DMCA 'reform' harbors return of SOPA

Behind the music and movie lobbyists' latest efforts to rewrite the DMCA lurk the restrictive remains of SOPA and PIPA legislation

DMCA ‘reform’ bill harbors return of SOPA

Stop me if you've heard this one before: The open Internet is under attack by lawyers and lobbyists hoping to promote their own narrow interests under the guise of reform.

Similar "reform" efforts gave us the controversial SOPA and PIPA legislation that died four years ago in the face of massive protests by Internet users. Those threats to free speech have since been recycled into backroom-negotiated trade deals and court cases.  

Now the same forces -- led primarily by the music and movie industries -- have set their sights on rewriting the "notice and takedown" provisions of the DMCA and replacing them with "notice and stay down."

Section 512 of the DMCA protects online service providers from legal liability for activity that takes place on their networks or websites, provided they meet certain safe harbor requirements -- such as taking down content that infringes copyrights when requested by copyright holders.

"Without the predictability provided by Section 512, the Internet would be a much less hospitable place for free speech and entrepreneurship," the Electronic Frontier Foundation (EFF) said in comments filed last month with the U.S. Copyright Office (USCO).

The number of DMCA takedown requests has grown exponentially in recent years, ever since the MPAA, RIAA, and other copyright holders began using algorithms to search out pirated content online. The number of takedowns fielded by Google so far this year has doubled compared to last. "At the rate it's going, Google may process a billion DMCA search requests by the end of 2016," Engadget reports.

While it may seem that the entertainment industry is trying to bury online services in takedowns, digital rights groups and Internet companies say the system is working roughly as intended.

"One of the central questions is whether the safe harbors are working as intended, and the answer is largely yes," said EFF Legal Director Corynne McSherry. "The safe harbors were supposed to give rights holders streamlined tools to police infringement, and give service providers clear rules so they could avoid liability for the potentially infringing acts of their users. Without those safe harbors, the Internet as we know it simply wouldn't exist, and our ability to create, innovate, and share ideas would suffer."

However, lobbyists for the music and movie industries argue that takedown notices are not adequately protecting copyrighted content because infringers can post the same content again with a different Web address on the same site. They want websites that profit from piracy -- not surprisingly, a lot of their wrath is focused on Google and YouTube -- to be taken down.

"Whole-site removal is ineffective and can easily result in censorship of lawful material," Google has responded. "Blogging sites contain millions of pages from hundreds of thousands of users as do social networking sites, e-commerce sites, and cloud computing services. All can inadvertently contain material that is infringing. It is rare indeed for a site to consist wholly of infringing material. This approach was widely rejected by the public and Congress in 2012 when proposed as part of SOPA."

The USCO has asked for public comment on Section 512 as part of its review of the system and is holding a series of roundtables -- hearings that digital rights advocacy group Fight for the Future says are closed-door sessions dominated by representatives and lobbyists from the copyright industry and rigged against the public interest.

"Representatives from public interest groups like Mozilla and EFF were completely outnumbered by organizations like the RIAA, MPAA, Digimarc, and Copyright Alliance," Jeffrey Lyons, CTO of Fight for the Future, said this week. "The end result was the lobbyists were able to skew the discussions in their favor."

In a post labeled "from the calm-down-sparky dept.," TechDirt describes the music industry's 97 pages of comments to the USCO as "an angry polemic against the Internet" -- and points out the irony that these same groups that basically wrote the DMCA in the first place are now whining about it.

TechDirt summarizes their argument:

We're not making as much money as we used to (ignoring that some of us are making much more than we used to) ... but we see big Internet companies making lots of money, so we're going to ignore that it's probably because they innovated and built services the public wanted while we sued our own biggest fans.

Google concurs, noting that "piracy thrives when consumer demand goes unmet by legitimate supply. Online services like Google Play, Spotify, Netflix, and iTunes have demonstrated that the most effective way to combat piracy on the Web is to offer attractive legal alternatives to consumers."

Since a major purpose of copyright law is to "promote the progress of the sciences and useful arts," the explosion of online activity, new services, and businesses seems to bear out that copyright law -- and protections -- are functioning. The entertainment industry has continued to grow over the past decades because -- not in spite -- of the development of new technologies and platforms, the EFF argues in its comments to the USCO.

The real problem with the DMCA, public advocacy groups say, is not one of inadequate copyright enforcement but that the notice-and-takedown process is often abused. A recent report from UC Berkeley found the system is riddled with misuse and overreach, as automated content filters take much legitimate content offline. The Google-backed study found that roughly 30 percent of the takedown requests it gets are dodgy.

"There's an ongoing concern that the DMCA revolves around a backwards, guilty-until-proven-innocent approach that discourages fair use (such as short clips in podcasts) and enables censorship," says Engadget. Fair use cases -- like the one involving a YouTube user who posted a sub-30-second video of her toddler learning to walk while Prince's "Let's Go Crazy" played in the background -- are often decided by courts in favor of the consumer. It's a fact that drives the music industry crazy, as evidenced in its complaints to the USCO. "[Apparently] it's some horrible burden to have to consider fair use before sending a takedown," TechDirt writes.

Fight for the Future and YouTube channel ChannelAwesome are leading a campaign against takedown abuse that generated 100,000 comments to the USCO last month. And the EFF has called on Congress to resist renewed efforts to implement de facto SOPA: "Given the explosion of the Internet economy and online speech under Section 512, and the predictable chill that would result from undermining its safe harbors, Congress should resist any imprecation to reverse course on intermediary liability."