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Is the DMCA an Effective Way to Take Down Infringing Content?

As promised at an end-of-the-year (2015) announcement, the U.S. Copyright Office has now launched a comment submission process about the “safe harbor provisions” of the Digital Millennium Copyright Act (DMCA).

The DMCA is often used by copyright owners to get infringing content—images, text, videos, music, even software—removed from problematic websites.

Section 512 of the DMCA, commonly referred to as the “safe harbor” or “take-down” provision of the law, provides an incentive for “service providers” such as website hosting companies and online publishers (including those who accept user-generated content) to remove infringing content posted by their customers under certain circumstances, including a proper notice from the copyright owner.

Since the arrival of the DMCA in 1998, website operators can avoid liability for their customers’ infringing activities if, among other things, they appoint an agent to receive notices and “expeditiously… remove, or disable access to, the material that is claimed to be infringing.”

Through the years, Section 512 of the DMCA has been both praised and criticized by just about everybody—copyright owners, website operators, publishers, bloggers and more.

There’s no doubt that Section 512 is frequently invoked by copyright owners. For example, Google has reported that it receives 2.2 million take-down notices every day.

But also, a controversy over music in a personal video on YouTube has been litigated for years, with the U.S. Court of Appeals for the Ninth Circuit ruling last year that copyright owners must consider the “fair use” doctrine before submitting a take-down notice.

A lot has changed since the DMCA was enacted 18 years ago. Indeed, in a Federal Register notice about the comments, the Copyright Office said:

Today, copyright owners send takedown notices requesting service providers to remove and disable access to hundreds of millions of instances of alleged infringement each year. The number of removal requests sent to service providers has increased dramatically since the enactment of section 512…

While Congress clearly understood that it would be essential to address online infringement as the internet continued to grow, it was likely difficult to anticipate the online world as we now know it…

As a result, website operators can become overwhelmed with take-down notices while copyright owners of all sizes often find the process unpredictable and frustrating.

So, the Copyright Office wants to know (among many other things):

  • Are the section 512 safe harbors working as Congress intended?
  • How effective is section 512’s notice-and-takedown process for addressing online infringement?
  • Does the notice-and-takedown process sufficiently address the reappearance of infringing material previously removed by a service provider in response to a notice?
  • How effective is the counternotification process for addressing false and mistaken assertions of infringement?

The Copyright Office is accepting comments on these and other questions until March 21, 2016. The answers it receive could shape the future of fighting infringement on the Internet.

However, unless and until anything changes, copyright owners and website publishers will continue to rely on the DMCA’s notice and take-down provisions as a popular method for coping with infringing content online.

By Doug Isenberg, Attorney & Founder of The GigaLaw Firm

Learn more by visiting The GigaLaw Firm website. Doug Isenberg also maintains a blog here.

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