The Digital Millennium Copyright Act (DMCA), passed by Congress in 1998, prevents the unlawful distribution, reproduction, or performance of copyrighted works and technology products that circumvent access control. This legislation decreased the liability of online service providers (OSP) by shifting their infringement responsibility to individual users. Its main aim was to facilitate online copyright protection granting significant power to rights holders. Under the US copyright law, OSPs enjoy immunity, so-called safe harbor, against secondary infringement liability as long as they follow the DMCA takedown process (Matteson 9). They do not have the duty to monitor their services for possible infringement. Instead, they are obliged to respond to copyright complainants’ cease-and-desist letters by disabling and removing the disputed content.
Cloud base filesharing is a process of applying cloud computing-based technologies to exchange digital files between customers. In other words, such services as Google Drive and Dropbox provide users with space to upload, read, download, and edit their content. What is more, their customers can share the uploaded files by granting access privileges to others. Although keeping and sharing personal content is allowed, exchanging copyrighted digital files via clouds is banned. Moreover, a person can upload a copy of the purchased digital item only for backup purposes (O’Riley). In its turn, DMCA and its Digital Rights Management focus efforts on preventing illegal circumvention, not actual cloud storing or copying. Individuals can keep copies using different cloud systems at their own risk until they decide to sell or share access.
The idea/expression dichotomy and fair use doctrine are the main embedded boundaries to copyright power designed to protect free speech and fair use. The latter allows copying without permission for specific and limited purposes such as commentary, parody, and criticism (Matteson 7). In that case, another person can distribute, perform, and copy works created by others. For instance, most YouTubers who make movie reviews include original clips that are allowed under the doctrine. Nevertheless, it is hardly applicable to cloud-based filesharing of copyrighted products, as the only reason one can store the copy is to replace the original in case of damage and loss (O’Riley). The fair use doctrine protects researchers, content makers, and educators from copyright infringement, while it does not allow uploading and exchange of content via clouds.
To comply with the DMCA, every OSP, including cloud providers, must adopt and proclaim a service’s copyright policy based on the law’s principles. The policies usually identify requirements for a takedown notice (the information it should include). Every provider must nominate and register (in the US Copyright Office) an agent dealing with complaints filed by copyright holders. The notice-and-take-down process and repeat infringer policy must be applied and managed by service providers to secure safe harbor treatment. Websites that fail to address statutorily-compliant requests, have the actual knowledge of the third-party infringement, or benefit financially from it lose their immunity (Matteson 9). Cloud services are obliged to set a specific policy and system ready to process notices of copyright breach. As a result, the company should disable access or remove the disputed file noticing the accused account holder. The users reserve their right to a counter-notification during a 10-14 days period.
Nevertheless, the system currently lacks in-depth analysis of alleged infringement leading to privatized justice that automatically removes posted digital items. It does not have judicial oversight endangering freedom of speech and access to knowledge. An automated system monitors the uploaded files to identify possible text or video initially used in copyrighted materials. Then it notifies online services asking to stop infringement with the help of removal under DMCA. The person who uploaded the digital file can appeal to the provider if he/she is ready for possible litigation with the copyright holder. The ruling of the famous case Lenz vs. Universal Music revealed that rights holders often abuse their right to fill compliant by neglecting a burden to assess fair use. Still, thousands of automated removals occur every day, lacking accountability and the reason behind it.
Although the current DMCA obligations are quite limited, some companies voluntarily enhance their fight with piracy exceeding their legal responsibilities. For example, Google uses its Pirate algorithm to put websites that received many infringement notifications lower in the search results hiding it from users. Viacom vs. YouTube case encouraged the latter to introduce a Content ID system that continuously monitors the newly uploaded content for possible copyright infringement. If a right violation is found, the system automatically notifies the right holders, who can then monetize or share the content (Bar-Ziv and Elkin-Koren 352). In short, digital fingerprinting technology creates a reference (fingerprint) of original content and then compares it to newly uploaded works by other users.
