Digital Millennium Copyright Act, DMCA, is a copyright in the United States of America. This particular law implements two treaties founded in the year 1996 by the World Intellectual Property Organization, WIPO (Urban & Quilter, 2005). The primary purpose of this DMCA law is to protect and enhance creativity and innovation among people. This law makes it criminal to produce and disseminate technology, devices or even services that are meant to contravene the measures regulating the access to copyrighted works. Furthermore, DMCA illegalizes the practice of circumventing an access control, regardless of presence or absence of the copyright itself. The greatest interest of this paper is on the provision of this DMCA law about the copyright infringement on the internet. This law has stayed in its current form for a very long time yet the industry of technology, which it controls, is ever changing at a quite high rate. Consequently, the DMCA law has increasingly become obsolete failing to address the emerging concerns and remaining open to abuse by the business corporations. It is submitted in this paper that for effectiveness copyright management, the Digital Millennium Copyright Act should be amended by restricting copyright holders from, “shoot first, think later”, requesting a broad take down to censor any speech they may not like online without investigating legitimacy.
Main body
The problem
It is important to submit that the main purpose of DMCA is protection of the content owners like companies on their websites and online service providers such as You Tube from copyright infringement and permit a safe-harbor for them. One effect of DMCA implementation is that the online service providers are not held liable for storing infringing content. However, this protection is granted to the online providers as long as they act promptly to eliminate or disable access to the infringing material, which is identified in a formal procedure. This formal and stern procedure is meant to investigate ensure legitimacy of the take-down. Therefore, a company is allowed to take-down content that it feels amounts to infringing material. It is this provision that many corporations have chosen to abuse and resort to limiting the rights of users to free speech online (Cobia, 2008). Companies now censor any content such as reviews as they feel it is criticism, only leaving the positive comments of users. The emerging development is that corporations now request a broad take-down to censor any speech, which they do not like online even without investigating legitimacy.
Delegate your assignment to our experts and they will do the rest.
The spirit and intent of the DMCA is quite positive. However, businesses have become abusive to this particular by choosing to silence negative reviews on their websites without following the due procedure. Since they are protected by the DMCA, this utter and overt infringement on people’s right to free speech appears legal and legitimate when it is actually really illegal and in contravention of the fundamental tenets of the Bill of Rights, which provide for free expression.
It is vital to observe the fact that copyright laws in the United States of America give exceptions to protect a person’s freedom to expression online. For instance, the fair-use exception categorically permits use of copyrighted products even without the node of the right-holder. However, this exception is only for the purpose of commentary and criticism. Therefore, if the DMCA provisions are followed in their letter and spirit, there is no way copyright infringement can legally be used to gag negative criticism.
There is a clear process to be followed before take-down of negative reviews from a corporate website is done. This process is clearly laid down in the DMCA law. According to the DMCA law, the complainant in a copyright infringement notice must show good faith in his or her belief that the use of the material, which is subject of the complaint, is in the manner not authorized by the copyright owner, law or its agent. The implication of this statute is that businesses are not supposed to consciously send baseless requests for take-down claiming infringement. The law, as it is now, expects that such requests be based on some level of legitimacy (Landau, 2001). This legitimacy must be investigated and established. However, most corporations have identified some loopholes in the DMCA and continue to capitalize on these weaknesses. There are many issues in the field of online service copyright infringement to which the DMCA law is silent. It gives the companies windows to continue sending baseless take-down requests and censoring of free speech as long as it is criticism or unlikeable to a business. It is important to note that the same law provides for penalties to parties that knowingly misrepresent a material or content as infringing. Such a party must be liable for payment of damages including the attorney’s fees incurred by the accused.
Despite the presence of the penalties in the statutes of the DMCA law, many companies do not seem to be deterred from engaging in abuse of the legal provisions. Most of the reasons for take-down and censorship decisions by corporate companies are based on malice. Corporations, nowadays, are always desperate to ensure negative reviews are removed at any cost.
