Copyright holders have a problem with their content appearing on the Internet without permission. They argue that if they do not remove that content and the links that connect to it, anyone is able to access it for free, thus undermining their business model.
As a result, every week millions of takedown notices are sent to countless platforms demanding that unauthorized movies, music, TV shows, software and images are removed for breaching copyright law.
But regularly, copyright holders say, after being taken down that same content reappears after being re-uploaded or reindexed by offending sites. This results in a circular and never-ending game of whac-a-mole.
To solve this problem entertainment industry groups are suggesting changes to the DMCA that would dictate that once content is taken down, it should never again appear on that same platform. While easily said, the mechanics of that dream are not straightforward.
The latest organization to express concerns is the Wikimedia Foundation, the group behind the ever-popular Wikipedia service. Wikimedia feels that its current handling of copyright issues would only be hindered by changes to the DMCA.
“On the Wikimedia projects, particularly Wikimedia Commons, the DMCA’s notice-and-takedown process plays only a small role in preventing copyright infringement,” says Wikimedia Foundation Legal Counsel, Charles M. Roslof.
“The community members who voluntarily enforce project policies do the heavy lifting by removing files that infringe copyright. As a result, we receive very few valid takedown notices — only 12 in all of 2015.”
Roslof says that the operation’s current processes work well to keep infringement to a minimum, with volunteers taking care of the majority of copyright issues before rightsholders even notice.
“When something does stick around long enough, the notice-and-takedown process is an effective backstop. This system can exist because of the current legal regime,” Roslof notes.
Wikimedia believes that if the DMCA is tightened to include a “takedown, staydown” mandate – effectively a requirement for platforms to proactively filter all uploaded content – that could negatively affect non-profits and the service they provide to the public.
“[It] is costly to implement such systems well — and it would be exceptionally hard on nonprofits like us,” Roslof says.
“First, the variety of content and file types hosted on the Wikimedia projects makes it an incredibly difficult technological challenge to build such a tool that both works effectively and doesn’t over-remove files and chill speech. Second, being forced to monitor for infringement ourselves would reduce the Wikimedia communities’ ability to govern the projects.”
Of course, it will come as no surprise that a major underlying factor with “takedown, staydown” is the fear that by not complying each and every time, platforms such as those operated by Wikimedia could be held liable under copyright law and face stiff penalties.
“[S]tatutory damages — up to $150,000 for a single case of copyright infringement — create strong incentives for platforms to strictly comply with the notice-and-takedown process. Since any mistake in leaving up files that infringe copyright could cost tens of thousands of dollars, the section 512 safe harbors are crucial for platforms’ continued existence,” Roslof adds.
Finally, in the near future the US Copyright Office will again be inviting comments on Section 512 of the DMCA. Wikimedia hopes that its users and the general public will take the time to get involved.
“The fundamental purpose of copyright law is not to benefit authors but to ensure the public is able to enjoy new creative works. It is therefore important to ensure that the voices of the public and public interest are represented in these discussions,” Roslof concludes.