This system can automatically process all takedown requests and provide copyright holders with effective monitoring, tracking, and monetizing content across all distribution channels. For instance, the proposed Digital Services Act will require the tech giants operating in the EU to adopt similar systems to remove illegal content (Amaro). New legislation tends to make local OSPs more responsible for the quality and origin of the uploaded materials. Under the new regulation, digital services are expected to report on their achievements regarding measures taken to eliminate copyright violations. The EU wants to increase accountability and transparency by requiring such firms as Google and Facebook to show their algorithms and tell how they work. This law proposal also considers the negative side of the over-removal measures and insists on adequate systems instead of individual decisions. In general, this initiative tends to make all digital players proactively monitor their websites for content infringement to avoid direct liability.
This initiative seems too radical for the US, where tech companies and users are highly concerned with free speech protections. Facebook, Google, and YouTube can continue their operations following similar reform. Nevertheless, it would be too costly for smaller players within the industry, as the content-fingerprinting system requires extensive investments. For instance, Rapidshare was forced to change the business model from exchanging information among anonymous users to personal (based on subscription) cloud-based file storage. The website lost its popularity and profit and dissolved in 2015.
Wikipedia, an open collaboration platform, generally complies with DMCA receiving requests for content takedown or alteration. Nevertheless, after a thorough investigation, the company usually rejects most requests referring to fair use. The online encyclopedia’s policy resides on the community’s high copyright standards, instead of a costly filtering system. There is no sense for the world’s biggest open platform to adopt such expensive technologies as content fingerprinting. It is peculiar though that Wikimedia Foundation received fewer takedown requests than Facebook and Google since 2013 (Binder). Only the court decisions sporadically make Wikipedia alter the already written text, as it recently occurred with the article on German history.
Hence, DMCA, especially Section 512, should be reformed as soon as possible. The bright-line rule seems to be ineffective regarding the fair use doctrine. The nuanced case-by-case approach would benefit both copyright holders and OSP users. It is not possible to abandon automated takedown request processing due to the high number of requests. Nevertheless, it is possible to notify users in advance before their materials are deleted. Content should be removed only if the accused user fails to provide an affidavit of non-infringement. In such cases, the burden of proof should be shifted to the claimant, reducing situations when fair use is abused by him/her. There is often not enough information on whether the complainant has enough rights and valid reasons to fill the takedown request (Matteson 16). A human should review Computer-generated infringement detection results to ensure that copyright violation took place, and there is no mistake. Only then a DMCA takedown notice should be issued and send to the alleged perpetrator. Despite the absence of instant removal, tech companies should preserve their right to safe harbor immunity.
To conclude, MegaUpload and YouTube’s cases proved that the safe harbor rule should not be further relaxed, as it still adequately works. A more strict approach, such as proposed in the EU, would also be detrimental for American OSPs. Both content makers and intermediaries should be of top priority as they provide value to others. Still, current legislation fails to provide users with practical tools to submit a counter-notice. Devices that automatically detect infringement should be further developed and ultimately checked by human beings. After enforcing the rights of posters, the anonymity of accounts should be abandoned. The main changes to DMCA should be made regarding providers’ obligation to comply with its regulations. Regular reporting to governmental oversight bodies on the policy’s results would increase the overall accountability. It would provide cloud providers an incentive to commit to the infringement policy in line with Dropbox, Google, and Facebook.
Works Cited
Amaro, Silvia. “The EU is About to Announce New Rules for Big Tech – and There’s Not Much They Can do About it.”CNBC, 2020. Web.
Bar-Ziv, Sharon, and Niva Elkin-Koren. “Behind the Scenes of Online Copyright Enforcement: Empirical Evidence on Notice & Takedown.” Connecticut Law Review, vol. 50, no. 2, 2018, pp. 339-385.
Binder, Matt. “Wikipedia has Only Granted one Takedown Request. Here it is”. Mashable, 2019. Web.
Matteson, Joel. “Unfair Misuse: How Section 512 of the DMCA Allows Abuse of the Copyright Fair Use Doctrine and How to Fix It.” Santa Clara High Tech Law Journal, vol. 35, no. 2, 2018, pp. 1-22.
O’Riley, Liam.“Storing Your Movies On the Cloud… Legally?” Medium, 2019. Web.