Ways in which abuse of DMCA is done by corporations
There are numerous ways in which corporations abuse the DMCA law in order to remove the negative reviews. One of these methods used is the claim of copyright infringement for words in which the name of the company or product being reviewed is mentioned. In this case, trademark claims are used disguised as copyright through the DMCA (Jennings, 2015). For instance, there was an incident where GoPro made a DMCA take-down notice to DigitalRev based on the claim that the latter had included the word ‘GoPro’ and ‘Hero’ in its review comment. This review by DigitalRev was a comparison between the Hero 3 camera of GoPro and the HDR-AS15 belonging to Sony Company. The complaint letter wrote by GoPro mentioned that it had good faith belief about DigitalRev’s infringement on its trademark rights through the use of the name of the company and product in its review.
Analysis of this complaint by GoPro, shows lack of legal substance in the claims against DigitalRev. It must be noted that using the name of a product or company to review itself does not infringe on any copyright law in any manner whatsoever. Such an act fitly falls within the framework of fair-use exception for purposes of commentary and criticism as provided by the DMCA. The second issue in this case is that the DMCA law only applies to the copyrights, but not trademarks. Moreover, in any case, no trademark right is executable just for using a company’s name or product in a review or criticism.
It is memorable that GoPro’s attempt to take down a positive review by DigitalRev maliciously boomeranged on it when it led to bad publicity in the mainstream press. The press trolled this company for trying dubious tactics in a bid to trick the provisions of the DMCA law. This company had to later on issue a response statement in a frantic effort to heal the situation. Despite this much publicized abuse of the DMCA law, companies have never stopped to engage in attempts of misusing it.
There was also the case of Rotolight, which is a photography company that applied the same trick to producer Den Lennie. Den Lennie had done a review comparing the Rotolight Anova to Kino Flo Caleb, its competing product. In this specific review, Lennie concluded that Rotolight Anova was an inferior product when compared to its rival, Kino Flo Caleb. Rotolight was not amused by this negative review on its part and it decided to request for a DMCA take-down notice to Vimeo. The claim in this case was that the title and tags for the video infringed on the company’s trademark. Vimeo did take-down this particular product comparison video at a time when it had only garnered 150 views. Later on, Lennie posted a blog on the internet revealing the DMCA filed by Rotolight, which made Vimeo to take-down his review video. This blog-post went viral across the corporate field with Rotolight being ashamed and trolled for abusing the DMCA law. Rotolight was forced by the situation to quickly issue an apology for its baseless claims of copyright infringement by the video content.
In both of this cases, DigitalRev and Lennie were sensitive enough to realize the ways companies use to abuse the DMCA law. They both established the problem with the current DMCA law. They realized that the DMCA threats directed at them were based on malice disguised as infringement of the legal provisions. Consequently, they were candid enough to react and support their reviews hence convincing the public and forcing their adversaries to backtrack and apologize.
The Digital Millennium Copyright Act should be amended
Considering the cases mentioned in this paper, there is an urgent need of amending the DMCA law so that it corrects the loopholes it contains, which many corporations are ever using to block expressions of criticism and reviews (Review, 2015). The main focus in the process of reforming DMCA law should be directed at the notice-and-takedown procedure, which has become ineffective. The provision on the take-down notice procedure is the main source of loopholes in this law. Successful sealing of loopholes in this law requires that reforms be implemented in the provision for take-down notice procedure. It is important to note that the notice-and-takedown procedure as currently expressed places a lot of important content in risk. It means that even the political speeches of people can be censored during campaigns. Even videos may be taken offline at times when they are crucially needed. It is this notice-and-takedown process that is often abused by corporations when they want to censor speech or commentary, which is not likeable to them.
