In May, the US Copyright Office came to San Francisco to hear from various stakeholders about how well Section 512 of the Digital Millennium Copyright Act or DMCA is working. The Internet Archive appeared at these hearings to talk about the perspective of nonprofit libraries. The DMCA is the part of copyright law that provides for a “notice and takedown” process for copyrighted works on the Internet. Platforms who host content can get legal immunity if they take down materials when they get a complaint from the copyright owner.

This is an incredibly powerful tool for content owners–there is no other area of law that allows content to be removed from the web with a mere accusation of guilt. Victims of harassment, defamation, invasions of privacy, or any other legal claim, have to go to court to have anything taken down.

Unfortunately, this tool can be, and has been abused. We see this every day at the Internet Archive when we get overbroad DMCA takedown notices, claiming material that is in the public domain, is fair use, or is critical of the content owner. More often than not, these bad notices are just mistakes, but sometimes notices are sent intentionally to silence speech. Since this tool can be so easily abused, it is one that should be approached with extreme caution.

We were very concerned to hear that the Copyright Office is strongly considering recommending changing the DMCA to mandate a “Notice and Staydown” regime. This is the language that the Copyright Office uses to talk about censoring the web. The idea is that once a platform gets a notice regarding a specific copyrighted work, like a specific picture, song, book, or film, that platform would then be responsible for making sure that the work never appears on the platform ever again. Other users would have to be prevented, using filtering technology, from ever posting that specific content ever again. It would have to “Stay Down.”

This idea is dangerous in a number of ways:

No Due Process. Notice and Staydown would remove all of the user protections built in to the DMCA. Currently, the statute allows users who believe material they have posted was taken down in error to file a counter-notification. If the copyright holder does not choose to bring a lawsuit, then the content can be reposted. The law also prohibits the sending of false notices, and allows users who have been falsely accused to bring a claim against their accuser. These protections for the user would simply go away if platforms were forced to proactively filter content.

Notice and Staydown would remove all of the user protections built in to the DMCA. Currently, the statute allows users who believe material they have posted was taken down in error to file a counter-notification. If the copyright holder does not choose to bring a lawsuit, then the content can be reposted. The law also prohibits the sending of false notices, and allows users who have been falsely accused to bring a claim against their accuser. These protections for the user would simply go away if platforms were forced to proactively filter content. Requires Platforms to Monitor User Activity. The current statute protects user privacy by explicitly stating that platforms have no duty to monitor user activity for copyright infringement. Notice and Staydown would change this–requiring platforms to be constantly looking over users’ shoulders.

The current statute protects user privacy by explicitly stating that platforms have no duty to monitor user activity for copyright infringement. Notice and Staydown would change this–requiring platforms to be constantly looking over users’ shoulders. Promotes Censorship. Notice and Staydown has a serious First Amendment problem. The government mandating the use of technology to affirmatively take speech offline before it’s even posted, without any form of review, potentially violates free speech laws.

Notice and Staydown has a serious First Amendment problem. The government mandating the use of technology to affirmatively take speech offline before it’s even posted, without any form of review, potentially violates free speech laws. It Just Won’t Work In Most Cases. Piracy on the web is a real problem for creators. However, filtering at the platform level is just very unlikely to stop the worst of the piracy problem. Filtering doesn’t work for links. It doesn’t work well for certain types of content, like photographs, which are easily altered to avoid the filter. And so far, no computer algorithm has been developed that can determine whether a particular upload is fair use. Notice and Staydown would force many cases of legitimate fair use off the web. Further, intermediaries are not the right party to be implementing this technology. They don’t have all the facts about the works, such as whether they have been licensed. Most platforms are not in a good position to be making legal judgements, and they are motivated to avoid the potential for high statutory damages. All this means that platforms are likely to filter out legitimate uses of content.

Piracy on the web is a real problem for creators. However, filtering at the platform level is just very unlikely to stop the worst of the piracy problem. Filtering doesn’t work for links. It doesn’t work well for certain types of content, like photographs, which are easily altered to avoid the filter. And so far, no computer algorithm has been developed that can determine whether a particular upload is fair use. Notice and Staydown would force many cases of legitimate fair use off the web. Further, intermediaries are not the right party to be implementing this technology. They don’t have all the facts about the works, such as whether they have been licensed. Most platforms are not in a good position to be making legal judgements, and they are motivated to avoid the potential for high statutory damages. All this means that platforms are likely to filter out legitimate uses of content. Lacks Transparency. These technical filters would act as a black box that the public would have no ability to review or appeal. It would be very difficult to know how much legitimate activity was being censored.

These technical filters would act as a black box that the public would have no ability to review or appeal. It would be very difficult to know how much legitimate activity was being censored. Costly and Burdensome. Developing an accurate filter that will work for each and every platform on the web will be an extremely costly endeavor. YouTube spent $60 million developing its Content ID system, which only works for audio and video content. It is very expensive to do this well. Nonprofits, libraries, and educational institutions who act as internet service providers would be forced to spend a huge amount of their already scarce resources policing copyright.

Developing an accurate filter that will work for each and every platform on the web will be an extremely costly endeavor. YouTube spent $60 million developing its Content ID system, which only works for audio and video content. It is very expensive to do this well. Nonprofits, libraries, and educational institutions who act as internet service providers would be forced to spend a huge amount of their already scarce resources policing copyright. Technology Changes Quickly, Law Changes Slowly. The DMCA requires registered DMCA agents to provide a fax number. In 1998, that made sense. Today it is silly. Technology changes far too quickly for law to keep up. Governments should not be in the business of mandating the use of technology to solve a specific policy problem.

The DMCA has its problems, but Notice and Staydown would be an absolute disaster. Unfortunately, members of the general public were not invited to the Copyright Office proceedings last week. The many thousands of comments submitted by Internet users on this subject were not considered valuable input; rather, one panelist characterized them as a “DDoS attack” on the Copyright Office website, showing how little the people who are seeking to regulate the web actually understand it.

The Copyright Office has called for more research on how the DMCA is working for copyright holders and for platforms. We agree that this research is important. However, we must remember that the rest of the online world will also be impacted by changes to the DMCA.