Fixing The Digital Millennium Copyright Act of 1998

The Digital Millennium Copyright Act of 1998 is a controversial piece of legislation. While much of the criticism of the law is misplaced, there are definite problems with it. Given this, let’s talk about how to go about fixing the Digital Millennium Copyright Act.

What Is It?

As the name suggests, the “DMCA” is an attempt to create a workable solution for copyright claims given the nature of the web. Prior to the Internet, it was rare for one party to share content with another party in a social manner. Simply put, there isn’t a real world equivalent to forums and social media sites such as Facebook.

People complain about the DMCA, but they should be careful in doing so. Sites such as Facebook, YouTube, Twitter could not exist without the law being in place. Why not? An avalanche of copyright infringement lawsuits would put the sites out of business.

Consider Google. It gets 1.6 million DMCA complaints a week. Without the DMCA being in place, a significant percentage of these claims would convert to lawsuits in which Google would be named as a defendant in addition to the party allegedly posting infringing content. It would be impossible for the company to function. Now image what would happen to a smaller site.

Safe Harbor

How does the DMCA save sites? The law contains an immunity provision known as a “safe harbor” precluding any copyright infringement lawsuit for monetary damages being filed against a site in which a third party has posted an allegedly infringing item. In short, the copyright holder can only go after the party posting the content, not the site.

The site, however, must work with the copyright owner to maintain this immunity. The site must make it simple for the copyright holder to make a claim with the site by, for example, designating a DMCA agent service or person to receive complaints. Once the complaint is made, the site must then take down the offending content while giving the party posting it a chance to counter the claim of the copyright holder. So long as the site takes these steps and a few others, it cannot be sued.

Misunderstood Law

The DMCA is perhaps one of the more misunderstood laws on the books. When a person receives a DMCA complaint notice from a site, they tend to complain the site isn’t deciding the matter in their favor. Such statements are wrong. The problem is the site is not involved in the interpretation of the merits of the claim. The DMCA indirectly requires the site to not make such a determination. Why? If it does, the site loses its immunity. An example can help show how this works.

People complain constantly about YouTube when it comes to DMCA complaints. The typical view is “YouTube took down my video, but it doesn’t infringe because of fair use concepts” or something similar. The problem with this argument is YouTube is not the judge in a dispute between the posting party and the copyright holder. The DMCA is a process to handle the claim. It is not a trial with the site being set up as the judge. YouTube, Facebook, forum owners and the like are not legally trained so how would their employees possibly make the evaluations correctly?

An individual who thinks their content was taken down unfairly does have a potential course of action. The can file a counterclaim with the site in question, YouTube in our example. This counterclaim information is then forwarded to the copyright holder. The copyright holder than has a set time period of roughly two weeks to file a lawsuit against the person posting the content. If that occurs, the “fair use” argument can be asserted as a defense in the action.

And if the lawsuit isn’t filed? YouTube will repost the video.

Problems with DMCA

The above discussion isn’t to say there aren’t problems with the DMCA. There clearly are. One major problem is copyright holders sending out automated notices for just about any possible interpretation of their copyright. In many cases, there is no validity to the claim.

In response, one would think a person impacted by the claim would have the right to sue the copyright holder. This¬†interpretation would be correct, but there is a major problem. One has to prove the copyright owner “knowingly” misrepresented material facts in their claim. This burden is not easy to meet as the other party can often just claim they made a mistake, which does not meet the burden of proof.

Fixing the DMCA

Coming up with potential fixes for the DMCA is difficult, to say the least. Of all the problems associated with the law, the abuse of it by copyright holders is by far the biggest.

DMCA complaints are now used not so much to protect copyrighted material, but to gain competitive advantages. It is not uncommon for parties to send out notices to try to take down competitor content or to erase negative remarks and reviews online. This was never the intent of the individuals who created the law. It is a problem that needs to be addressed soon or the DMCA will become a complete joke. Google estimates that of the millions of DMCA complaints it receives, fully 35 percent are nonsense. That is a massive number.

So, what is the answer to the problem? There are a couple of distinct steps. Banning software that automates the complaint process should be the first step. Just sending out thousands of notices in an automated blast contradicts the purpose of the law. Automated DMCA claims are the equivalent of spam in many instances. Eliminate them, and you eliminate much of the problem.

Next, we should lower the standard for suing a party who makes false DMCA claims. Instead of “knowingly”, the standard should be dropped to “negligently.” This¬†change would put a halt to a high percentage of the DMCA claims being made online by raising the risk level .

The impact on parties making legitimate claims would be negligible. On the other hand, individuals and businesses using DMCA complaints to bludgeon others would be. Is it a perfect solution? No. Fixing the DMCA to make it function perfectly for all parties is impossible. This approach, however, would go a long way to making it work better for nearly everyone and would cut back on the abuses we see.

Richard A. Chapo, Esq.

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