Why Everyone Who Hates the DMCA is Wrong.

Service providers hate it because it forces them to battle their users. Users hate it because it stops them from doing what they want.

The classic DMCA scenario involves Consumer Cameron uploading a video of Cousin Carl taking selfies with R Kelly playing in the background. The video is uploaded to any video hosting service. R Kelly’s people have hired an independent firm to remove unauthorized content from the internet. This company, MegaCorp, issues a DMCA to the hosting company. The hosting company takes down the video and forwards the DMCA notice from MegaCorp to Consumer Cameron. Consumer Cameron has had their own personal video taken down, some random MegaCorp took it down with the DMCA, and poor Cameron thinks there is no recourse.

The Digital Millenium Copyright Act (DMCA) is an essential function for the modern use of the internet. The DMCA is a law that gives digital service providers a safe harbor if they follow the procedures detailed in the statute. More often, the consumer experience is based solely on DMCA takedown notices that remove their content or deny them access to content.

Google would not be able to function without the DMCA safeharbor provisions. Because, when Google’s search results, Google Caching, or Google e-mail hosted any content not authorized on Google servers, Google would infringe every time its automated processes copy or host unauthorized content. A simple repeal of the DMCA would bring all service providers to a grinding halt with the infinite amount of copying that occurs due to user submitted content. All of this user submitted content and automated search functions would act as infringement on another’s content. While fair use may offer some protection, the fact that fair use is about as identifiable as obscenity (you know it when you see it), it offers little concrete guidance in comparison to the DMCA. (17 U.S. Code § 512)

Most DMCA animosity arises, I think, due to ignorance of the entire DMCA process.

The most well known part, the DMCA takedown (17 U.S. § 512(c)(1)(C), is well publicized because consumers encounter it in two main ways: The content they were trying to view is no longer available because of the DMCA, or they received a DMCA takedown for content they shared. To be clear, the service provider is technically the entity that received the notice. The service provider took down the content to maintain their DMCA safe harbor, and forwarded the takedown notice to the user because the Act requires it but also so they can absolve themselves of any blame from the users (17 U.S. § 512(g)(2)(A)).

For many people this is a jarring experience, especially if they feel like their content was wrongly taken down. They feel like they have been unilaterally violated and they are without recourse. They feel censored by some Corporate entity that may have no legitimate claim to the content (growing moreso as copyright enforcement processes become automated). The good news, that these unfortunate victims of corporate misuse of copyright protection may not know about, is the DMCA offers a recourse for content submitters to respond to a DMCA takedown.

The less well known second part to the DMCA process is the DMCA counter notice.(17 U.S. § 512(g)(3)). This is the structural response to a DMCA takedown. The DMCA counter notice provides for users to notify the service provider that the user contests the validity of the DMCA takedown, that they are either the true owners of the content and free to do with it as they please, or they have some other basis, like fair use, to share the content without copyright infringement.

After a DMCA counter notice, the original DMCA takedown claimant is UNABLE to reassert the takedown against the service provider unless they have “filed an action seeking a court order to restrain the subscriber from engaging in infringing activity.”(17 U.S. § 512(g)(2)(C)). The DMCA safeharbor provisions allow the service provider to deny the request and effectively shift the liability to the user. The next legal step is to take whomever made the counter notice to court – just like it would be if a person copied T-shirt designs, art, or any other tangible good which currently offers mere non-digital copyright protection. While some might contend: “How can anyone compete with the legal departments of mega-corporations harassing poor individual artists?” This is fundamental legal problem for which there is little structural response – except the opportunity to countersue for frivolous litigation – when there is clearly no legal basis to challenge someone’s use of content. This is an issue that the DMCA is not intended to resolve.

Ultimately, the alleged offender of copyright infringement is free to do as she pleases and host the content online and the DMCA does not short-cut the legal process by which the copyright holder would assert their rights. However, it is somewhat of a gamble. It makes the content submitter really reconsider: “Do I really have the legal right to use the content in this way?” before re-asserting their rights with a counternotice. This is a good compromise between service users and copyright holders to quickly respond to the viral speed in which content can spread online, and the desire for users to legally share content that they own or are permitted to share under fair use.

Service providers are wrong to hate it because, it is the sole basis under which they can allow user submitted content without the fear that users will submit illegal content and thus make them liable as infringers. Without the DMCA safeharbor provisions, service providers would be liable for hosting infringing content.

Users are wrong to hate it because, they are technically no worse off with the DMCA as they would be without it. While it might be frustrating that some random corporation wants to stifle your commentary on their new movie in which the user submitted short clips, the user is free to use the counter notice response and await the suit the corporation is likely to file only if the company feels they have a valid claim.

While the DMCA does not seek to, and cannot resolve, the competing interests in copyright’s goal to protect and encourage creation, fair use’s goal to balance copyright protection with free speech, and the misuse of legal processes – the DMCA creates a market compromise that facilitates the interests in both groups to create and share in a way that would otherwise be impossible without the DMCA.

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Author: Glen Colborn, Esq.