Tell us what's wrong with the DMCA, says US Copyright office

The US Copyright Office is asking the tech industry and members of the public to comment about the Digital Millennium Copyright Act (DMCA), and in particular the rules governing copyright infringement. Section 512 of the DMCA gives ISPs and internet hosts immunity from prosecution if material that infringes copyright, such as …

[Anonymous Coward]

The main problem with the DMCA is that it leaks beyond its borders. Just like American imperialism.

[streaky]

That's not really an issue with the DMCA itself, powerful country with many large internet companies having physical operations there it'll always be true no matter what the law actually says. The US is going to have copyright law and it'll always leak no matter how it's written.

[Anonymous Coward]

The main problem with the DMCA is that it leaks beyond its borders. Just like American imperialism.

Even that would not be a major issue if abuse of this would be punished with a bit more than a slap with a wet noodle. The disparity in power between the organisation that abuses DMCA and the entities its used against (usually individuals) makes abuse not only possible, but likely. If abuse would be given criminal statue it would empower those who have been on the receiving end of malicious use to cause some pain it may reduce its use and clear the air a bit.

Personally I think the DMCA shows too many signs of something that was quickly dreamt up to please political sponsors, and nothing of consideration for the impact of abuse. There must be better ways.

[Efros]

Shurely

Be quicker to ask what's right with it and then strike down the rest of it.

[Christoph]

"Repeat infringers" are penalized.

How about massive penalties for companies who repeatedly make invalid takedown demands for legitimate use, or for material that they do not even own.

[David 132]

How about massive penalties for companies who repeatedly make invalid takedown demands for legitimate use, or for material that they do not even own.

Have an upvote (the first of many, I suspect).

My biggest problem with the law is that it's asymmetric.

- Penalties for "infringement" of copyrighted works (even something as minor as, say, using a song from a 50-year-old Disney movie to accompany a video of your kids on Youtube): draconian. Lives ruined, people bankrupted.

- On the other hand, the penalties for sending out thousands of false infringement notices: zilch. That's organizations putting their legal signature to something that says "we have good faith belief that X is infringing" - having done zero due diligence to verify it.

If you want to feed a narrative of "big business vs. the little guy" and nurture the anti-capitalist mob mentality, I can't think of many better ways to do it than this.

My own modest proposal: one simple change to the law.

If a takedown notice is shown to be false or incorrect, then penalties are levied on the complainant equal to 2x what they demanded from the "infringer".

That should concentrate minds in short order!

[a_yank_lurker]

@David 132 - First problem is base the maximum fines one whether the person is selling the copyrighted material or is just sharing. For the sharers, cap the maximum at say 5x ( or there about ) the retail price for each shared title. Also, make the maximum a declining maximum down to 1x retail price for older titles. If the title is not commercially available from the retailers there is no fine at the time of the sharing. The logic of the last bit is one can not be losing money if the item is unavailable new from a retailer.

[David 132]

a_yank_lurker: yes, those are good points, but you're addressing the "what to do with people who HAVE infringed" side of the DMCA. Which, yes, needs fixing, I agree absolutely.

I was focusing on the other side, "what to do for people who have been unjustly accused".

I think we're both of one accord on this. Have an upvote. And a pint of microbrew from Oregon.

[fuzzie]

Down here (South Africa) copyright infringement is a civil case, similar to breach of terms/contract. You also can't file for damages, only for lost income and that's typically calculated at a reasonable rate, e.g. the typical rental cost of the item. That's on the consumer/individual end of the scale. If you're in the business of selling, distributing the illicit content that the usual fraud and racketeering laws come into play and it becomes a criminal offence.

I may have some subtleties wrong there since IANAL, but that approach have also been extremely sane. I also like the idea that state resources aren't (ab)used to chase small-fry on behalf of big business. There are some attempts though, through a eCrimes laws to make copyright violations a criminal.

[Steven Roper]

Yes, a thousand times this.

I would add to the false/incorrect clause another stipulation that the demonstrable misapplication of the DCMA as a tool of social or political censorship should be likewise punished. Such as the commonplace abuse of the DMCA by a certain quasi-religious organisation founded by a mediocre 20th-century science fiction author may attest.

[Code For Broke]

But how many of us who are cheering the proposals of David 132, et al, will be lodging formal comments with the US Copyright office?

Can't say I'll be bothered to even figure out where the comment form is located, let alone string a few words together summarizing my disgust with the injustice and expectation that the wrongs of the DMCA be righted.

[David 132]

@Code For BrokeBut how many of us who are cheering the proposals of David 132, et al, will be lodging formal comments with the US Copyright office?

Ah, would that you were not so right. Activism in the 21st Century is great, isn't it?

"I AM SO ANGRY ABOUT THIS INJUSTICE THAT I WILL CHANGE MY FACEBOOK AVATAR! AND TWEET TO ALL MY FRIENDS! AND WRITE A FURIOUS BLOG ENTRY!"

Icon, because.

[Anonymous Coward]

Let's make sure this new legislation allows takedown of any sort of content with little oversight... It will make it easier to develop a Ministry of Truth later.

[Youngone]

Bought and paid for

As pointed out above, the DMCA is asymmetric, but that is the intent.

When laws are written by industry, and the intention is to benefit industry this is the result.

The US Congress is paid for by industry for their own benefit, it has nothing to do us. Stop complaining.

[Nick Kew]

It's a weapon of terror

as documented in the story at DMCA: terror weapon

(yes, that's a pointer to my blog).

[Anonymous Coward]

I could tell them what was wrong with DMCA, but that would be a violation of DMCA, so I won't.

[dave 81]

Everything.

