DMCA Takedowns & The RIAA: Common Sense Intellectual Property Advocacy or The Height Of Hypocrisy

dmca DMCA Takedowns & The RIAA: Common Sense Intellectual Property Advocacy or The Height Of HypocrisyIn the U.S., the Digital Millennium Copyright Act has been the law of the land since 2000. Like many Internet laws, the DMCA has its supports and detractors. Those in favor of the act see it as an effective way to protect intellectual property that finds its way onto the Web; anti-DMCA advocates feel the statute is an out-dated process that does little more than cause confusion and provide a way for market adversaries to unfairly “knock-off” a competitor.

Since the DMCA is currently the most viable way for copyright holders to legally combat Internet infringement, entertainment associations and media conglomerates, like the Recording Industry of America, British Recording Industry, Motion Picture Association of America and NBC Universal, use the statute to aggressively combat piracy. But many think these organizations are nothing more than well-financed copyright trolls who abuse the DMCA takedown process and unfairly expect special treatment.

While both sides’ arguments are based in legal precedence, it may be time for governing officials to re-examine the current state of online piracy. Because at the end of the day, the question politicians should be asking is whether or not the effort and money spent on drafting, promoting and enforcing digital copyright statutes – which is often based on biased propaganda – is right for the United States – a country drowning in debt that could use a healthy dose of innovation injection.

Before We Begin, Here’s A Little Background on the DMCA Takedown Process

While nuanced, the purpose of DMCA legislation is simple: the bill provides a way for copyright and trademark holders to report online intellectual property infringement with the goal of having the material exorcised from the Internet.

How it usually works is that a lawyer first files a DMCA takedown request on behalf of an individual or business. The notice usually includes specific legalese requesting that a piece of protected material be removed from the Internet. Once an entity is in possession of a DMCA takedown notice, by law, they are required to notify the alleged copyright infringer and give them the opportunity to file a counter-notice.

If the DMCA takedown notice is sent to a search engine like Google, and the original DMCA takedown request goes uncontested, the search engine usually removes the link to the offending material from their index. Historically, it used to take several weeks to see results. According to recent reports, however, some DMCA takedown requests are handled within 11 hours — a questionable stat considering the act does contain provisions for challenge responses.

While the DMCA process is often effective, if you believe a report published by Google, nearly 57% of DMCA takedown notices are initiated by business competitors, and 37% are bogus.

Google Releases DMCA Takedown Statistics for May

As part of their transparency initiative, Google publishes their monthly DMCA takedown stats for all to see – and the numbers are staggering. Catch this:

Google processes nearly 1.5 million a month! To put things in perspective, the entirety of 2009 saw a total of 1.2 million DMCA takedowns.

According to Google’s stats, Filestube.com – a Polish file sharing company – received the most number of DMCA takedown requests. Extratorrent.com came in second. Which companies are requesting the most takedowns? Those honors go to Marketlly, NBC Universal and the British Recording Industry (the UK equivalent to the RIAA).

Fun Fact: in May 2012, the total number of DMCA takedown requests filed by NBC Universal and the British Recording Industry came close to half a million for the month.

RIAA Responds To Google’s DMCA Takedown Data With Whiny Missive

The Recording Industry Association of America is a major voice in the “stop piracy at all costs” camp. As the lobbying arm for major recording labels, it seems the RIAA’s primary goal is to punish pirates and act as an online infringement-busting battalion.

One of their favorite tools of combat is eye-popping statistics. Recent RIAA propaganda asserts that $58 billion dollars and 373,000 jobs have been lost to piracy. Now, when the average person or politician hears those numbers, it’s almost impossible not to fall down on the side of piracy-busters. But as Rob Reid points out, those numbers are, at best, bombastic, and at worse, flat out impossible.

Despite the above logic, the RIAA contends that Google isn’t doing enough to terminate all link-removal requests. As such, the association wants to be able to run as many search-and-destroy bots as they want on Google’s servers, which theoretically mark and disable all links to “copyrighted” material, automatically. The problem is that bots aren’t perfect — so what happens if the bots mistakenly take down perfectly legal content?

Why The RIAA’s Special Treatment Requests Would Be A Gigantic Legal Blunder

You may still be thinking: “Stealing is stealing; why shouldn’t the RIAA be given the opportunity to develop permanent methods to protect their members’ online intellectual property?” It’s a fair thought, but the nature of the law is gray, rendering such black and white thinking dangerous when legally analyzing the DMCA.

Take Edwyn Collins, for example. If you can name all the Keaton children in ten seconds, then there’s a good chance you’ll remember Edwyn – the “A Girl Like You” one-hit-wonder singer. Being that the song is now 15 years-old, and all the licensing agreements have run their course, Collins thought he’d put the song up on his MySpace page.

Warner Music (his old label), however, was having none of that; the recording company sent in a DMCA request to MySpace, which was executed almost immediately. When Collins protested and tried to explain to MySpace that Warner Music no longer held the rights, his pleas were ignored.

To make a long story short, it took many months – and many emails containing an “Orwellian MySpace copyright re-education page” — for the musician to prove he was the rightful copyright holder of the song. While the issue did finally get cleared up, Collins can’t help pointing out that his song still appears on many a compilation CD, and labels are profiting off it, even though they don’t have the rights. As Grace Maxwell – Collins’ wife and manager – said, “[We are] aware of who the biggest bootleggers are, it’s not the filesharers.” She then went on to claim that “A Girl Like You” is illegally sold “all over the Internet…by all sorts of respectable major labels whose license to sell it ran out years ago and who do not account to him.”

David and Goliath copyright battles aren’t the only legal pitfall that may arise if organizations like the RIAA are granted unfettered access to troll the Net for alleged copyright infringements. Most forget about the DMCA’s perjury penalty provisions.

From the Digital Millennium Copyright Act:

A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

In laymen’s speak that translates to: if you file an erroneous DMCA takedown request, expect to be charged with perjury. In the United States, perjury comes with a hefty price tag. Convicted prevaricators can be fined up to $10,000 per incident or imprisoned for up to 5 years.

So let’s review. Automated copyright-sniffing bots are highly fallible and the Digital Millennium Copyright Act contains perjury penalties for falsely reported claims. Therefore, logic demands that the RIAA should think twice about launching proprietary DMCA-inspired content deactivators. If they don’t, the lobbying giant may end up paying more in damages than they actually lose to piracy.

Protecting one’s intellectual property rights is essential; but new communication and sharing models are an opportunity for artists and intellects to explore new distribution and promotional methods. Because when you examine the numbers, it’s obvious that “piracy” – in many cases – actually leads to better sales. Moreover, with even Broadway attendance up, it’s time for lobbying groups like the RIAA to stop publishing inaccurate, eye-popping loss numbers that give the impression that the music and movie industry are suffering more than they are.

Bottom line: responsible online intellectual property laws are needed; using Internet copyright legislation to clog up the courts and threaten innovative sharing and communication platforms, however, should have no place in 21st century litigation.