{"id":3899,"date":"2016-08-24T12:30:28","date_gmt":"2016-08-24T16:30:28","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=3899"},"modified":"2026-04-09T18:17:34","modified_gmt":"2026-04-09T18:17:34","slug":"despite-what-you-hear-notice-and-takedown-is-failing-creators-and-copyright-owners","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2016\/08\/24\/despite-what-you-hear-notice-and-takedown-is-failing-creators-and-copyright-owners\/","title":{"rendered":"[Archived Post] Despite What You Hear, Notice and Takedown is Failing Creators and Copyright Owners"},"content":{"rendered":"

By Kevin Madigan<\/em><\/p>\n

In a recent op-ed<\/a> in the LA Times, Professors Chris Sprigman and Mark Lemley praise the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) as \u201ca bit of copyright law worth saving.\u201d They argue that Section 512<\/a> of the DMCA continues to serve its purpose of balancing the rights of copyright owners and creators with those of Internet service providers (ISPs), while leaving both sides only \u201cslightly disappointed.\u201d Satisfying these two groups is indeed a difficult charge, but it\u2019s simply disingenuous to suggest that creators and copyright owners are satisfied with a system so clearly in need of an overhaul.<\/p>\n

As the Copyright Office embarks on its review<\/a> of the DMCA, supporters and critics of the nearly twenty-year-old doctrine are weighing in on its effectiveness in addressing online infringement. Sprigman and Lemley claim that the \u201cprocess has worked well for years,\u201d and that the result of shifting more enforcement burden to ISPs \u201ccould be a broken Internet.\u201d But for those creators and copyright owners who have their works resurface online just minutes after they are taken down, the Internet is already \u201cbroken.\u201d The fact that piracy continues to intensify<\/a>, despite incredible efforts to have infringing content taken down, shows that notice and takedown is largely ineffective.<\/p>\n

As CPIP Senior Scholar Sean O\u2019Connor testified<\/a> before Congress, the notice and takedown system is not working for any of its intended beneficiaries. The constant game of whack-a-mole renders the system essentially futile for copyright owners and creators, and it creates significant burdens for ISPs that want to comply\u2014especially small to mid-level companies that can\u2019t afford compliance staff. Worse still, by shielding service providers from liability, the DMCA creates perverse incentives where there\u2019s little downside to ignoring infringing content. In fact, reviewing content could lead to an ISP having knowledge of infringement and losing its safe harbor.<\/p>\n

Now that the Copyright Office\u2019s review is underway, it\u2019s somewhat strange to see some supporters claim that all is well. But has anything actually changed since the Office announced its study? \u00a0Of course not. The whack-a-mole problem<\/a> remains, and the knowledge standards are still interpreted broadly to disproportionately favor<\/a> ISPs. When one side says the system is working and the other side says it\u2019s broken, the truth is that the system is not working well for everyone. Sprigman and Lemley can claim that the DMCA is \u201cworth saving\u201d only by downplaying the true plight of creators and copyright owners.<\/p>\n

A concrete example of this struggle comes from the comments<\/a> filed by Universal Music Group (UMG) as part of the Copyright Office\u2019s study. UMG describes the painstaking efforts devoted to protect just one artist\u2019s creative work. In October of 2014, UMG and Big Machine Records launched a joint offensive to protect Taylor Swift\u2019s \u201c1989.\u201d A staff of UMG employees dedicated 100% of their time and resources to manually search for infringements on YouTube, SoundCloud, and Tumblr, and through March of 2016, they had sent over 66,000 DMCA takedown notices. Despite their considerable efforts, over 500,000 links to the album were identified, and \u201c1989\u201d was illegally downloaded nearly 1.4 million times<\/em> from torrent sites.<\/p>\n

Of course, this type of effort would be impossible to replicate for any works other than those that attract such massive attention. For most artists, the burden of monitoring the Internet and sending takedown notices would fall entirely on their shoulders, with no guarantee of putting a stop to the theft of their works. Sprigman and Lemley ignore these problems, instead claiming that since copyright owners sent \u201cmore than 500 million takedown requests just to Google last year,\u201d we know that the \u201csystem is a powerful tool against pirated content.\u201d That would be great, if true, but the reality is that those notices barely made a dent.<\/p>\n

