With friends like the DMCA, who needs SOPA?

The proposed Stop Online Piracy Act, or SOPA, garners a lot of hatred from commentators and the Internet industry as whole, but it’s only the next logical step after the already-flawed Digital Millenium Copyright Act. Many discussions reference the DMCA’s “safe harbor” provision when talking about the removal of infringing content on sites like YouTube, but the provision doesn’t really provide safety at all. It might more fairly be called the “plea bargain” provision: you do less time and save on attorney fees, but you’re no less guilty.
The DMCA has been governing copyright on the web since 1998 but it has largely avoided the level of outrage the SOPA has raised, despite the DMCA’s process — or lack thereof — for getting content removed. Essentially, someone writes a letter that complies with the law’s requirements, and the service provider has to either remove that content (for a minimum of 10 to 14 days depending on whether the alleged infringer challenges the claim) or face a potential copyright lawsuit.
This doesn’t mesh with traditional avenues for resolving legal issues. Just because we’re talking about removing content and not putting people in jail, we shouldn’t offload the legal process to parties with every incentive to take the prudent route lest risk facing legal action themselves.

Google isn’t a court

Service providers aren’t federal judges, the entities traditionally charged with deciding what’s infringing and what’s not. In a recent blog post explaining the security ramifications of SOPA (which I also covered), CloudFlare Founder and CEO (and law professor) Matthew Prince laid out the challenges of having service providers decide what’s infringing and what’s not, especially as bogus claims start getting better:

Imagine the challenge for someone on CloudFlare’s support team. If someone writes to us alleging that they are a photographer who took a picture that appears on a website, or a designer who drew a logo, or an author who wrote some text, how can that claim be verified? I’m an attorney and member of the bar. I teach a course on intellectual property and technology law at the John Marshall Law School. I serve on the Board of the Center for Information Technology and Privacy Law. I’ve reviewed many of these requests and, even with my training in the subject, I have no idea how to effectively and efficiently tell the difference between valid and invalid complaints. (emphasis added)

Talk about a Catch-22: If service providers don’t comply, they risk lawsuits. If they comply willy-nilly, they look like rubber stamps, even for a growing number of wholly illegitimate claims. Consumers can either give in to takedown requests, or challenge them and perhaps find themselves embroiled in a costly legal proceeding over content the value of which probably doesn’t justify the potential costs.

False claims are everywhere

This wouldn’t be such a problem if it weren’t the case that an increasing number of DMCA takedown requests are bogus. These come from hackers wanting to know host domain names, individuals or companies with vested interested in seeing content removed, or just serial DMCA flamers (as explained in the YouTube video below).
In 2006, two law professors published a report highlighting the scope of the problem at that time. Although they acknowledged the imperfection of their data set, the results are were pretty startling nonetheless: 41 percent of all studied claims involving content hosted on Google (s goog) targeted complainants’ competitors, and “a substantial portion” of the claims contained serious legal flaws ranging from the veracity of the claim to non-compliance with DMCA requirements to not even making copyright-based claims.
In 2009, Google noted when challenging a proposed New Zealand copyright law that 57 percent of its takedown requests were from businesses targeting their competitors, while 37 percent weren’t valid copyright claims at all.
Presumably, though, because service providers — even the mighty Google — aren’t really in the position to examine every claim, and even if they spot potential defenses (e.g., fair use), there isn’t much incentive to ignore requests. This creates even deeper problems for copyright law. Commenting in 2006 on whether it’s legal to link to allegedly infringing material, EFF attorney Fred von Lohmann noted, “That’s one of the problems with the DMCA safe harbors — because OSPs have such a strong incentive to simply comply with takedown notices, courts get fewer chances to decide the underlying copyright questions, like whether linking to stuff on YouTube is infringing. So things stay murky. ”
The problems inherent in removing any legal entity from the notice-and-takedown process extend to the methods by which copyright holders go after the alleged infringers themselves. A 2008 study showed that industry organizations such as the RIAA and MPAA often incorrectly targeted individuals based on faulty methodology, and that methods exist for framing other individuals by altering the displayed IP address.

Why DMCA survives and how to fix it

It’s difficult to ascertain why the DMCA doesn’t get the same attention as the proposed SOPA legislation does, but perhaps it’s because the DMCA has been in effect since 2008 1998 — before Google and other web-based companies were the behemoths they are today. They came into their own with the DMCA in place, and they learned to live with it.
Or, perhaps the DMCA is spared the lobbying efforts of large web properties because it doesn’t threaten them like SOPA does. The DMCA lets sites remain operating if they remove infringing content, whereas SOPA could shut them down if pirated material is present. In fact, in their letter expressing concern over SOPA, a consortium of service providers including Google, Twitter and Yahoo (s yhoo) refer to the DMCA as an “effective mechanism,” despite the burdens it puts upon them.
Whatever the reason, though, the underlying problems with both laws stem from their lack of due process. When Google challenged that New Zealand law in 2009, it made a particularly sane suggestion for how to handle takedown requests: refer them to an independent judge who would evaluate the merits of each case and acknowledge the presence of any possible defenses. In the United States, perhaps that could be a job of the Copyright Office, which would serve as the middle man between infringement claims and service providers.
While we’re righteously outraged about SOPA, it seems a good time to rethink DMCA too, even if doing means sending copyright holders into an absolute frenzy. Criminal laws would never outsource arrests to third parties who face legal action if they didn’t arrest an alleged criminal, but that’s analogous to what the DMCA already does for copyright law. SOPA goes a step further, but it’s hardly a leap.
Image courtesy of Flickr user H.L.I.T.