Critics of the Digital Millennium Copyright Act (DMCA) got some ammunition recently, when Warner Bros. Entertainment (WB) asked Google to take down hundreds of copyright-infringing websites ‘ only to later realize that it had included legitimate sites and some of the entertainment company’s own official pages. The blunder dredges up questions about whether the current notice-and-takedown system is working for both copyright owners and service providers.
Section 512 of the DMCA provides the notice-and-takedown process that allows copyright owners, like WB, to protect their works from online infringement. WB, via its hired DMCA agent Vobile, sent a DMCA takedown notice to Google listing over 300 allegedly infringing sites. As tech blog TorrentFreak discovered, legitimate domains were targeted, such as an Amazon page selling WB’s The Dark Knight and an official IMDb page for Batman Begins. Also listed were some of WB’s own official websites for movies such as The Matrix.
The episode highlights how the DMCA notice-and-takedown process can be used to take down non-infringing content, says Paul Sieminski, general counsel at Automattic, the company behind the online publishing company WordPress. “There’s kind of this spray-and-pray effect of sending out a huge volume of notices without any human review,” he says. “In addition to the infringing matches, there’s a huge volume of mistakes like in this [WB] one.”
WB’s mistake also underscores the lack of balance in the takedown provisions, according to Sieminski. “If we [as a platform] refuse a notice and we’re wrong about it, we can be sued for infringement,” he says. “There’s a legal incentive to just close our eyes and take things down. Or, you have to invest in the human resources to weed out mistakes or abuses in requests,” which is what Automattic has done.
But the sender of the takedown notice has no reason to make sure that non-infringing sites aren’t targeted, Sieminski claims. “On the other side, there is little, if any, incentive to be judicious about making allegations of copyright infringement,” he says. “Right now, there is no penalty for sending inaccurate or abusive infringement notices. Section 512(f) [i.e., the DMCA's good-faith requirement for sending a takedown notice] is the only route for recourse, but it’s basically ineffective.”
In the first six months of 2016, WordPress received 4,258 DMCA takedown notices, 9% of which were rejected as abusive, according to the company’s Transparency Report. And though those numbers are nowhere near the volume of, say, what Google receives, Sieminski says the costs of those abuses are high. “There’s really a big chilling effect on speech, especially controversial speech, because there’s a very handy tool to use to remove that type of reporting from the Internet,” he says. “And as a company, we have to invest in the human resources ‘ to sift through the mountain of notices we get.”
Though, if you ask John Wirt, CEO and general counsel of the boxing promotional company Square Ring, the current framework is as it should be. “The way the law is structured right now strikes the right balance,” he says. “Even if the law is slanted toward the intellectual property owners, I think that’s the way it has to be. If anything, more rights should be given to the owners.”
Wirt notes that for every pay-per-view fight offered by his company, he knows there will be many parties attempting to steal the fight. “I’m sure there’s an example of a DMCA request chilling speech, but you have to look at the bigger picture.”
The views expressed in the article are those of the authors and not necessarily the views of their clients or other attorneys in their firm.