The notice and takedown provisions of the U.S. Digital Millennium Copyright Act (DMCA) provide a streamlined way for copyright owners to remove material from the Internet. Now almost two decades after the law was passed, the DMCA takedown system has proved itself to be an utter disappointment. Users are frequently outraged by false takedown notices that are issued recklessly (such as the scattershot automated notices that Total Wipes Music Group recently sent targeting websites, including EFF's) or even maliciously (such as the use of takedowns to silence political speech).
North of the United States, regulators have had the advantage of being able to draw some salutary lessons from it when crafting an equivalent system for Canada. The regime that they came up with—known as “notice and notice”—formally commenced in January this year (though essentially the same system had already been running on a voluntary basis for a few years).
Rather than requiring content to be taken down from the Internet, all that the notice and notice system requires of Internet intermediaries, such as content hosts and ISPs, is that they notify users that a copyright infringement claim has been received and pass along a copy of that notice. From that point forward, the intermediary steps out of the picture, and it is for the user to remove the disputed content voluntarily, or for the content owner to take them to court for an order that they do so. As such, the scope for content to be removed from the Internet without human review is immediately eliminated.
So far, so good. But copyright holders soon found a loophole in the new law. They began issuing notices to Canadian users that made false claims about their potential liability for copyright infringement. The worst of these, sent by U.S.-based copyright troll, Rightscorp, asserted that Canadians could be held liable for the astronomical penalties that apply under U.S. copyright law, and followed this misstatement with a demand for an out of court monetary settlement. Well-known Canadian copyright lawyer Michael Geist described it back in January:
In a nutshell, Rightscorp and BMG are using the notice and notice system to require ISPs to send threats and misstatements of Canadian law in an effort to extract payments based on unproven infringement allegations. Many Canadians may be frightened into a settlement payment since they will be unaware that some of the legal information in the notice is inaccurate and that Rightscorp and BMG do not know who they are.
Today, EFF has added its name to an open letter to Canadian Minister of Industry, James Moore, demanding that this loophole be closed, in order to put an end to the abusive demands of copyright trolls. The letter, which was led by Canadian groups CIPPIC and OpenMedia.ca, contains a series of simple recommendations that would fix the problem, by:
- Properly identify the notice as a mere allegation of infringement, and not a determination of infringement, a commencement of litigation or a conclusion that the recipient is in fact liable for unlawful conduct
- Accurately identify the rights-holder on whose behalf the notice is sent
- Provide details informing the allegation of infringement (including the work involved, the date and time)
- Include no settlement demand or offer;
- Make no mention of damages or other remedies under the Copyright Act, or, alternatively, require accurate reference to such remedies, including limitations applicable to non-commercial infringement under the law;
- Explicitly state that receipt of a notice does not necessarily mean the recipient is engaged in infringing activities;
- Standardize notice letters, preferably in forms provided by regulation; and
- Mention the potential applicability of exceptions and defences to copyright infringement such as fair dealing.
These recommendations are also consistent with the Manila Principles on Intermediary Liability, the new set of policy recommendations that EFF and broad coalition of partners from around the world launched last month at RightsCon. The Manila Principles recommend a voluntary notice and notice system as a replacement for the DMCA-style notice and takedown system, for cases where user-uploaded content is alleged to infringe copyright law or, indeed, any other applicable law. But, mindful of the Canadian experience, it also requires users to be informed of their rights in any notice they receive, and recommends the imposition of sanctions for abusive notices.
The result of such a system would be a win for users, rightsholders, and intermediaries alike—legitimate content would stay up, users would be educated about their legal responsibilities, and intermediaries would be spared from the burden of processing and acting on the thousands of automated takedown notices that swamp their systems today. You can read more about the Manila Principles, endorse them, and help us spread the word about how proper state policies can safeguard users' human rights online. The more supporters the Manila Principles have, the more persuasive they will be with lawmakers from Canada, the United States and beyond as we advocate for better, fairer intermediary liability regimes worldwide.