One wonders what happens with the people who are not aware of their rights as contained in the DMCA law. It is important to observe that small interested parties may be afraid of engaging big corporations through filing of takedown counter-notices. Many of them are forced to just takedown their reviews even when they just on the right side of the law and expressing their free views. There are websites such as You Tube that have automatic tools that take down videos upon a DMCA request. On such websites, it is only incumbent on the aggrieved users to file a takedown counter-notice for the videos to be reinstated. However, many people do not even know they can file a counter-notice on takedown action (Review, 2015). Most of them simply leave it at that when their videos or other forms of genuine online content are taken down.
Notably, the policy of ‘takedown unless contested’ contained in the DMCA was included in the law based on the contemplation that companies would act with high sense of integrity and good faith, only sending requests when their copyrights have been truly and factually infringed on by another party. However, what this clause in the DMCA law contemplated is not the real thing happening today. Corporations are acting without basing their actions on integrity and good faith. It, therefore, means the law has to be changed so that it deals with the reality in practice. The law has to now address itself on the situation where the companies act without integrity and good faith in requesting for DMCA content takedown notice.
A study of the past takedown notices, done recently, established that 29% of all the requests made did raise concern over their validity. Moreover, 8% of the targeted content had a potential of fair-use defense (Review, 2016). It is certainly clear that many of the DMCA abuses by corporations have been successful in taking down content. A lot of the people targeted do not have the time, money or even the public platform to fight back (Review, 2015). Whereas the Electronic Frontier Foundation (EFF) has been helpful in helping the small bloggers and firms file counter-takedown notices through provision of legal assistance, this organization does not have the capacity to reach out to all those who are affected by fraudulent takedown notices from corporations (Review, 2016). It is the reason reforms to the current DMCA should be done.
Recommendations on necessary amendments
To achieve an effectively functioning DMCA law in the modern days of high averseness to negative commentary and criticism by corporations, it is important that specific clauses in the law be amended with the categorical aim of restricting copyright holders from, “shoot first, think later”, requesting a broad take down to censor any speech they may not like online without investigating legitimacy (Jackson, 2000). As currently constituted, the DMCA law does not offer the respondents with the recourse against a takedown notice, before material is taken down by ISPs and OSPs. For one to start pursuing the available recourses, the material in contention must have been taken down by the ISPs and OSPs. The operation of this law is that there is automation of the takedown process that happens upon filing of the notice. This situation is quite unfair and must be corrected (Jackson, 2000). The amendment to the DMCA law must provide respondents with recourse against a takedown notice before any material alleged to be infringing a given copyright is practically taken down by ISPs and OSPs.
Another point of amendment is in the fact that currently, a copyright holder becomes a prosecuting judge just through the DMCA takedown notice. What a copyright holder just needs is to serve the takedown notice on an ISP or OSP. It is then the ISP or OSP that automatically takes down material of the third party from the internet upon receipt of this request (Jackson, 2000). This practice must be changed to allow for response from the third before decision to takedown material or content is made. Therefore, this instant takedown of content must be banned by the new amendment to the DMCA law.
It is important to note that the rules and procedure of the takedown process are enshrined in section 512 of the DMCA law. In this section, ISPs and OSPs are accorded immunity from prosecution by both the copyright holder and respondent to takedown notices as long as they stick to the laid down procedure. It is this ‘safe harbor’ provision that normally gives ISPs and OSPs an incentive of cooperating with the copyright holders, who are majorly the big corporations. In most cases, ISPs and OSPs are biased against the respondents who are normally the small bloggers and firms. There is need of eliminating this ‘safe harbor’ provision to ensure that even the ISPs and OSPs do not enjoy the incentives of committing illegalities (Jackson, 2000). The new amendment must provide for prosecution of the ISPs and OSPs in the event they are found to be culpable for committing actions, which are based on malice advanced by the copyright holders. This amendment should put in place measures aimed at ensuring that even the ISPs and OSPs are made to be neutral in their management of copyrights and action on takedown notices.
