My comments about the DMCA

So, today I just sent some comments to the U.S. Copyright Office regarding issues with the DMCA, and how to fix them. I used the form at takedownabuse.org in order to do it.

Yes, I know the deadline passed over a week ago. (It’s been a busy month.) I fully expect the comment to be ignored. But supposedly the takedownabuse.org folks are turning late submissions into a petition, so who knows, maybe it will make a small difference.

So, without further ado, here is the comment.

My name is Karl Giesing. I am currently employed as a programmer at a large educational publishing company. For many years, I was also an underground musician. So, I am familiar with many sides of the copyright debate, and have been following copyright law for a number of years.

I realize that this comment is being sent after the April 1st deadline, and I apologize for that. I am hoping that you will still find this comment relevant.

I am using the form at takedownabuse.org because it is convenient, and because I agree with the sentiments that they espouse. But I would like to expand on other ways the DMCA can be improved. The takedown of content which is covered by fair use (and is thus protected expression) is a serious issue. However, it is not the only issue, and without this comment, I fear the other issues may not be addressed.

The first issue I would like to bring up is the way that the DMCA requirements actively discourage the sending of counter-notices, or “put-back” notices, in 512(g). There are two main issues.

First, there is a mandatory waiting time of ten days to put back content, specified in 512(g)(2)(C) (“not less than 10, nor more than 14, business days following receipt of the counter notice”). There is no parallel waiting time for taking down content, and there is absolutely no reason for the waiting time specified in 512(g)(2)(C). The DMCA should be amended to remove this waiting time.

Second, a counter-notice requires that the sender agree to be sued in the United States. This is specified in 512(g)(3)(D). Again, there is no parallel requirement for sending a takedown notice. A person claiming to be a copyright holder could send a takedown notice from (say) Russia, and they do not have to agree to be sued under U.S. law (or to be subject to any particular jurisdiction at all). The requirement for users to subject themselves to foreign jurisdiction will, and has, caused users to self-censor and not send counter-notices, even if the takedown notice is completely bogus.

Another issue is the requirement that service providers terminate the accounts of repeat infringers, specified in 512(i)(1)(A). This may be appropriate if the service provider is someone like YouTube or WordPress, where terminating a user’s account will simply stop them from using one particular service on the Internet.

But it is absolutely inappropriate if the service provider is an ISP, where terminating the account means cutting off access to the entire Internet. It is especially inappropriate where the accusations of infringement cannot be contested. Yet, this is the conclusion that a court recently reached in the BMG v. Cox case.

If you don’t already know, in that case, a company called Rightscorp (a “copyright troll”) sent thousands of notices to Cox Cable on behalf of their clients, including BMG. These were not DMCA takedown notices; in fact, courts have repeatedly ruled that DMCA takedown notices do not apply to ISP’s like Cox (see RIAA v. Verizon, In Re Charter Communications, or In Re Subpoena issued to Birch Communications).

Instead, these notices listed IP addresses, and included settlement demands, which Cox was instructed to relay to the users at those IP addresses. In other words, there was a direct financial incentive for Rightscorp to send out as many notices as possible, disregarding whether the user was actually infringing or not, knowing that most falsely accused users would pay a settlement rather than go to court to prove their innocence.

Because they were not DMCA notices, there was no way for any of those users to contest them – 512(g) only applies to DMCA takedown notices. Without convincing Righthaven to voluntarily “take back” the infringement claim (i.e. pay the settlement fee), innocent users would eventually be cut of from the Internet entirely.

In truth, I believe that the case was decided wrongly, using the plain language of the statute. However, to avoid ambiguity, the language of 512(i)(1)(A) should be clarified. This could happen in one of two ways. First, ISP’s in 512(a) and (b) could be explicitly exempt from this requirement. Or second, the language could be clarified so that only actual infringement, as found by a court of law, be considered when determining whether an ISP’s user is a repeat infringer. (This is how the law is technically worded now, and how 512(i)(1)(A) has historically been interpreted.)

I hope you seriously consider these problems, and hope you will adopt the solutions I proposed.

Thank you.

On a separate note: Yes, I know this site has been dead for a while now. I really have been extraordinarily busy. I’m trying to find a way to post more – perhaps by just posting links to things I find interesting, or by just writing shorter posts. (Obviously my “quality over quantity” approach is not working so well.)

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