Sprigman and Lemley claim that the \u201cgenius of the DMCA\u201d is that it \u201cenables entertainment companies to turn piracy into legitimate revenue.\u201d They give the example of \u201cYouTube\u2019s Content ID system,\u201d which \u201cgives copyright owners the opportunity to \u2018claim\u2019 their work and share in any advertising revenue rather than pull it off the site.\u201d From the perspective of creators and copyright owners, the only \u201cgenius\u201d of this system is that YouTube can legally present them with an unfair choice\u2014suffer infringement and get nothing or monetize and get next to nothing.<\/p>\n

While Sprigman and Lemley praise the \u201cmore than $1 billion\u201d paid out by YouTube, the real question is how much more copyright owners and creators would have been paid in a properly functioning market. YouTube is consistently teeming with infringing videos\u2014one recent report<\/a> revealed that over 180 million infringing videos had been removed in 2014 alone. And the artists that YouTube\u2019s largess supposedly benefits are loudly complaining<\/a> about their exploitation. If Content ID is so great, why are so many creators and copyright owners upset with the arrangement? The monetization Google offers to copyright owners and artists is less than half of the royalties paid out by streaming services like Pandora, an amount that artists have denounced<\/a> as already inequitable.<\/p>\n

In her excellent piece<\/a> on the fictions of the Content ID system, Grammy-winning artist Maria Schneider exposes Content ID as a way for Google to cash in by actually legitimizing and perpetuating<\/em> piracy. She explains that a majority of creators that opt for monetization realize miserable percentages of ad revenue, and the continued illegal uploading of their music and content drives billions of users to YouTube\u2019s platform. YouTube has turned the weakness of the DMCA into a system that exploits artists while offering embarrassingly lower royalty rates than what would be negotiated in a free market.<\/p>\n

The current situation is untenable, and if change means \u201cbreaking\u201d the Internet, then we should pull out the pickaxes and get to work. A system of notice and staydown<\/em>, rather than just takedown, would help alleviate the constant and seemingly ineffectual vigilance required by the current system. By removing all copies of a protected work and blocking inevitable re-postings, ISPs would honor the original purpose of the DMCA while actually doing their part to earn the protection of the safe harbor provisions. Only by ensuring that targeted works do not resurface will ISPs respect the rights of those without whose content they would cease to exist.<\/p>\n

How anyone can honestly say that the current notice and takedown system is working for copyright owners and creators is mystifying given the constant calls for reform<\/a> from creators and the numerous critical comments filed with the Copyright Office. The incredible magnitude of takedown notices sent and the seemingly unstoppable reappearance of infringing works online are a clear signal that the system is completely failing those it was meant to protect. Creators and copyright owners deserve a better chance at protecting the fruits of their labors, and the DMCA needs to be changed so that it truly is a system \u201cworth saving.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":"

By Kevin Madigan In a recent op-ed in the LA Times, Professors Chris Sprigman and Mark Lemley praise the notice and takedown provisions of the Digital Millennium Copyright Act (DMCA) as \u201ca bit of copyright law worth saving.\u201d They argue that Section 512 of the DMCA continues to serve its purpose of balancing the rights […]<\/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":[10,11,12,23,27,29,45,1],"tags":[337,345,447,625,711,1028,1029,1295,1330,1500],"class_list":["post-3899","post","type-post","status-publish","format-standard","hentry","category-copyright","category-copyright-licensing","category-copyright-theory","category-infringement","category-intellectual-property-theory","category-internet","category-reasonable-royalty","category-uncategorized","tag-copyright-2","tag-copyright-infringement","tag-dmca","tag-google","tag-intellectual-property","tag-notice-and-takedown","tag-notice-and-staydown","tag-sean-oconnor","tag-section-512","tag-u-s-copyright-office"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/3899","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=3899"}],"version-history":[{"count":2,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/3899\/revisions"}],"predecessor-version":[{"id":16861,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/3899\/revisions\/16861"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=3899"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=3899"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=3899"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}