The poor constitution of the current DMCA law even exempts ISPs and OSPs from the good faith requirement in the removal of material from the internet. In this case, the ISPs and OSPs do not have to wait and establish whether the takedown notice request filed by the copyright holder is based on genuine level of good faith belief. This provision allows for application of the ‘shoot first, think later’ principle in implementing the DMCA takedown notice by the ISPs and OSPs. It means that ISPs and OSPs have to just instantly take down material from the internet upon request by the copyright holder since they may know whether it is flawed or not in some way later, as long as the procedures written in the statute are followed. This particular legal provision by DMCA has turned ISPs and OSPs into mere agents of the copyright holders that are mostly the big corporations. The ISPs and OSPs now play to the whims of the business corporations, which are copyright holders. The interests of the users, who are respondents, are not considered by the ISPs and OSPs unless they file the counter-takedown notices. This state of affairs is wrong and must be corrected through amending the DMCA. In the amendment to this law, the principle of ‘shoot first, think later’ that is exercised by ISPs and OSPs must be eliminated. The new amendment should stop these ISPs and OSPs from being surrogates of the copyright holders. They must be compelled to start thinking first before shooting people’s content down. This new approach to the management of the takedown process will ensure that only the requests, which are informed by utmost good faith belief, become successful (Jackson, 2000). It will be the best way of restricting the copyright holders from requesting a broad take down to censor material on the internet just because they do not like it. It will make it possible for the DMCA takedown notice requests to be investigated to establish their degree of legitimacy.
Furthermore, the current DMCA takedown notice procedure tends to deem a respondent as guilty. This provision is unjust because the fundamental principle of justice is the assumption of innocence until proven guilty. The DMCA takedown procedure as provided in the law grossly contravenes the judicial principle of innocence assumption on the part of the accused (Jackson, 2000). Therefore, the new amendment must change this status and provide for a hearing chance from the respondent before the material is taken down from the internet. The biasness in this law must be corrected through amendment.
The DMCA law should be amended with the aim of restricting the copyright holders from “shoot first, think later”, requesting a broad take down to censor any speech they may not like online without investigating legitimacy. This amendment is the panacea to the current problem of rampant abuses of the law by business corporations. Some amendments have been made on this law to extend its reach of copyright and limit the liability of the providers of online services for infringement by their users. There was exemption from direct and indirect liability of the online service providers as well as other intermediaries in the year 2000.
References
Cobia, J. (2008). The digital millennium copyright act takedown notice procedure: Misuses, abuses, and shortcomings of the process. Minn. JL Sci. & Tech. , 10 , 387.
Jackson, M. (2000). The Digital Millennium Copyright Act of 1998: A proposed amendment to accommodate free speech. Communication Law and Policy , 5 (1), 61-92.
Jennings, M. M. (2015). Business: Its Legal, Ethical, and Global Environment (Tenth ed.). Stamford: Cengage Learning.
Landau, M. (2001). Has the Digital Millennium Copyright Act Really Created a New Exclusive Right of Access: Attempting to Reach a Balance Between Users' and Content Providers' Rights. J. Copyright Soc'y USA , 49 , 277.
Review, H. L. (2015, March 10). Free to Be You and Me? Copyright and Constraint. Retrieved from Harvard Law Review Forum: https://harvardlawreview.org/2015/03/free-to-be-you-and-me-copyright-and-constraint/.
Review, H. L. (2016, April 8). Garcia v. Google, Inc. Retrieved from First Amendment: Speech: https://harvardlawreview.org/2016/04/garcia-v-google-inc/.
Review, H. L. (2016, June 10). Lenz v. Universal Music Corp. Retrieved from Copyright: https://harvardlawreview.org/2016/06/lenz-v-universal-music-corp/.
Urban, J. M., & Quilter, L. (2005). Efficient process or chilling effects-Takedown notices under Section 512 of the Digital Millennium Copyright Act. Santa Clara Computer & High Tech. LJ , 22 , 621.
