{"id":1177,"date":"2014-03-14T18:05:57","date_gmt":"2014-03-14T18:05:57","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=1177"},"modified":"2026-02-03T21:23:36","modified_gmt":"2026-02-03T21:23:36","slug":"taking-a-whack-at-the-dmca-the-problem-of-continuous-re-postings","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2014\/03\/14\/taking-a-whack-at-the-dmca-the-problem-of-continuous-re-postings\/","title":{"rendered":"[Archived Post] Taking a Whack at the DMCA: The Problem of Continuous Re-Posting"},"content":{"rendered":"

By Steven Tjoe<\/em><\/p>\n

On Thursday March 13, the House Judiciary Committee held a hearing<\/a> on the Digital Millennium Copyright Act\u2019s (DMCA) notice and takedown system.\u00a0 Among the witnesses testifying at the hearing was CPIP Fellow Professor Sean O\u2019Connor<\/a> (Washington University School of Law), who offered his insights<\/a> on Section 512 from his unique position as a law professor, former musician, and counsel to web businesses.\u00a0 Professor O\u2019Connor observed that while the notice and takedown system may have operated effectively in the late 90s, today it no longer works for any of its intended beneficiaries.<\/p>\n

Professor O\u2019Connor traced the shared problems faced by websites and creators today to an unfortunate and unintended consequence of Section 512: the incentive for web businesses not to monitor content<\/em>.\u00a0 According to Professor O\u2019Connor, this incentive has emboldened bad actors and fostered a culture of copyright contempt.\u00a0 Under current law, web businesses (including the small, start-up web businesses Professor O’Connor counsels) are generally given an odd piece of advice by their attorneys: \u201cdon\u2019t monitor the content on your site<\/i>.\u201d\u00a0 The rationale is that there are serious potential downsides to monitoring content, but no upsides.\u00a0 Monitoring content can expose web businesses to knowledge or awareness of infringement, and they risk losing their safe harbor under Section 512.\u00a0 The end result is that web businesses don\u2019t monitor (or even look), and as they turn a blind eye, bad actors are emboldened to upload and continuously re-post stolen works regardless of how many times they are taken down.<\/p>\n

Professor O\u2019Connor proposed two solutions to return some sanity to the process and encourage all parties involved to \u201cdo the right thing.\u201d\u00a0 His proposals target the most egregious cases: continuous re-posting of wholesale copies<\/i> of creators\u2019 works (not mash-ups, parodies, or excerpts, but infringing copies of the entire work<\/i>).\u00a0 Targeting these egregious cases makes sense given that the continuous re-posting of blatantly (really, inarguably) infringing wholesale copies accounts for the vast majority of takedown notices.<\/p>\n

First, Professor O\u2019Connor proposed a \u201cnotice and stay-down<\/i>\u201d system.\u00a0 In such a system, once a business receives a takedown notice for a given work, it would monitor for re-posted copies of the same work (which it has already been notified is infringing) and take them down without having to receive additional notices for that work.\u00a0 Ideally, web businesses should adopt voluntary best practices to monitor and immediately remove re-posted works.\u00a0 Absent a voluntary adoption, Professor O\u2019Connor believes that Congress should consider amending the DMCA to add an affirmative duty to monitor and remove re-posted infringing works.<\/p>\n

This solution reflects the technological advances that have become a reality since the DMCA was passed in 1998.\u00a0 Automated systems like the YouTube Content ID System (YouTube is owned by Google) can now effectively identify copyrighted works.\u00a0 Adapting such technologies to identify works that have already been taken down under Section 512 and adding those works to a filter catalog would be one way to automate a notice and stay-down system to deter repeat offenders.\u00a0 This would not only alleviate the cost (on both sides) of repeated takedowns for the same re-posted works, but would also systematically curb instances of blatant, wholesale copyright infringement.<\/p>\n

Second, Professor O\u2019Connor proposed revisiting and strengthening the DMCA\u2019s red flag provisions by codifying a stronger version of the \u201cwillful blindness\u201d doctrine that courts have narrowly interpreted.\u00a0 Some courts have failed to find willful blindness even in cases involving very high volumes of infringing activity on a website.\u00a0 In his written testimony, Professor O\u2019Connor notes that \u201c[t]he \u2018don\u2019t monitor\u2019 advice and glamorization of a piracy culture means that many websites are in fact turning a blind eye to extensive infringement on their sites.\u201d\u00a0 By defining willful blindness to discourage today\u2019s common \u201cdo not look\u201d policy, we could combat the culture of copyright contempt that emboldens bad actors and repeat infringers.<\/p>\n

Testimony by some of the other witnesses at the hearing corroborated the significant problems with the current notice and takedown system.\u00a0 Paul F. Doda<\/a>, Global Litigation Counsel for Elsevier (a premier publishing company), noted that despite rigorously issuing takedown notices, Elsevier encounters a growing number of copyright infringements each year.\u00a0 The same literary works that are taken down are repeatedly re-uploaded on the same sites hundreds of times after being taken down<\/i>.<\/p>\n

From a more general standpoint, the sheer volume of takedown notices each year is staggering.\u00a0 Katherine Oyama<\/a>, Senior Copyright Policy Counsel at Google, testified that Google received 230 million takedown notices in 2013 alone (acting on 99% of those).\u00a0 As instances of infringement continue to increase, the expense of locating, identifying, and then sending (or acting on) separate takedown notices for each infringing file has become increasingly significant and prohibitive, especially for creative up-starts and smaller web businesses.<\/p>\n

From an artist\u2019s standpoint, Maria Schneider<\/a> (three-time GRAMMY-winning composer, conductor, and producer of jazz and classical music) testified to the real-world harm artists suffer despite the current \u201csolutions\u201d offered by Section 512.\u00a0 Ms. Schneider described her experience with the notice and takedown system as an \u201cendless whack-a-mole game\u201d where, immediately after being taken down, her work reappears on the same sites<\/i> she sent takedown notices to, offering her no relief from constant infringement.\u00a0 She observed that independent artists are \u201chemorrhaging red ink\u201d on their intellectual property.\u00a0 Worse yet, policing the constant re-posting of stolen copies of their work is incredibly time-consuming and defers the ability of independent artists to focus on artistic endeavors, an effect Ms. Schneider fears will prove disastrous to young, aspiring artists and the future of the industry.<\/p>\n

Simply put, it is time to update the notice and takedown system to reflect the realities of our digital age.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Steven Tjoe On Thursday March 13, the House Judiciary Committee held a hearing on the Digital Millennium Copyright Act\u2019s (DMCA) notice and takedown system.\u00a0 Among the witnesses testifying at the hearing was CPIP Fellow Professor Sean O\u2019Connor (Washington University School of Law), who offered his insights on Section 512 from his unique position as […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[7,10,11,12,21,29,34,1],"tags":[],"class_list":["post-1177","post","type-post","status-publish","format-standard","hentry","category-commercialization","category-copyright","category-copyright-licensing","category-copyright-theory","category-high-tech-industry","category-internet","category-legislation","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/1177","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=1177"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/1177\/revisions"}],"predecessor-version":[{"id":15932,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/1177\/revisions\/15932"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=1177"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=1177"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=1177"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}