Copyright law — specifically, the 1998 addition known as the Digital Millennium Copyright Act — is everywhere. It’s applied to everything, because everything is software-driven, and it’s frankly starting to get more than a little awkward. That’s okay; laws age. So it’s time for an update, right? Except naturally, some of the changes being mulled over right now could be terrible for everyone who isn’t a giant corporation, because of course.
Here’s what’s going on: The Copyright Office is untertaking a review of the DMCA to figure out what is and isn’t working. One big aspect of that is the “notice and takedown” aspect of the law: when a site receives notice from a copyright holder that they’re hosting infringing content, they’re legally immune from being an infringing party if they pull it down. We see examples of this gone amok fairly regularly, but it’s the way the internet world works right now.
But notice and takedown is prone to abuse. On the one hand, it doesn’t stop media pirates from willfully uploading content they don’t own again, or to other platforms. And on the other hand, it’s an incredibly powerful tool that lets basically anyone request to have basically any content removed wholesale from the internet at any time, potentially without appeal.
“We see this every day at the Internet Archive when we get overbroad DMCA takedown notices, claiming material that is in the public domain, is fair use, or is critical of the content owner,” the Archive’s blog post says. “More often than not, these bad notices are just mistakes, but sometimes notices are sent intentionally to silence speech. Since this tool can be so easily abused, it is one that should be approached with extreme caution.”
However, the proposal now before the Copyright Office is something even more stringent. It’s called “Notice and Staydown,” and would have the effect that it sounds like: not only would the site receiving the notice have to take the content down, but they would have to assure that the work never appears on the platform ever again — from any user, in any form.
The Archive runs through a list of reasons why this is a huge problem. For one, there are no user protections. If something in the public domain gets captured by one of those “staydown” requests, everyone else on the internet would have to be proactively prohibited from uploading it to the site that got the request. And the new proposal has no provision to let falsely-accused users make counterclaims.
The rule would also require internet sites to heavily and proactively monitor all user activity. If one particular 30-second video clip has to “staydown,” that means that, say, Facebook or YouTube — two huge video hosting sites — would have to proactively screen every video uploaded by every user to make sure that it wasn’t that same 30-second clip.
As there are hundreds of millions of minutes of video uploaded to the internet every day — to say nothing about still images — that also puts a heavy burden on sites themselves, the Archive points out. Filtering just doesn’t really work that well. Even Facebook, probably the world leader in this sort of thing, is only just now getting into any sort of automatic video filtering and tagging.
“The DMCA has its problems, but Notice and Staydown would be an absolute disaster,” the Archive post concludes. “Unfortunately, members of the general public were not invited to the Copyright Office proceedings last week. The many thousands of comments submitted by Internet users on this subject were not considered valuable input; rather, one panelist characterized them as a ‘DDoS attack’ on the Copyright Office website, showing how little the people who are seeking to regulate the web actually understand it.”