A push to strengthen digital copyright law could end up fortifying what critics say is a weapon wielded to squelch online speech.
The Digital Millennium Copyright Act shields platforms from copyright liability if they remove infringing content posted by users when notified. But since 1998, the volume of internet content—and of infringement—has exploded beyond what the system was designed to handle.
The result is a law that allegedly kills too little infringing content but too much lawful speech.
“It can be weaponized for sure,” intellectual property attorney Eleanor Lackman of Mitchell Silberberg & Knupp LLP said.
Rightsholders decry ineffective DMCA “whack-a-mole” enforcement where infringing content pops back up almost as soon as it’s removed. But public interest groups and some lawyers say legitimate speech gets removed over mere allegations, and the system for fighting that and getting content restored is ineffective.
That tension complicates efforts to amend the DMCA. Groups, attorneys, and academics don’t agree on a path for addressing the mountain of disputes. That threatens to leave unresolved a problem with potentially big consequences—the targeting of speech.
Actress and TV host Ellen DeGeneres and media personality Dr. Drew have had criticism temporarily taken down via DMCA requests. Writer Luke O’Neil said in a June tweet that a source used a DMCA notice to have a link to an article he wrote for Vice Media Group taken off Twitter, then used another to have a screenshot of the email notifying O’Neil of the takedown notice stripped from a later tweet.
“As we get closer to the election, things are going to get more severe,” said Katharine Trendacosta, lead policy analyst for the Electronic Frontier Foundation.
Adding protection for rightsholders, as the Copyright Office has recommended, could make it even easier to get online content removed for political, business, or reputational purposes.
“It is an incredibly difficult problem, because you have a highly complex fact-dependent law combined with in some cases a very large-scale watching problem,” said copyright law professor Jennifer Urban of the University of California, Berkeley, who has studied DMCA notices extensively.
The law provides for counternotices to contest takedowns and get legitimate content restored, and for a right to sue over bad-faith notices.
An internet platform, faced with a counternotice, is supposed to remove content unless the accuser sues within two weeks. The Copyright Office’s view is that two weeks is “too long for legitimate speech to be blocked, and too short” to mount a lawsuit.
The office, among the recommendations in its report, said Congress should consider clarifying legal standards to make it easier for courts to strip safe harbor protection from platforms that ignore evidence of infringement and repeat infringers. That could add pressure on platforms to more aggressively cull infringing content, and increase the risk that more legitimate speech could get taken down as well.
The law already favors rightsholders when it comes to contested notices, letting bad-faith requests flourish with little risk of repercussion, Urban said. In one extensive sampling, she found nearly a third of takedown notices “raised substantive questions,” including whether the content should be allowed under the copyright law’s fair use doctrine.
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Beyond such cases, counternotices are almost never used—and with good reason, Urban and other attorneys said. Many parties accused of infringement don’t know the law well enough to understand their rights, attorneys say. And those who send counternotices must give accusers personal information and swear to the accuracy of the notice on penalty of perjury—requirements that go beyond those for takedown notices.
The DMCA provides for punishment of bad-faith notices, and a landmark 2015 Ninth Circuit opinion asserted that accusers must consider fair use before filing a takedown notice. But litigation is expensive, damages often hard to prove, and the standard of “knowingly materially misrepresents” high.
“Almost no plaintiffs have ever won” suits over bad-faith notices, technology law professor Eric Goldman of Santa Clara University said.
The DMCA can affect business as well. Intellectual property attorney Susan Goldsmith of McCarter & English LLP said a client selling clothes on Instagram had her entire page taken down shortly before Black Friday by a competitor’s baseless DMCA notice. Based on litigation costs and the potential award, it didn’t make sense to do more than send a “nasty letter,” she said.
Lawmakers are considering how to update the law. Senate Judiciary Intellectual Property Subcommittee Chairman Thom Tillis (R.N.C.) and Sen. Patrick Leahy (D-Vt.) asked the Copyright Office why its recommendations didn’t go even further to protect rightsholders.
It’s “possible and necessary” to mandate automated tools capable of recognizing works and effectively blocking infringement, copyright attorney Douglas E. Mirell of Greenberg Glusker Fields Claman & Machtinger LLP said.
“I appreciate free speech,” Mirell said. “But not at the cost of creators having no protection.”
But automated systems, which larger platforms have put in place, are prone to false positives and can’t assess for fair use, critics say.
Some attorneys suggest creating a triage system where a knowledgable arbiter could quickly make a decision when a party disputes removal, filtering obvious infringement and abuse. The losing party could still pursue legal action. But Goldman said there would still be too many disputable cases.
Urban advocated reformulating DMCA incentives: reduce counternotice barriers, increase penalties for bad initial notices, and apply a lower “recklessness” standard to bad-faith notices and counternotices.
Still, the volume of conflicts and competing interests could make change incredibly difficult, if not impossible, several attorneys said.
“I’ve been on both sides of these issues,” Lackman said. “I don’t know what the solution is.”
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