© is the copyright symbol in a copyright notice

© is the copyright symbol in a copyright notice (Photo credit: Wikipedia)

The Takedown provision of the Digital Millennium Copyright Protection Act (DMCA) was created with the best of intentions, we’d like to think. The idea was to provide a mechanism by which copyrighted materials that appeared without permission on the internet could be easily removed. As today’s hearing before the House Subcommittee on IP made clear, it hasn’t exactly worked out that way.

It is especially appropriate that this hearing is taking place during SXSW when so much attention is on content producers of all types, from musicians to social media entrepreneurs. The vitality of the Austin scene during these few weeks  only highlights the need for the protection of intellectual property. The weakness of the DMCA takedown process is one of the things posing a threat to the continued growth and expansion of creativity.

A good place to start is the rather extraordinary statement made by Google in its statement today:

“The increasing volume of takedown notices demonstrates the continued relevance and effectiveness of the DMCA’s notice-and-takedown regime. Copyright owners are using the process ever more intensively, suggesting that they continue to find it valuable.”

The Copyright Alliance’s continuous contacts with content producers, both large and small, suggests that the reason for the increasing volume of takedown notices is actually far different. It doesn’t work. Either Google doesn’t take down the offending content without continuous badgering and/or the material goes up again often within hours of its being removed.

Copyright Alliance CEO Sandra Aistars makes some excellent points in a statement for today’s hearing: When authors are forced to send upwards of 20 million notices a month to a single company— often concerning the same works and the same infringers—something is amiss. The company, by the way, is Google.

Aistars writes that the cost of policing the internet for copyright violations filing DMCA takedown notices is a major and largely ineffective task for major media companies. She cites academic Bruce Boyden who has likened the task to “emptying out an oil tanker with a thimble.” And that’s from the perspective of major media companies. The burden on independent artists, writers and musicians is far heavier. It’s hard to stay afloat when so much time and energy is being directed toward protecting what’s yours. In Aistars’ words:

The situation is even worse for individual authors and artists. Any time spent fighting infringement of their works takes away from the time they would spend on creating new works for the public to enjoy, and the money needed to enforce must come out of their personal income or savings.

Then there are the organizations like the Electronic Frontier Foundation that attempt to bully and intimidate content producers who are merely attempting to stand up for their rights. Aistars gives provides an excellent example:

The site Chillingeffects.org, for example, bills itself as a “clearinghouse” for DMCA notices. It publishes notices forwarded to the site by recipients such as Google, leaving intact information that directs readers to the infringing URLs. Until recently the site also publicized the names and personal information of any artist sending a notice to seek the removal of an infringing URL.

At the very least organizations that support copyright infringement paint copyright defenders as either “fat cats” not deserving of protection or “party-poopers” who want to put an end to everyone’s good time. Google for its part argues that the technology needed to truly put an end to copyright infringement is too difficult to develop and implement. Both are interesting arguments coming from a company that is developing driverless cars and coming up with solutions to seemingly intractable problems like oil dependence.

The argument is quite simple. If we want the party to continue we have to provide a way for those who are providing the music, movies and books to continue providing the entertainment. Otherwise, the lights, in Austin and elsewhere, are going to go out pretty quickly.


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