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Guild Advocacy Liaison Testifies at Copyright Office Discussion on the DMCA Notice

Posted by Rebecca Blake on July 11, 2016

On May 2nd and 3rd, the Guild participated in panel discussions conducted by the Copyright Office on the DMCA takedown process – the procedure that copyright holders utilize to compel ISPs, OPSs, and technology companies to remove infringing work from websites. Lisa Shaftel, Guild Advocacy Liaison, was invited to participate on two panels as one of the few representatives of visual artists. The discussions addressed different issues with the DMCA notice, and permitted the Office to ask questions and solicit the experiences of stakeholders: creators, authors, licensing agencies, technology companies, web hosts, and others.

Jackie Charlesworth, General Counsel and Associate Register at the Copyright Office, opened the hearings by describing the DMCA takedown process as “a tale of two cities.” Her observation was borne out by the divided testimony: those representing artists and authors described a system that is essentially broken, while technology companies (including ISPs and OSPs) professed satisfaction with a process that serves them well.

A common complaint of rights holders was that as soon as their infringed work was removed in response to a DMCA notice, it would reappear; creators described spending several hours per day devoted to just hunting down infringements and issuing takedown requests. However, technology companies said they would not consider closing or freezing the accounts of repeat offenders.

Public interest group Public Knowledge, a DC-based non-profit that promotes an open Internet, went so far as to equate closing the websites of repeat copyright infringers with censorship. Rights holders on that panel questioned why the violation of their copyrights was dismissed, and pointed out that ISPs have no issue with closing down or freezing accounts for non-payment. They also described coming across online companies that exist solely to post or provide infringing content, and to immediately repost that content after complying with a takedown notice.

Another issue rights holders described in detail was the onerous takedown process technology companies such as Facebook, Google, Amazon, and YouTube, as well as some ISPs, have devised. The notices seem to be a deliberate attempt to make it difficult for rights holders and creators to issue notices. (Read Vox Indie on Google’s Roadblocks to the DMCA Takedown Process for a description of such a process.)

Shaftel’s testimony on the takedown process was drawn from the responses to the DMCA survey that the Guild and other organizations ran earlier this year. The representatives from the Copyright Office seemed genuinely surprised when Shaftel stated that artists and photographers reported that some OSPs require visual creators to submit copyright registration certificates with the takedown demand. (Copyright registration is not required by law for a DMCA takedown notice.) Others even rejected that as proof of copyright ownership, since registration certificates don’t include an image of the copyrighted work.

The most startling statement came from Patrick Flaherty from Verizon, who reported that Verizon ignores any takedown notices that aren’t accompanied by a court order. If this is correct, this means that to remove their infringed work from a Verizon website, a copyright holder has to hire an attorney and go to court to get a judge to issue a court order. The onerous requirements by OSPs (such as court orders, registration certificates, and multi-step procedures) ignores the intent of Section 512 of the DMCA law, which is to provide copyright holders an expedient means to remove their infringed work, while providing a safe harbor protection for OSPs from lawsuits.

Shaftel thinks rights holders and creators were able to impress upon the Copyright Office that the DMCA process is failing them. Her takeaway was two-fold:

1. Creators and rights holders were unanimous in stating that the law needs to be revised to takedown and stay down.

2. There needs to be a standardized form for takedown notices – perhaps created by the Copyright Office – to enable a clear, simpler procedure, and prevent OSPs and technology companies from piling on additional requirements.

Shaftel is unsure of where the Copyright Office will take the findings; any adjustment to the law will have to be made by Congress. But she’s heartened that the concerns of visual artists were heard, and by Jackie Charlesworth’s assertion that she believed the Copyright Office did have the power to compose a standardized takedown notice and procedure so as to eliminate ISPs from making up their own requirements.

Below: The venue for the roundtable discussions, the Thurgood Marshall United States Courthouse in New York City.

Thurgood Marshall Courthouse

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