Freedom Line Blog

On Thursday, March 13, the House Judiciary Intellectual Property (IP) Subcommittee will conduct a hearing regarding the Digital Millennium Copyright Act’s (DMCA’s) “notice and takedown” provisions.  It provides a critical opportunity for lawmakers to promote modernized, voluntary and much-needed initiatives to better execute the DMCA’s objective of sustaining the most open Internet environment possible while also combating piracy and IP theft.

Congress passed the DMCA over 15 years ago to simultaneously allow the Internet to flourish while ensuring that the IP rights of creators would be safeguarded, and wrongdoing prevented and punished.  The law’s notice and takedown provisions established the procedures for aggrieved creators to alert service providers that illegal content was being distributed by wrongful actors, and creating a “safe harbor” from prosecution for the service providers who follow the law.  When Internet entities receive takedown notices or discover violations themselves, they must remove the infringing material and terminate the accounts of flagrant actors when appropriate.  Seems fair enough.

Unfortunately, those provisions haven’t sufficiently fulfilled the DMCA’s goal of combating piracy.  In particular, Section 512 of the law, which sought “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital networked environment,” has instead too often provided shelter for violators because other actors haven’t taken sufficient efforts to stop infringement.  Property rights are no less sacred on the Internet than elsewhere, and theft is theft.

Fortunately, Congress can help correct the situation. Voluntary measures such as the 2007 User-Generated Content Principles, and the 2013 Copyright Alert System offer some helpful initiatives that ensure an open Internet while also protecting creators against rampant theft.  All stakeholders can pursue agreement on how to identify and address flagrant offenders, standardized technical measures such as filtering can be discussed, legitimate sites can be promoted in search results while illegitimate sites can be minimized and notice practices can be modernized and streamlined.  As another example, the Copyright Alert System (CAS) through which the music and film industries, along with the five largest Internet service providers, inform consumers about online piracy and direct them toward alternatives has received positive feedback to date.

Again, a wide array of voluntary, beneficial measures can be addressed and pursued.  What Congress shouldn’t do, however, is follow the defective advice of so-called “libertarian” and “conservative” opponents of IP rights employing flatly false scare tactics while turning a blind eye to piracy.  By working together, all interested parties can ensure continued Internet growth and enjoyment, while better protecting creators and innovators against unfair theft of their works.