[Mystic Megabyte]

Irdeto USA

Like these arseholes who think that they own Ubuntu

http://ubuntuforums.org/showthread.php?t=2307331&page=2&p=13411486#post13411486

[Wade Burchette]

Dear Reg:

The US Copyright office is not yet taking comments. This is just a preliminary notice. According to the link: "Specific instructions for submitting comments will be posted on the Copyright Office website on or before February 1, 2016." If you could be so kind as to check every day as to when comments are being allowed so that we will know when to submit our comments.

I personally am going to tell the copyright office that none of the copyright protections implemented have stopped copyright infringement nor will they ever. The only accomplishment is to make life miserable for those who do not infringe. The DMCA should not be allowed to override fair use. There has to be a better way to prosecute copyright infringement without violating my fair use rights. (I haven't worked out the exact wording yet.)

[sisk]

Let's start with the fact that a DMCA notice fired off to an entity means they have to take down the material immediately, regardless of whether or not it's infringing a copyright or if the issuer even owns a copyright on anything at all, or face prosecution.

I could send a DMCA notice to YouTube for the latest political vlogger rant that offended me and they'd have to take it down even though I have no real grounds to claim ownership of the video. It would, of course, be put back up in a day or two when the content owner took some time to prove that it was an abusive notice, but that would be a day or two that something was off the web just because I wanted it off the web and I would face no real consequences for taking such action. I would never do something like that, but it has been done by many under DMCA.

[Kiwi]

Let's start with the fact that a DMCA notice fired off to an entity means they have to take down the material immediately, regardless of whether or not it's infringing a copyright or if the issuer even owns a copyright on anything at all, or face prosecution.

Crazy thought but... Has anyone considered firing some of these off to various government websites.. Like maybe the copyright office telling them their DCMA pages infringe your IP?

Could be a bit of fun.. Of course, you would need to be ready to bolt to some country that has a sizeable population and no friendly relations with the US, and may spend a while stuck in a backroom in some embassy somewhere.. It would be interesting to see if they follow their own rules!

[tp2]

Nice picture?

What's with the doctor who ripoff picture on an article about copyright? Are you saying that you have a permission to use images from doctor who tv series in your article? I doubt it. But it kinda fits the theme...

On the govt asking for dmca comments -- I'm sure this will be useless, they get flooded with comments, and the real issues will get swamped under huge volume of "Please get rid of DMCA immediately" -style comments.

[hayzoos]

What about the threat of DMCA for presentations at conferences? What of rooting devices? What of refilling toner cartridges?

Do any of these have anything to do with copyright? I am thinking of actual instances which have nothing to do with copyright. It is bad enough when the DMCA is abused in the name of copyright and there is a copyright basis. It is worse when the DMCA is abused when there is no copyright basis. Often there is a twisted path of logic which attempts to establish a copyright basis. In a court of law the judge would summarily dismiss such attempts at twisted logic.

Unfortunately, the rooting devices topic was concerning a rule made by the Copyright Office itself. So basically the rulemaking body does not understand copyright. Until that is fixed, forget any other fixes.

The Copyright Office is a department of the Library of Congress. We all know that congress is the opposite of progress.

[gnasher729]

"What about the threat of DMCA for presentations at conferences? What of rooting devices? What of refilling toner cartridges?"

If you refer to Lexmark and their feeble attempts to use the DMCA to prevent people from making compatible ink cartridges, they were gently informed that these cartridge makers didn't actually do anything that was covered by the DMCA. To say "encyrpted software, DMCA, evil laughter" isn't enough.

And remember there are two different DMCAs, the one discussed here which gives free harbour protection to websites if they take down copyright infringing materials when asked to, and the one about breaking copy protection measures which Lexmark was all about.

[Mike 16]

Massive false-filing

I see a couple mentions of "pillory the ones who file 'too many' false complaints".

Problem with that is it would mean we have a way of identifying them. A major beneficiary of such a rule would be the lawyers that specialize in pre-built shell corporations. 1000 takedown demands from BigCo might trigger some sort of alarm (unless BigCo is someone like Warner or Universal), but 10 takedown demands from each or 100 companies in the Seychelles may not. It will be an arms race like that with spammers.

[Spaceman Spiff]

The DMCA is what's wrong with the DMCA. Simply put, punishing people for moving stuff they have paid for into more accessible formats is just egregious! Punish those who rip off content for profit. Not people who want to view stuff in order to determine if it is worth purchasing. I have 100's of DVD's and CD's of stuff that I have purchased because I first viewed a "pirated" copy and decided I wanted a legitimate copy for my library. I would NOT purchase a copy first in many cases because I decided it wasn't worth the "price of admission" and stopped watching after 15 minutes, and then dumped the copy into the bit-bucket.

[Kiwi]

I have 100's of DVD's and CD's of stuff that I have purchased because I first viewed a "pirated" copy and decided I wanted a legitimate copy for my library. I would NOT purchase a copy first in many cases because I decided it wasn't worth the "price of admission" and stopped watching after 15 minutes, and then dumped the copy into the bit-bucket.

The sad problem for that argument is that there are so many people who say exactly the same thing publicly, while privately showing off their terrabytes of downloaded movies they've collected.

[For disclosure, I quite openly support some levels of "piracy" (find the term itself appalling) and have myself used it to get full episodes of TV shows eg "Torchwood" where TVNZ refused to play the first ep of S2 and also IIRC chopped significant portions of the rest of the series so they could squeeze another 10 minutes of ads into each showing, same as they did with B5 (which, BTW, I brought the whole lot of on VHS but also got a digital copy so I can enjoy yet protect my investment!) ]