Copyright "Notice and Takedown" System Needs Fixing
by
Randolph J. May * and Seth L. Cooper **
May 9, 2016
Internet streaming is fast becoming the most popular way to access music and movies. Yet a massive amount of online piracy continues to cause substantial harm to copyright holders. Infringing audio and video content can also be accessed readily through search engines and on user-uploaded websites.
To combat online copyright infringement, Congress passed the Digital Millennium Copyright Act (DMCA) in 1998. The statute established a "notice and takedown" system as a means of removing copyright-infringing content from the Internet. But the system is now severely strained, and, in its current form, it fails to provide adequate protection from online infringement to copyright holders. Indeed, the International Federation of the Phonographic Industry's (IFPI) recently released report states that, last year, 94 percent of all of the "take down" notices sent by IFPI pertained to "recordings uploaded repeatedly" to sites that already had been notified that the content was posted without permission.
The DMCA gives online service providers legal immunity when their users engage in copyright infringement. By limiting the liability of online service providers for infringing posts by their users, the statute, rightly, was intended not to restrict lawful online speech and expression. The law's core principles - protection for copyright holders and immunity for online service providers who expeditiously remove infringing content - are solid. But the implementation of those principles needs revamping.
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Right now, commendably, the U.S. Copyright Office is conducting a needed review of notice and takedown system. As part of that review, the Copyright Office sponsored public roundtables on Section 512 earlier this month in New York. Additional public roundtables are set for May 12 and 13 in San Francisco. Hopefully, the Copyright Office's review will prompt either the stakeholders themselves or Congress to address the system's shortcomings to improve its efficacy.
The Constitution's Intellectual Property Clause, contained in Article I, Section 8, provides Congress power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." In order to adequately secure copyrights in music, movies and other media, the notice and takedown system needs to be fixed to comport with today's digital realities.
* Randolph J. May is President of the Free State Foundation, an independent, nonpartisan free market-oriented think tank located in Rockville, Maryland. Copyright 'Notice and Takedown' System Needs Fixing was published in The Hill on May 9, 2016.
** Seth L. Cooper is a Senior Fellow of the Free State Foundation.
A PDF of this Perspectives is here.
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The Constitutional Foundations of Intellectual Property - A Natural Rights Perspective, by Randolph J. May and Seth L. Cooper, is available from Amazon here or from Carolina Academic Press here.
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