Freedom Line Blog

Last week, we highlighted an important House Judiciary Intellectual Property Subcommittee hearing on the Digital Millennium Copyright Act’s (DMCA’s) critical “notice and takedown” provisions.  The hearing provided the opportunity for lawmakers to promote a modernized, voluntary and necessary campaign to achieve the DMCA’s underlying goal of fighting Internet piracy and intellectual property theft while maintaining an open Internet.

Fortunately, there’s good news to report one week later.

Almost every member of the Committee, Democrat and Republican alike, concurred that private industry actors must undertake voluntary, market-friendly efforts to correct the massive and improper scourge of online piracy and IP theft.  That is, after all, the purpose of the DMCA structure itself.

Notably, the hearing featured persuasive testimony from Grammy-winning musical artist Maria Schneider, who shared her real-life experiences to illustrate the problem to be addressed.  Ms. Schneider explained how she actually often spends more time and effort removing pirated copies of her performances than she does in the creative process.  In fact, she testified that her battle has cost her over $100,000, and she provided a demonstration of how difficult it is to remove one’s own stolen property from rogue websites.  Ms. Schneider also noted that when YouTube actually agrees to remove pirated material, it unhelpfully posts a scowling frustrated-face icon with the banner “This video is no longer available due to a copyright claim by Maria Schneider – sorry about that.”  That suggests that Ms. Schneider or others who simply seek to protect their hard work and property rights are somehow culpable for the situation, and it certainly doesn’t suggest respect for the rights of creators.

It is therefore critical, as Ms. Schneider noted, that websites, service providers and other market actors more effectively educate consumers and anyone uploading content about the dangers and costs of piracy and IP violations, and make greater efforts to confirm that content being uploaded is done legally.  The current “whack-a-mole” routine is neither effective nor justified.  But through voluntary, market-based, common-sense practices, we can collectively combat online piracy while protecting the rights of creators and consumers alike.

It was good to see the Subcommittee hearing result in steps toward that beneficial end.

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.