After four years, the "six strikes" US Copyright Alert System was shutdown for good last month. Now, a body of content makers and distributors are asking lawmakers to update the DMCA system that has allowed for a more open internet with stricter rules that would require ISPs to block content.
Deadpool was the most torrented movie of 2016. Image: 20th Century Fox
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.
As outlined in a letter to US Copyright Office, the RIAA and 14 other groups are petitioning authorities to either update or replace the Digital Millennium Copyright Act with a system that would put most of the burden for tracking infringing content on internet service providers. The proposed solutions include requiring that "once a service provider receives a takedown notice with respect to a given work, the service provider use automated content identification technology to prevent the same work from being uploaded in the future".
The letter spends most of its time registering complaints about the ways it views the 19-year-old DMCA as a failure. Mostly, copyright holders don't want to keep hunting down infringers in what they consider an "endless game of whack-a-mole". From the letter:
The extremely burdensome -- and ultimately ineffective -- notice-and-takedown process is hardly a fair exchange for the highly valuable immunity the DMCA safe harbours give service providers, allowing them to continue profitable business operations while avoiding liability for copyright infringement and the potential for statutory damages.
Another proposed solution is to require ISPs to monitor uploads and shares with technology that recognises content that has been reported as violating copyrights. The groups are also asking for strict time limits for compliance stating that ISPs have "far too much discretion to decide how quickly they will comply with a takedown notice".
Perhaps most disconcerting is the letter's nonchalant attitude toward fair use:
Several service providers and their associations also claim that automated content identification technologies would result in censorship of non-infringing works erroneously caught by the technology, such as fair use works. That concern is greatly exaggerated in an attempt to avoid any obligation to employ content identification technologies. As the Consumer Technology Association readily admits, modern automated systems can be calibrated to protect likely fair uses.
Fair use is often subjective in nature and that has made it difficult to get any kind of consistency in court rulings. The notion that software could credibly evaluate whether or not a work falls under fair use is dubious as hell. Nevertheless, the letter calls for the law to make it more difficult for people to file counter notices to defend their decision to upload content and goes as far as suggesting that new rules could allow "disputing parties to participate in mediation".
YouTube announced today that it's going to cover the legal costs of copyright lawsuits facing a few videos that they believe are strong examples of fair use. This is one of those situations where good PR and good work actually coincide.
In short, the letter is asking for the bulk of the responsibility of policing copyright to shift to ISPs, likely compounding the problems of DMCA. Unwilling to risk liability, service providers would almost certainly attack every problem with a sledgehammer, much in the same way that copyright holders have.
Last week, Google reported that 99.95 per cent of DMCA takedown notices that it received in January "were not in our search index in the first place". In part, that's because copyright groups have been automating takedown requests. Take the example of mp3toys.xyz, a piracy site that was the subject of 49 million notices sent to Google over the course of six months. The site does traffic in illegal streaming, but an anti-piracy group (APDIF) was running an algorithm to guess the URLs for potentially infringing content. Mp3toyz actually generates a page for users searches. So, APDIF would search for a URL, mp3toyz would create it and APDIF would then auto-send a take down notice to Google. It's easy to see how automated systems like this could get out of hand.
When the US Center for Copyright Information announced the end of the Copyright Alert System last month, it framed the program as a success. "CAS succeeded in educating many people about the availability of legal content, as well as about issues associated with online infringement," the official statement read. Few would argue that "education" significantly reduced piracy, but piracy does seem to be in decline. Torrent networks have been targeted by law enforcement, making it more difficult for average people to illegally download content. Legitimate services like Netflix, Spotify and Stan have made it easier for consumers to get content legally. And the consolidation of the web into destinations like Facebook, Google and YouTube means filtering software is already being used on the internet's most highly-trafficked sites.
As it is, copyright holders should probably work with the systems they have, make their content easier to acquire and just accept that some violations will slip through the cracks.