When it comes to takedown notices, it often seems like alleged infringers are assumed guilty until proven innocent. The process that allows content owners to remove allegedly infringing content from websites is far too often abused. Even in cases where there is no infringement, the content is usually removed immediately, taken down for a minimum of 10 days, and is sometimes never replaced. This is particularly worrisome in politically significant or time-sensitive cases where the cost of a faulty or malicious takedown might outweigh the benefit of keeping the content offline for a week and a half.
How the Notice-and-Takedown Process Works Now
The DMCA grants intermediary services such as YouTube and ISPs a certain “safe harbor” against copyright lawsuits— if they meet certain conditions, they are not held responsible for the infringement that happens on their networks, nor are they responsible for policing them.
For websites and other online hosts of content, that includes following notice-and-takedown rules. When a copyright holder tells a website to take down a video, song, image, or any other kind of user-posted content, the site is obligated to remove it. If the site refuses to follow this notice-and-takedown process, the safe harbor privileges are taken away and the copyright holder can file legal action against them. (This safe harbor provision allows websites to grow quickly without having to become experts in copyright law and pre-clear everything that a user posts to the site.)
Even though the person who uploaded the content to the site can file a “counter-notice,” the allegedly infringing content must remain offline for a minimum of 10 days. Free speech problems are compounded by the fact that many wrongful accusations are either never responded to or are never penalized.
How to Improve the Process and Prevent Abuses
In order to curb these abuses, Public Knowledge proposes several ways to strengthen and improve the process under the Digital Millennium Copyright Act (DMCA).
1. Penalize Bogus Takedowns
Currently, someone who sends a takedown notice while knowing that the targeted material actually isn’t infringing can be made to pay costs and attorneys fees to the service provider or to the wrongfully accused alleged infringer. However, the penalties aren’t necessarily deterring bogus takedown notices. Sometimes the takedown sender may believe the material is infringing, but they know they aren’t the copyright holder. Or they may not have knowingly lied about the infringement status, but acted recklessly in sending unverified takedowns (for instance, when a copyright holder uses a computer script to send thousands of takedown notices without reviewing them). Penalties for misrepresentations in sending “putback” counter-notices are similarly narrow, though there seems to be less of a tendency for their abuse.
This proposal broadens the range of mischaracterizations that can be penalized. Both knowing and reckless misrepresentations are prohibited, and those misrepresentations can be about not just whether the material is or isn’t infringing, but also about the notice-sender’s identity. The proposal also includes penalties beyond fees and costs; the harmed party can claim actual damages or opt for statutory damages between $200 and $2,500, and a judge can increase the penalty beyond that up to $25,000 if the misrepresentation was willful.
2. Require Accuracy of Takedown Requests
Currently, under penalty of perjury, senders of takedown notices are only required to state that they are authorized to act on behalf of the holder of an infringed copyright. While they are also required to also state that the information in their notice is accurate as far as they know, this statement isn’t necessarily made under penalty of perjury. This proposal changes that, so that misrepresentations and faulty copyright claims made in the notice would also be subject to perjury.
3. Make Takedown Requests Public
Currently, there is no reliable way of knowing who is sending takedown notices, how often, in what volume, and what for. This proposal would require a copy of a takedown notice to be sent to the Copyright Office, which will house a free, searchable database of all such notices.
4. Facilitate “Safe Harbor” Registration
Right now, any online host (usually a website) who wants to take advantage of the DMCA safe harbors has to register a “designated agent” with the Copyright Office (via a somewhat cumbersome process) and also to provide the contact information for this agent in an obvious place on the website. This proposal makes it so that doing either of these two things will allow a provider to take advantage of the safe harbor. This way, smaller entities that do not register agents with the Copyright Office will be able to avail themselves of the DMCA if their website provides accurate information by which a rightsholder can contact the agent. Likewise, a service provider whose contact information has been registered with the Copyright Office will not lose the safe harbor if the contact information happens to be missing from their website, or located in an unintentionally obscure place.
5. Restore Removed Content Promptly
Right now, when an online host receives a takedown notice, it has to take the material down “expeditiously.” However, when the host receives a counter-notice asking for the material to be replaced, it is required to wait 10 days before doing so. This means that any notice, no matter how frivolous, is likely to result in online material being taken down for a minimum of 10 days. For a lot of politically sensitive and newsworthy topics—particularly issues that a copyright abuser might want to exploit, this is far too long.
This proposal eliminates the mandatory 10-day putback waiting period, so that a service provider must promptly replace the material and let the takedown sender know it is doing so. The material should be removed again if the host receives another notice after the putback that the takedown sender has filed suit in court to enjoin the posting of the material. Additionally, this amendment requires an online host, when it sends a notice of takedown to the uploading user, to let the user know of the ability to send a putback counter-notice.
6. Extend “Safe Harbor” to Related Issues
Service providers can currently take advantage of the DMCA safe harbor provisions if their users are accused of copyright infringement. However, providers’ protection against their users’ infringement of other types of laws is not so clear. This proposal would ensure that online service providers could take advantage of the same safe harbor against accusations that their users are engaging in unauthorized fixation or trafficking in sound recordings and music videos (17 U.S.C. § 1101), circumvention of DRM (17 U.S.C. § 1201) or removal of rights management information (17 U.S.C. § 1202).