Summary:

The DMCA, a law intended to protect creative expression on the internet while protecting content owners, is under strain — but it’s still the best system we’ve got.

This year marks the 15th anniversary of the Digital Millennium Copyright Act (DMCA), a 1998 law intended to encourage new forms of online expression while also giving content owners a way to protect their work.

So far, the system has more or less worked: the online world is bursting with creative compositions while copyright owners have an easy way to take down unauthorized copies of the Hunger Games.

Lately, though, DMCA’s great balancing act is under strain with an outburst of grumbling from all sides. Rights owners, for instance, grouse that infringers upload new files faster than they can issue notices to take them down.

As copyright scholar Bruce Boyden notes in a new policy paper, the legal system was designed at a time when online transmission rates were relatively slow, meaning that rights owners had a chance to prevent uploaded works from reaching a large audience. But now:

A tool that was originally designed as an emergency stopgap measure, to be used in isolated instances, is now expected to manage infringement on a persistent, ubiquitous, and gargantuan scale.

Boyden also points to figures in which the MPAA claims that, in a 6 month period, it sent 11 million takedowns to search engines and another 13 million to sites directly:

DMCA figures

These numbers only reflect takedown requests by major copyright owners, and exclude pornography, so the overall number is likely much higher. The process is exasperating for rights owners and exhausting for Google and other companies that, under the terms of the DMCA, must take down the files.

All this had led Boynton to suggest that infringers are getting the upper hand and that the DMCA no longer works. But that’s only half the story.

The other half is about copyright owners who, in an overzealous attempt to stamp out “piracy,” blow off rules that require them to use the DMCA takedown process with care and good faith. As TechDirt has noted, large content owners regularly make illegitimate takedown requests — in part because there is little consequence for doing so. This means that the entertainment industry keeps zapping people’s content into a black hole for no reason.

The problem has led the popular blogging platform WordPress to file lawsuits against DMCA abuse, while famous legal scholar Laurence Lessig is in the process of taking a record company to the wood-shed after it used the DMCA to remove one of his online lectures.

So if no-one is happy with the DMCA, does that mean the law is broken? Not necessarily. As Churchill said of democracy, it’s the worst system — except for all the other systems that have been tried. In the case of copyright, this means everyone is better off sticking with the imperfect compromise of the DMCA rather than tearing it down. There may be room to tweak the edges of the DMCA,  but it’s far better to keep it than  to replace it with a system that turns internet companies into content police (as the entertainment industry wants) or simply abandoning it to let infringers run wild.

For now, a more fertile grounds for copyright law reform are the absurd extensions to copyright terms that have done so much to discredit the system in the first place.

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