A number of folks on both sides of the SOPA/PIPA debates have noted the seeming “irony” that the anti-SOPA/PIPA folks keep pointing to the DMCA and complaining about how SOPA/PIPA will undermine the DMCA. After all, many in the tech industry were quite worried about the DMCA when it first showed up and have continued to complain about it for years. Supporters of SOPA/PIPA point this out mockingly, as if to suggest that the anti-SOPA/PIPA folks are somehow being hypocritical (or doing a “sky is falling” routine). The anti-SOPA/PIPA folks point out how unfortunate it is that entertainment industry lobbyists are pushing so hard on the lever that we’re forced to “defend” the DMCA.
Of course, the reality is a little more nuanced, and not nearly so black and white. When the anti-SOPA/PIPA folks “defend the DMCA,” they’re actually just defending one small part of it: the safe harbors. Those safe harbors were only put into the DMCA after lots of folks raised hell about the initial proposals, which would have included all of the draconian parts of the DMCA… without those important safe harbors. The safe harbors were added to try to make sure that the proper party (the folks actually doing the infringing) were blamed for infringement, rather than they tools they used. SOPA/PIPA supporters who mock people for defending the DMCA now are being disingenuous. If those people hadn’t complained, it’s likely those safe harbors wouldn’t have been included. But like the similar (if different in important ways) safe harbors in Section 230 of the CDA, it’s perfectly reasonable to be in favor of the safe harbors but against many other parts of the bill.
Most of us anti-SOPA/PIPA folks agree that there remain huge problems with the rest of the DMCA. Derrick Harris, over at GigaOm, has written an article pointing this out, and asking why no one’s trying to fix the broken parts of the DMCA while we’re pushing back on SOPA. He highlights some of the problems with the notice-and-takedown provisions, for example:
In 2006, two law professors published a report highlighting the scope of the problem at that time. Although they acknowledged the imperfection of their data set, the results are were pretty startling nonetheless: 41 percent of all studied claims involving content hosted on Google targeted complainants’ competitors, and “a substantial portion” of the claims contained serious legal flaws ranging from the veracity of the claim to non-compliance with DMCA requirements to not even making copyright-based claims.
In 2009, Google noted when challenging a proposed New Zealand copyright law that 57 percent of its takedown requests were from businesses targeting their competitors, while 37 percent weren’t valid copyright claims at all.
Presumably, though, because service providers — even the mighty Google — aren’t really in the position to examine every claim, and even if they spot potential defenses (e.g., fair use), there isn’t much incentive to ignore requests. This creates even deeper problems for copyright law. Commenting in 2006 on whether it’s legal to link to allegedly infringing material, EFF attorney Fred von Lohmann noted, “That’s one of the problems with the DMCA safe harbors — because OSPs have such a strong incentive to simply comply with takedown notices, courts get fewer chances to decide the underlying copyright questions, like whether linking to stuff on YouTube is infringing. So things stay murky.”
Indeed. The fact that things get taken down as soon as the notice is sent raises a whole host of issues — including First Amendment questions. However, Harris’s question about why no one’s looking to fix the DMCA is pretty easy to answer, if you’ve followed the debate over the past decade. Early on, there were attempts to fix many of the problems of the DMCA, with Reps. Boucher and Lofgren often trying to fix things… and getting nowhere. Boucher is now out of office, so that was one fewer voice on that subject. But even while he was still in office, he stopped pushing to fix the DMCA.
And the key reason why is going right back to what we started this article discussing. The innovation industry knows how important the safe harbors in the DMCA are… and they realize that if they open up the DMCA for any kind of adjustment, Hollywood will go bonkers trying to kill the safe harbors (which is also why they’re trying to do an end run around all of that with SOPA — which will kill off many of the DMCA’s safe harbors). That’s because while many of us realize that the safe harbors are the only good part of the DMCA, the big entertainment industry folks think exactly the opposite, and continue to argue that the safe harbors are pure evil. This is folly, but it’s reached a kind of stalemate, where neither side is willing to go directly back into the DMCA, for fear that the others will muck with the parts they like. It’s a bit of a standoff situation, such that neither side is happy with the overall DMCA, but no one wants to fix the problems, because there’s a decent likelihood that lobbying from the other side will make the end result worse.