By Steven Tjoe

On Thursday March 13, the House Judiciary Committee held a hearing on the Digital Millennium Copyright Act’s (DMCA) notice and takedown system.  Among the witnesses testifying at the hearing was CPIP Fellow Professor Sean O’Connor (Washington University School of Law), who offered his insights on Section 512 from his unique position as a law professor, former musician, and counsel to web businesses.  Professor O’Connor observed that while the notice and takedown system may have operated effectively in the late 90s, today it no longer works for any of its intended beneficiaries.

Professor O’Connor traced the shared problems faced by websites and creators today to an unfortunate and unintended consequence of Section 512: the incentive for web businesses not to monitor content.  According to Professor O’Connor, this incentive has emboldened bad actors and fostered a culture of copyright contempt.  Under current law, web businesses (including the small, start-up web businesses Professor O’Connor counsels) are generally given an odd piece of advice by their attorneys: “don’t monitor the content on your site.”  The rationale is that there are serious potential downsides to monitoring content, but no upsides.  Monitoring content can expose web businesses to knowledge or awareness of infringement, and they risk losing their safe harbor under Section 512.  The end result is that web businesses don’t monitor (or even look), and as they turn a blind eye, bad actors are emboldened to upload and continuously re-post stolen works regardless of how many times they are taken down.

Professor O’Connor proposed two solutions to return some sanity to the process and encourage all parties involved to “do the right thing.”  His proposals target the most egregious cases: continuous re-posting of wholesale copies of creators’ works (not mash-ups, parodies, or excerpts, but infringing copies of the entire work).  Targeting these egregious cases makes sense given that the continuous re-posting of blatantly (really, inarguably) infringing wholesale copies accounts for the vast majority of takedown notices.

First, Professor O’Connor proposed a “notice and stay-down” system.  In such a system, once a business receives a takedown notice for a given work, it would monitor for re-posted copies of the same work (which it has already been notified is infringing) and take them down without having to receive additional notices for that work.  Ideally, web businesses should adopt voluntary best practices to monitor and immediately remove re-posted works.  Absent a voluntary adoption, Professor O’Connor believes that Congress should consider amending the DMCA to add an affirmative duty to monitor and remove re-posted infringing works.

This solution reflects the technological advances that have become a reality since the DMCA was passed in 1998.  Automated systems like the YouTube Content ID System (YouTube is owned by Google) can now effectively identify copyrighted works.  Adapting such technologies to identify works that have already been taken down under Section 512 and adding those works to a filter catalog would be one way to automate a notice and stay-down system to deter repeat offenders.  This would not only alleviate the cost (on both sides) of repeated takedowns for the same re-posted works, but would also systematically curb instances of blatant, wholesale copyright infringement.

Second, Professor O’Connor proposed revisiting and strengthening the DMCA’s red flag provisions by codifying a stronger version of the “willful blindness” doctrine that courts have narrowly interpreted.  Some courts have failed to find willful blindness even in cases involving very high volumes of infringing activity on a website.  In his written testimony, Professor O’Connor notes that “[t]he ‘don’t monitor’ advice and glamorization of a piracy culture means that many websites are in fact turning a blind eye to extensive infringement on their sites.”  By defining willful blindness to discourage today’s common “do not look” policy, we could combat the culture of copyright contempt that emboldens bad actors and repeat infringers.

Testimony by some of the other witnesses at the hearing corroborated the significant problems with the current notice and takedown system.  Paul F. Doda, Global Litigation Counsel for Elsevier (a premier publishing company), noted that despite rigorously issuing takedown notices, Elsevier encounters a growing number of copyright infringements each year.  The same literary works that are taken down are repeatedly re-uploaded on the same sites hundreds of times after being taken down.

From a more general standpoint, the sheer volume of takedown notices each year is staggering.  Katherine Oyama, Senior Copyright Policy Counsel at Google, testified that Google received 230 million takedown notices in 2013 alone (acting on 99% of those).  As instances of infringement continue to increase, the expense of locating, identifying, and then sending (or acting on) separate takedown notices for each infringing file has become increasingly significant and prohibitive, especially for creative up-starts and smaller web businesses.

From an artist’s standpoint, Maria Schneider (three-time GRAMMY-winning composer, conductor, and producer of jazz and classical music) testified to the real-world harm artists suffer despite the current “solutions” offered by Section 512.  Ms. Schneider described her experience with the notice and takedown system as an “endless whack-a-mole game” where, immediately after being taken down, her work reappears on the same sites she sent takedown notices to, offering her no relief from constant infringement.  She observed that independent artists are “hemorrhaging red ink” on their intellectual property.  Worse yet, policing the constant re-posting of stolen copies of their work is incredibly time-consuming and defers the ability of independent artists to focus on artistic endeavors, an effect Ms. Schneider fears will prove disastrous to young, aspiring artists and the future of the industry.

Simply put, it is time to update the notice and takedown system to reflect the realities of our digital age.