More Signs the DMCA Isn’t Enough for Anyone

By Zosha Millman | LXBN | June 21, 2016

A number of musicians signed on a letter to overhaul the DMCA and change the way Youtube shares their music. Get in line.

While their complaints lie more with Google and its popular video streaming site Youtube, these artists are far from the first people to claim that the DMCA is due for an update. They’re also not typically the people most affected by it.

The content of the industry members’ open letter isn’t new ground; essentially they’re once again asking for government regulators to amend sections of the Digital Millennium Copyright Act (DMCA). The 1998 law has long governed the way internet sites police their sites for copyright violations and liability, but most agree it’s not really working anymore. But it’s stayed in place because—for whatever gray areas it has—no one’s clear on what a better system.

“You get a room with ten experienced copyright lawyers, and you’re rarely going to have all ten lawyers agree on whether something is fair use or not,” said Travis Crabtree, author of the eMedia Law Insider, in an interview with LXBN earlier this year. “Tons of cases say there’s no bright line test for fair use…It’s difficult—if not impossible—to impose that burden on websites.”

While the ideal system would involve minimal effort on all sides, so far there’s no solution that makes everybody happy. They just all agree the DMCA makes all sides unhappy: Artists claim its takedown process is too complicated compared to the ease of re-uploading, small businesses and individual users are vulnerable to lawsuits, takedowns, and undue censorship, and websites are trying to placate both sides without any liability.

“This really is a huge gray area, and it very complicated to develop a system that allows for everyone to succeed,” said Crabtree. “You don’t want a copyright holder to have to file a lawsuit and take expensive steps every time there’s a violation. You don’t want a site like Youtube dragged into legal disputes for every little thing.” 

Photo Credit: StockMonkeys.com cc

Of course, it’s not like many music artists or labels are typically getting bogged down in the nitty-gritty. That’s reserved for the layperson, whose videos of Buffy vs. Edward or a 29 second video of their baby dancing to Prince gets flagged and taken down for violating the DMCA before you could say “fair use.” DMCA notices got so rampant that the Ninth Circuit reined the power in a little last year, and Youtube started offering legal support for users facing a costly battle to get their videos deemed fair use.

And Youtube isn’t the only place where this is getting abused. Web hosts have been forced to develop a hair-trigger over DMCA claims, meaning guilt is assumed and the easiest way to get something off the internet is to claim a copyright violation. The amount of labor going into a counterclaim means even the downside of a false claim is negligible. Which is how companies sometimes get rid of bad reviews, as The Guardian writes about Annabelle Narey’s forum feedback of a building firm on Mumsnet:

Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.

As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.

In fact, no copyright infringement had occurred at all. Instead, something weirder had happened. At some point after Narey posted her comments on Mumsnet, someone had copied the entire text of one of her posts and pasted it, verbatim, to a spammy blog titled “Home Improvement Tips and Tricks”. The post, headlined “Buildteam interior designers” was backdated to September 14 2015, three months before Narey had written it, and was signed by a “Douglas Bush” of South Bend, Indiana. The website was registered to someone quite different, though: Muhammed Ashraf, from Faisalabad, Pakistan.

Though the building company claims no responsibility for this fishy behavior, it’s just the tip of the iceberg for small sites and users who can’t afford to defend themselves against shady notices. The DMCA is so powerful that when “Family Guy” ripped off an online video it got the original online video taken down. In the past two years DMCA takedown requests fielded by Google has quadrupled.

So what are these artists and labels hoping will come out of this? Congressional action, sure. So is everyone else. According to Re/Code, the music industry isn’t doing this purely out of the goodness of their heart, or their concern for the average user:

If that’s the case, and if YouTube doesn’t give music makers the concessions they want, then the music labels will take their music away from YouTube, [letter organizer, manager Irving] Azoff predicts.

“If you [are] one of the big labels, and you continue to do business with YouTube the way you currently have, that’s a bad sign for all the people that signed that letter,” Azoff said. “I would be shocked, after supporting all these artists in a letter to Congress, [if] these big labels would turn around and make voluntary extensions to YouTube.”

Many reasonable people, including ones at the top of YouTube’s org chart, believe that the music industry’s campaign against the DMCA is simply a public negotiation over new licensing terms.

If that is the case, then Youtube might have a hard time squaring off against the artists. They are being lead by Taylor Swift who publicly discusses keeping her new music off streaming sites, and made Apple Music respond accordingly. If she takes up arms against Youtube (which Re/Code notes has been a popular outlet for her in the past) it could affect how the site chooses to enforce DMCA and stand up for the fair use guy.

Then again, if all parties agree that the DMCA is no longer working properly—and some worry even encouraging piracy—maybe the internet isn’t the part that needs the update.

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