In order to understand the Digital Millennium Copyright Act, we need to explore a little history. In 1996, the World Intellectual Property Organization (WIPO) (which is an agency of the UN) met to create several treaties concerning copyright law and intellectual property. In 1998, those treaties were presented to Congress, which created the legislation called the Digital Millennium Copyright Act (DMCA) to satisfy two of those treaties. It was signed by President Clinton and went into effect in 2000.
The laws contained many detailed provisions, but here are some main points. It set rules to stop people from avoiding technological protection and copyright. It set limits on how liable online service providers were held for copyright infringement posted by a user. It confirmed the first sale doctrine, which states that the owner of a copy of a work has the right to dispose of that copy. It updated archival laws, so that the owner of a copy of a work had the right to make another copy purely for archival purposes. It also mandated further studies on the effects of the mandates and electronic commerce.
The DMCA was an important step in copyright law, as it essentially transitioned it into the Digital Age. It was intended to balance the promotion of electronic commerce and piracy prevention laws aiding copyright owners with existing limits on the exclusive rights of copyright holders.
The DMCA laws had to meet the requirements laid out by the WIPO. The standards of the DMCA are determined by the government, as it is law. It is a collaboration between the U.S. Copyright Office and the Department of Commerce. There was also input from the Librarian of Congress prior to passing the law, who created rules for exceptions to copyright law under fair use standards. However, the DMCA places much responsibility on service providers to adhere to DMCA takedown notices, or else they will be held legally responsible for the violating content.
There is much controversy surrounding the DMCA, even to this day. From the start, many people felt that it leaned too far in favor of copyright holders, therefore limiting innovation and fair use.
Many companies that search for violation of their copyright use robots to scan websites. These are extremely flawed; they often scan file names and metadata, rather than the content of the actual site. Therefore, they issue DMCA takedown notices for websites that actually do not violate copyright at all. For example, last August, Total Wipes Music Group sent Google about 15,000 takedown requests. It was discovered that many of the pages it targeted were based on the robot’s search for the word “coffee.” Total Wipes later said that this was caused by a bug in the system, but regardless, this just exhibits the flawed nature of the systems being used to detect copyright infringement.
In fact, in the last month alone, Google received over 32 million takedown requests. For service providers, it’s safer to comply with DMCA regulations and remove the content, rather than risk being held responsible for copyright violation. Many protestors cite a huge lack in human oversight on these notices. Instead, DMCA notices are based on the “good faith belief” that the content truly violates copyright. In reality, many of the URLs targeted actually have nothing to do with the content they’re said to infringe upon.
This lack of oversight also takes on a more malicious turn in a recent court case involving WordPress. Earlier this month, Automattic (the company that owns WordPress.com) and their journalist Oliver Hotham won a two-year court case involving censorship through the DMCA.
Two years ago, Hotham conducted an interview with a press officer from an anti-gay rights group called Straight Pride UK. In his blog post about the interview, which was posted on WordPress, Hotham included quotes from a response sent to him by Straight Pride UK in a document titled “Press Release.” Straight Pride UK got a lot of backlash from Hotham’s blog post, so in response, they claimed that his post violated the copyright of the press release, and threatened to send a DMCA takedown notice. Hotham took the post down voluntarily, but he and Automattic investigated DMCA laws and eventually took Straight Pride UK to court for sending a DMCA notice when they knew that it did not actually violate any copyright protections. Automattic won the court case, and was granted $1,000 in damages.
As for the future of the DMCA, it will continue to be crucial to copyright protection online. However, it needs to undergo some reforms in order to be more effective. Some of these reforms should come from within, and some from without. The original goal of the DMCA was to evolve along with digital technology, and it has fallen behind. It needs to recognize more instances of fair use than it addresses in its original form. It should also create standards for valid issuing of DMCA notices, so that original online content cannot be targeted, either accidentally or with malicious censorship.
There should also be reforms from the outside, particularly in regards to service providers. Google provides a Transparency Report that is open to the public. This is how Total Wipes’ abuse of DMCA notices was discovered. Third party users read the report and noticed the abuses. I think that more service providers will follow in Google’s footsteps and make that content open to the public. I also hope that the skyrocketing instances of bogus DMCA charges will alert service providers that they need to include more human oversight of DMCA takedown requests in order to ensure they’re all valid.