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Internet Policy Task Force Looking to Alter Notice and Takedown Procedures

On Thursday, March 20, technology companies and copyright holders met to discuss the Digital Millennium Copyright Act (DMCA) and the notice and takedown process used by copyright holders to push Internet platforms to remove infringing content from their sites and databases. The meeting was facilitated by the U.S. Department of Commerce’s Patent and Trademark Office and the National Telecommunications Information Administration (NTIA).

In July of 2013, the Department of Commerce's Internet Policy Task Force published a green paper entitled, Copyright Policy, Creativity, and Innovation in the Digital Economy. The paper identified several topics on which the Department should focus its attention, including improving the operation of the DMCA's notice and takedown system.

In the paper, the Task Force called for improving the efficiency of the system and minimizing inaccurate notices and abuse of the process. The green paper explained that right holders feel that the process of locating and flagging copyrighted content is nearly impossible under current circumstances. Many small- and medium-sized enterprises don't have the resources to engage in the constant monitoring and notification process required by the DMCA. The DMCA also only requires content be taken down from the specific location identified, allowing the infringing content to be immediately uploaded again somewhere else on the same site. Right holders are calling for notice and takedowns to mean the ISPs must keep that content off their site, which would require the Internet Service Providers (ISPs) use technology to flag the content and then continuously block it. Technical and legal challenges would inevitably arise from mandating ISPs to acquire such technology. The Task Force therefore recommended voluntary cooperation as a more flexible way to address the issue.

The green paper also addressed ISPs’ concerns over the volume of takedown requests. This volume could result from content being immediately reposted once removed (as mentioned above) or the use of automated monitoring systems by right holders to continuously scan for infringing content. The paper noted that abuses of the notice and takedown system could be a factor, although a less significant one, in high DMCA notice volume as well.

The Task Force called for multi-stakeholder dialogue to find best practices for identifying infringing material, sending notices, taking down the content, and ensuring the content could not reappear on the same site. The first meeting, as mentioned above, was held in Alexandria, Virginia, on March 20. The second is scheduled for May 8 in Northern California. For this meeting, stakeholders are tasked with trying to find efficiencies that can be achieved through standardization of notices, their delivery, and processing.

The House Judiciary Committee has also been investigating this issue. On March 13, the Subcommittee held a hearing to discuss the “whack-a-mole” process right holders have experienced as well as the increasing volume of requests ISPs are receiving. While repeat offenses were a common focus of the witnesses, several pointed out the decreasing administrative costs of takedown notices due to automated takedown processes and the balance achieved between protecting rights of content owners and allowing for the growth of the Internet

EDUCAUSE will continue to monitor Commerce Department efforts to gather stakeholder input and potentially revise DMCA notice-and-takedown requirements. 

Comments

I see several problems with their proposed solution

We have a policy that we do not look at content on our network - we are not going to change our policy so that we can observe when someone is sharring the same material as someone else.  

Additionally, encrypted file sharring will make this difficult, if not impossible, to do - we use TOR for legitimate educational purposes, so we are not going to block P2P on our network.

We have a fully automated DMCA process in place, and do not have any problem processing complaints, provided that they are fully compliant with the DMCA

Joel Rosenblatt

Director, Computer & Network security, Columbia University

As with everything in technology, there is always a new way around it.  You have to make the effort, but you also have to know that people will find a work around just as fast.

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