Last week the USPTO and NTIA held a public meeting to discuss five copyright issues raised in the recent green paper titled “Copyright Policy, Creativity, and Innovation in the Digital Economy” released by the Commerce Department’s Internet Policy Task Force. The Green Paper, and the meeting, divides the discussion into five separate areas. One of the sections considers, “Improving the Operation of the Notice and Takedown System.” The paper proposes a series of meetings to focus on improving the effectiveness of the Digital Millennium Copyright Act’s (DMCA)’s notice-and-takedown system.
Given that no system is perfect, and clearly in an area of rapid advancement such as with technology, laws do need occasional reconsideration, ongoing conversations make sense. Improvements should always be considered but the benefits and challenges that would be posed to all parties under a new regime must be weighed against the challenges of the current system.
This very notion of conversation and cooperation was contemplated by Congress and built in to the DMCA, via the “safe harbor provisions”, which was designed and overtly encourages “service providers” and copyrights holders to work together to solve copyright infringement challenges. In other words, Congress attempted to legislatively encourage all parties in what we now call the Internet ecosystem to work together as a community to address concerns. Parties were encouraged to work on issues because even in the very beginning of the “Internet revolution” it was clear that challenges not contemplated would arise as technology continued to advance.
Consider the alternative – a system where every time a problem is raised that rights holders or service providers run to Congress to seek a solution to their problem. A more ponderous, inefficient, and moribund, government dependent system could hardly be imagined. Or reflect on the system before the DMCA when courts were flooded with cease and desist orders regarding copyrighted material, costing service providers precious resources and preventing the rapid removal of infringing material. The inefficiencies of that system are what drove whole industries to lobby Congress for years to intervene.
So, when asked specifically about “establishing a multi-stakeholder dialogue on improving the operation of the notice-and-takedown system for removing infringing content from the Internet under the Digital Millennium Copyright Act (DMCA)” the answer is “yes,” such dialogue should be encouraged. Any government driven efforts along these lines should actively seek to include all players in the Internet ecosystem whether rights holder or service provider, cloud companies or search engines, as all have an equal stake in the outcome of any government discussions. Just as the net was cast wide during the DMCA deliberations so too should it be now. In addition, as it was then, the spirit of finding solutions should lead the process. Too much is at stake for our current and future economy to do otherwise – all stake holders have something to offer.
Perhaps more important are the private sector voluntary efforts and dialogue that may be encouraged by government, but which do not involve government routinely or as a key part of any process. These efforts were come even closer to the spirit of the Act. Such efforts will be the only way that challenges can be adequately addressed.
One recent example is the Copyright Alert System, a new take down regime that did not require Congressional action. According to the Center for Copyright Information , which coordinates the System, the “Copyright Alerts are part of a progressive educational system to help subscribers understand the significance of protecting copyright in the digital environment, to advise them about the importance of avoiding inadvertent or intentional online distribution of copyrighted content, and to suggest legal ways to obtain digital content. These alerts will be similar to current credit card fraud alerts.”
The new system takes head on the challenge of how potential copyright infringers should be handled. Whether one likes this solution or not, this result is better than a years-long legislative battle, which may fail to reach any sort of resolution. This solution was reached because responsible, serious parties voluntarily engaged in a dialogue. Success will come as all parties understand that they cannot stand on their own, that in fact, an economically thriving digital ecosystem requires good faith cooperation, within the bounds of the law, with an eye towards what is best for the broader ecosystem. Robust dialogue made in good faith is a clear good step in achieving this goal. Less infringement combined with great legal choices available in many places for consumers is in the best interest of all.
But challenges do exist. A common complaint by rights holders is that they must send multiple notices for the same infringing material that can be found on the same Internet site. They would prefer to send one notice and have the site take down the same infringing content wherever and whenever found without the need of a new, URL specific notice for each instance. For their part, Internet companies complain that they spend too much time complying with all of the notices, time and money spent away from their principle endeavors.
The challenge is real. As Professor Bruce Boyden recently pointed out, from March through August 2013, the MPAA’s six member companies sent 25.2 million takedown requests to non-user generated content Websites and to search engines to remove infringing content located at specific URLs. Of those requests, 13.2 million were to a site to remove an infringing file and 12 million were to a search engine to remove a link from search results.
No law will ever address every issue, so private stakeholders should be encouraged, and should want, to craft infrastructure that solves the problems they perceive. Collaborative meetings are a good first step.
Whether addressing or identifying a problem that needs to be addressed, a gathering of stakeholders is a solid step towards improving a system where many see the need for improvements.
Conversations should center on creators and how they are effected, to hear ideas on how to enhance the copyright regime to make sure we have and maintain a pro-creator copyright policy. Such efforts reinforce the balance that the drafters of the DMCA tried to achieve, which was that all parties involved, from rights holder to intermediaries to Web site owners have their rights preserved.
