A new, digital dawn for notice and takedown under the copyright act
by J. Scott Evans
posted on 08-12-2020
Congress passed the Digital Millennium Copyright Act (DMCA) more than two decades ago. This was a time when people relied on dial-up modems and the internet itself was nascent technology. Yet, the DMCA was forward-looking legislation that envisioned a day much like today, where creatives share their latest work with millions around the world digitally and where their creative ideas need to be protected in the public domain.
Fast forward to today and this law is still central to how we protect the work of creatives on the internet. But the world has changed dramatically since then—an exponential growth in online platforms means there are now more ways to share content, as well as more ways for content to be shared without permission.
It should come as no surprise that Adobe has a unique point of view on copyright issues. Not only do we host content on Behance, but we also create tools for creatives to produce copyrightable works. We pride ourselves on providing content creators – ranging from students to emerging artists to global brands – with the tools they need to design and deliver exceptional digital experiences. Our technologies and platforms enable a vibrant ecosystem of creatives and an equally vibrant creative economy, which rely on a healthy copyright system to thrive.
We vigorously support the ability of creatives to protect their work through copyright and to realize economic value from their creative works. We support them in part by actively engaging policymakers as they work to make sure the DMCA works for creatives and the creative community.
It is with this lens that we took particular interest in the recent report from the United States Copyright Office regarding the effectiveness of one of the most important provisions of the DMCA, section 512. This part of the 1998 law established a system for copyright owners and online entities to address online infringement, including limitations on liability for compliant service providers to help foster the growth of internet-based services.
The purpose of section 512 was to create a mechanism for rights holders to address infringement outside of court action. To some, section 512 has fallen short. Yet, we believe that instead of deeming section 512 a failure, Congress and the U.S. Copyright Office should work on updating this statute to make it more effective in the digital age.
We see room for improvement in three areas:
- First, Congress can help by providing more guidance around the notion of a “repeat infringer.” Congress should revise the DMCA to make clear that an offender need not be adjudicated by a court as an infringer to be a repeat infringer under the DMCA. Companies would benefit from such guidance – and it should be made clear to companies that they can, and should, put common-sense policies in place to address repeat infringers. For example, when an effective DMCA notice is filed with Adobe against a user, the user will receive one strike against their account. If the user receives three strikes from the same or different copyright/IP holders within a one-year period, the user account will be terminated.
- Second, Congress can also help by offering more penalties against nefarious actors who make misrepresentations in either a takedown notice or in a counter-notice. Currently, senders of abusive takedown notices or false counter-notices are liable for damages if they knowingly make material misrepresentations. Unfortunately, the cost and effort involved in enforcing this provision of the DMCA renders it ineffective. For this reason, section 512(f) needs to be revised to include more realistic penalties for bad actors. One example might be allowing online sites to establish policies that include penalties like the loss of filing a DMCA notice (for content owners) or counter-notices (for alleged infringers) for a specified period of time.
- Third, we recommend that Congress ensure that any clarification of “red flag” knowledge in section 512(c) does not come into conflict with section 512(m) and impose a duty to monitor. Clearly, it is appropriate to place the burden on service providers to remove infringing content when they have actual knowledge. What is less clear under the statute is when service providers have “red flag” knowledge, or when a service provider is “aware of facts or circumstances from which infringing activity is apparent.” The Capitol Records v. Vimeo case has arguably shifted the burden of addressing infringement on content creators and made the red flag knowledge standard difficult to enforce. But we would be concerned if a well-intentioned effort to address red flag knowledge swings the pendulum too far in the opposite direction so as to effectively impose a duty to monitor, which would conflict with section 512(m).
These are three core areas that if addressed will go a long way in modernizing the DMCA. We’re passionate about these changes because we believe they can further ignite creativity among content creators and foster more competition in the new digital age.
At Adobe, we believe that everyone deserves respect and equal treatment, and we also stand with the Black community against hate, intolerance and racism. We will continue to support, elevate, and amplify diverse voices through our community of employees, creatives, customers and partners. We believe Adobe has a responsibility to drive change and ensure that every individual feels a sense of belonging and inclusion. We must stand up and speak out against racial inequality and injustice. Read more about the actions we’re taking to make lasting change inside and outside of our company.
We also know many people are still impacted by the current COVID-19 crisis and our thoughts are with you. The entire Adobe team wants to thank you, our customers, and all creators around the world for the work you do to keep us inspired during this difficult time.
Topics: Public Policy,