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What's the problem with DMCA takedown notices?

Participants in a US government discussion on the notice-and-takedown process disagree on a direction

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A U.S. government effort to encourage agreement among copyright holders and Web-based services on how to improve the notice-and-takedown process in the Digital Millennium Copyright Act began Thursday with some disagreement about what direction the discussions should take.

Several participants in the Department of Commerce Internet Policy Task Force's first public forum on improving the process called for the group to focus on standardizing the takedown notices, which copyright holders use to ask websites to take down infringing material.

Standardized notices could make the process easier for both copyright holders and for websites receiving the notices, several participants said. The agency has convened the discussions on the DMCA after its task force issued a policy paper last July examining online copyright enforcement.

With action in Congress not likely in the near term, a voluntary agreement between participants on some outstanding digital copyright issues could be productive, DOC officials said. The agency's multistakeholder dialogue, scheduled to continue for several months, is a "golden opportunity to find common ground and make meaningful improvements," said Michelle Lee, deputy director of the U.S. Patent and Trademark Office.

But participants disagreed on whether upcoming sessions should tackle reported abuses of the takedown process, one of about a dozen topics officials with the Department of Commerce and the USPTO threw out as potential issues for the group to address.

While there have been "anecdotes" of illegitimate takedown notices being sent, the problem of abusive notices is tiny, compared to the number of notices sent each year, said Ben Sheffner, vice president of legal affairs for the Motion Picture Association of America. One recent study found MPAA members sent 25 million takedown notices to search engines and cyber-lockers during a six-month stretch in 2013, and received only eight counter-notices challenging the requests.

"That suggests when you look at the number of incorrect or abusive notices in perspective, it's actually a minuscule percentage of the total," Sheffner said.

Others urged the group to address bogus takedown notices, because reports of abuse lead the public to question the legitimacy of the DMCA, said Corynne McSherry, intellectual property director at the Electronic Frontier Foundation.

Takedown abuse "regularly causes quite an uproar," she said. "Any multistakeholder dialog that was talking about the notice-and-takedown system and trying to improve it that didn't include a discussion of takedown abuse would really have no legitimacy in the eyes of many, many Internet users."

The DOC discussion should focus instead on ways to encourage copyright holders to better protect their content, said Ron Yokubaitis, co-CEO of Usenet provider Giganews and a Texas cattle rancher.

"There's not talk about the big problem, that is these rights holders don't brand their cattle," he said. "If multibillion-dollar companies, with tens of thousands of employees, will not invest the money to get you a brand for your cattle, how should I cry for you? They ought to be paying us for their darned cattle that wandered onto my ranch."

Many infringing files shared on the Internet start with digital rights management, but those technologies are hacked, countered Sandra Aistars, CEO of the Copyright Alliance. "The cattle are branded," she said.

Some participants questioned the need for major changes to the takedown process, particularly changes that would make it easier for copyright holders to file more notices. If anything, the DMCA process is now "too efficient," with millions of notices filed each year, said Jonathan Band, a lawyer representing the Computer and Communications Industry Association.

"From the perspective of a lot of my clients, the DMCA is working really, really well," he said. "It's always important to fine-tune it, but in terms of the notion that this is a system that's terribly flawed, we just don't accept that premise at all."

The DOC and USPTO plan to have additional discussions about the DMCA every six weeks, with meetings alternating between the Washington, D.C., area and San Jose, California.

Grant Gross covers technology and telecom policy in the U.S. government for The IDG News Service. Follow Grant on Twitter at GrantGross. Grant's email address is grant_gross@idg.com.



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