The CEO and chairman of the RIAA says that the current notice and takedown anti-piracy process is both costly and increasingly pointless. Cary Sherman says the safe harbor provisions of the DMCA have forced labels into a "never-ending game" of whack-a-mole while sites under its protection effectively obtain a discount music licensing system.

It’s no secret that the major record labels and their Hollywood counterparts are less than satisfied with the framework designed to facilitate the removal of infringing content on the Internet.

The DMCA and its European equivalent allow rightsholders to send notices to service providers which mandate the removal of allegedly infringing content in a timely manner. While some sites, The Pirate Bay for example, completely ignore takedown notices, most other services such as Google are quick to comply.

Nevertheless, the burden remains on copyright holders to not only report infringing content when it appears on a site, but to also keep reporting it when the same content reappears time and time again. Under the law, providers only have to keep responding to complaints in order to avoid liability, but copyright holders complain that the process is exhausting. Once content is taken down it should stay down, they argue.

In a Forbes op-ed discussing the value of content in the digital age, RIAA chairman and CEO Cary Sherman has again been highlighting the problems his members face, describing the current enforcement system as “seriously antiquated” and criticizing those who take advantage of it.

“Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages — as was the case when the [DMCA] was passed in 1998 — it is largely useless in the current world where illegal links that are taken down reappear instantaneously,” Sherman says.

“The result is a never-ending game that is both costly and increasingly pointless.”

But while dedicated piracy sites are clearly a thorn in the side of the RIAA, Sherman doesn’t limit his criticism to services that operate on the boundaries of the law. Although they remain unnamed, the music group CEO also appears to take aim at user-generated content sites such as YouTube and Soundcloud.

“Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole,” Sherman says.

These kinds of allegations are not new. In April, IFPI chief executive Frances Moore accused YouTube of effectively gaming copyright law in order to avoid fair licensing negotiations with rightsholders.

“We want to ensure that services that make our content available, including by curating and monetizing it, are licensed on the same basis,” IFPI told TorrentFreak.

While platforms such as Spotify and Deezer are fully licensed by the labels, the RIAA suggests that others prefer to leverage illicit user uploads instead. While their response to DMCA notices keeps them safe, they are in effect obtaining Spotify-style licensing deals at a fraction of the price.

“The notice and takedown system — intended as a reasonable enforcement mechanism — has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth,” Sherman says.

In a twist on historical accusations that the music industry failed to innovate quickly enough during the last decade, Sherman says that it’s those taking advantage of a “broken” takedown system that are now living in the past.

“While the music industry has embraced new technology and business models, the beneficiaries of this broken system cling to this antiquated law that was enacted at the turn of the century, well before the modern Internet and today’s most advanced (and unimagined) technologies,” the RIAA chief concludes.

For the world’s largest music labels the future must now offer a modified copyright regime in which “take down” means “stay down” – or face the consequences. Wary of liability, companies like Google are likely to fight that all the way.