Eagles drummer and singer Don Henley has a world of trouble on his mind, and he hopes that Congress will lighten his load... by gutting the best part of the Digital Millennium Copyright Act (DMCA). Defending his copyrights in the digital age is just too hard for Henley and his labels, because it requires constant vigilance of both mainstream user-upload sites like YouTube and dodgier destinations like BitTorrent trackers.

In comments to Rolling Stone last week, Henley admitted that the "the onus of legally pursuing infringement has always been on copyright owners," but went on to argue that the burden of this one-sided monitoring has become too great to handle. Instead, he wants to gut the "safe harbors" in the DMCA that protect sites from material uploaded by users, so long as they take it down in response to a valid DMCA copyright complaint. Those sites should have to do some copyright monitoring of their own.

"Without this change, copyright owners are left with the unjustifiable and oppressive burden of constant policing of the online companies’ sites, which has little real effect on the continual problem of infringement of property, and serves mostly to embitter fans and the users of these sites," said Henley. "The recording industry was bullied by online retailers into removing protective measures, such as DRM, from their sound recordings or else facing the prospect of these retailers refusing to distribute their catalogs. Yet, so far, digital royalties on music have failed to live up to the hype; in fact, removing such protective measures has increased the theft of music and other intellectual property."

Henley made his comments to Rolling Stone's Steve Knopper, whose terrific 2009 book Appetite for Self-Destruction took aim at old-school thinking in the music biz. The book's last chapter, "The Future," is subtitled, "How Can the Record Labels Return to the Boom Times? Hint: Not by Stonewalling New High-tech Models and Locking Up the Content." Knopper refers to Henley's remarks as "surprisingly conservative."

But Henley's not the only one making them; Cary Sherman, president of the RIAA, also wants intermediaries to help out his member companies with monitoring and enforcement.

At a speech last week at an Aspen conference, Sherman made the point again. "The DMCA isn't working for content people at all," he said. "You cannot monitor all the infringements on the Internet. It's simply not possible. We don't have the ability to search all the places infringing content appears, such as cyberlockers like RapidShare."

Last week, the music industry blog Hypebot described the RIAA as "one of the most loathed, criticized and beleaguered industry trade groups of the last decade," pointing to similar comments from Sherman to VICE magazine.

The trade group famously abandoned most of its litigation against individuals two years ago, shifting instead to a strategy of cajoling ISPs and other intermediaries into working together to address infringement; in its view, the DMCA safe harbors aren't about having sites like YouTube and ISPs like Verizon just sit back and do nothing while music companies waste their cash on repeated takedown notices.

The MPAA couldn't agree more. In an FCC filing earlier this year, MPAA wrote, "In adopting the safe harbor provision Congress clearly intended to promote a framework in which service providers and copyright owners work in a cooperative fashion to address the challenges related to online theft."

A2IM, the trade group for indie music labels, said recently that the DMCA "could require music labels to become 24/7 take down notice servers pulling them from the work of running their businesses and marketing their artists' music." A2IM pointed out that even if a site took down a song by an artist in response to a takedown notice, the site would be blameless if the exact same track was reposted the very next day.

"This is clearly a loophole that was unintended by those who wrote and passed the DMCA but is being abused by websites building user audiences and substantial businesses on the backs of copyrighted creative works without having to be granted permission for use nor compensating the copyright holders," A2IM argues.

Universal, one of the largest music labels in the world, complained in a recent court case against the video-upload site Veoh that it "must incur the enormous expense of constantly monitoring Veoh's internet site to identify infringing content and request its removal in order to protect their property. And the task is not limited to monitoring Veoh alone. Rather, it is geometrically larger since thousands of comparable websites must also be monitored. The task is ultimately Sisyphean."

Viacom, of course, is famously after a billion dollars from YouTube, claiming that it doesn't even qualify for most of the DMCA's safe harbors. In a brief ruling with major implications, a federal judge completely disagreed, upholding a robust interpretation of the safe harbor principle.

Everyone's a critic

While the DMCA's safe harbors helped to build the Web by shielding Internet companies from most third-party infringement claims, the safe harbor provisions don't always sit well with digital activists. Professor Wendy Selzter, for instance, a long-time advocate for digital rights and a former EFF staff member, wrote a paper earlier this year in which she agreed that safe harbors have been abused.

In her view, though, this is because companies targeted by DMCA takedown notices have to remove the material in question if they hope to retain their safe harbor status. This makes it easy for illegitimate DMCA claims to succeed (at least for a few weeks, until a counter-takedown can be filed and acted upon).

"The public is harmed by the loss of speech via indirect chilling effect no less than if the government had wrongly ordered removal of lawful postings directly," writes Seltzer. "Indeed, because DMCA takedown costs less to copyright claimants than a federal complaint and exposes claimants to few risks, it invites more frequent abuse or error than standard copyright law."