for example, companies sending takedowns to completely legal criticism because it’s negative.
On the one hand, as it does during the exemption process every three years, the Library of Congress and the Copyright Office are just as likely to come up with a complicated and unusable response to everyone’s concerns that will ultimately benefit large and wealthy companies. On the other hand, people have been complaining about the DMCA for years with little movement. So who knows if anything will actually change. (I will eat my left shoe if the DMCA’s safe harbour provisions are changed any time in the next five years.)
All that said, you should definitely let the Library of Congress know how badly the DMCA is screwing up. The Copyright Office is taking comment until 3:59pm AEDT on 22 March 2016 (11:59pm EST on 21 March 2016), followed by public meetings. You can’t actually see specific instructions for how to submit comments yet, but they will be available here by February 1. Yes, they announced this was happening on New Year’s Eve and don’t even have the website for it up and running yet.
Here’s to hoping something actually comes of this.
Image by Gizmodo