It’s Time To Fix DMCA Takedowns

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A few days ago, a teacher posted a copyright Pearson Education personality inventory on a blog at Pearson served a Digital Millennium Copyright Act notice, which set off a series of events that led to nearly 1.5 million student and teacher blogs going temporarily dark after Edublogs’ hosting service took its servers offline. (You can read the details of the affair in this Techdirt account. By Oct. 16, Edublogs was back up, apparently with a new hosting service.)

My purpose isn’t to defend or attack Pearson–plenty of others have done that–or even to rail against DMCA, which is full of both useful and ridiculous provisions. But its clear that a section of the law that was created to protect web sites hosting third-party content has gone off the rails.

DMCA requires site operators to take down copyright-infringing material at the request of the copyright holder. The key language, known as Section 512 or the safe harbor provision, is part of a compromise that bars infringement claims against sites such as YouTube as long as they make good-faith efforts to keep infringing content out and comply with takedown notices. It was this provision that allowed YouTube to fend off a suit by Viacom (still wending its way through appeals) charging massive copyright infringement. Without it, the whole idea of user-generated web content would long ago have collapsed under an assault of copyright suits.

But there are problems with the whole DMCA takedown process and they are getting worse. To ensure safe harbor protection, many sites have turned to algorithms that hunt for infringing content and these programs make mistakes, lots of them. For example, YouTube blocked posts of Michele Obama’s speech to the Democratic National convention because the address had been carried in copyrighted network broadcasts.

Content owners also use algorithms to hunt for infringement, and these too have caused trouble. Earlier this month, a Microsoft infringement-hunter went a bit crazy and sent Google 440,000 takedown requests, including pages posted by Wikipedia, the BBC, and the U.S. Environmental Protection Agency.

Aggressive copyright enforcement backed by takedown requests has targeted political advertising.  Some of this is legitimate, if perhaps unwise;  copyright holders have the right to disapprove the use of their material in ads.  But much, including network objections to the use of news clips and BMG’s attempt to block airing of ads featuring President Obama singing an Al Green song, stomp on the fair use exemption built into copyright law. (The Center for Democracy & Technology has a good analysis of the problem. It was written during the 2010 election season, but applies as well to this year.)

On the whole, the Section 512 and the DMCA takedown process has worked reasonably well at balancing interests, but there is evidence that the playing field is starting to tilt toward rights holders. I think some relatively  modest reforms are needed to restore balance (even though I am always reluctant to propose any copyright law changes on the principle  that the law almost always emerges from Congress in worse shape than it went in.)

First, we need a way to minimize collateral damage. Takedowns should be limited to to pages containing infringing material and the practice of taking down whole sites because of a small amount of potential infringement must stop. In the case of Edublogs, the takedown came after the site operator,, had blocked the offending post but had accidentally left a copy in a server cache. The  hosting service just did the quickest and simplest thing and pulled down the whole site.

Second, the practice of making sweeping takedown requests at the least hint of infringement needs to be reined in by penalizing false or overbroad claims. Section 512(f) of DMCA makes it possible to recover damages for a takedown that “knowingly materially misrepresents” a claim. But the law sets a very high bar for such recovery and it simply is not a viable alternative for a blogger, or anyone much smaller than YouTube, to bring a damages case against, say, Warner Bros. We need a more effective way to discourage over broad takedown requests and to compensate victims of false claims.

Copyright law, and intellectual property law in general, is all about striking a balance, weighing the rights of content producers against those of users and consumers. In recent years, the debate has been dominated by copyright maximalists, who want to restrict fair use into oblivion, and minimalists, who believe copyright is evil in principle or who think that fair use is whatever use they wish to make. Both are wrong, and they stand in the way of reasonable solutions.