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Fixing the DMCA
Jul. 4th, 2017 06:25 pmSo as I am reminded of every so often, I see the DMCA being abused. Just taking items down for even a short while and marking up an account, maybe even causing it's removal, is disruptive if the report doesn't match the actual item it's reporting down. Remember, you can DMCA any Youtube video down, and it goes down... until the counter-claim is sent. There seems to be two groups that are doing this: big corporations and small fraudsters.
The issue though is how to fix it such that it makes it expensive to abuse the DMCA... and yet let small frys like independent artists with a legit complaint through. That is the big issue that I'm racking my head against.
My main idea... would only truly work in the big corp situation where DMCA complaints are robo-filed. The solution there is that past a "velocity threshold" your complaints must be followed up with a written and signed-by-a-lawyer notice that is faxed or mailed to Youtube within 5 business days. The notice must state that the writer is the owner of the copyrighted work that the complaint is for, and has been reviewed by a lawyer to verify it is a violation. This will slow down if not stop faulty DMCA complaints.
But what about the small fraudsters, and the indie artists with legitimate complaints?
First, the context of the work should be taken into account. Youtube's parent, Alphabet (aka Google), has the means to detect if the work in question is being used in a review or commentary. Others most likely will need human review. But action or inaction taken as part of a DMCA investigation should never be considered "editorial" or "curation" and should always fall under the "safe harbor" provision.
That said, a reputation system could help here. Should the fraudster be detected with a high amount of illegitimate complaints, the person should be subjected to require the paperwork, just as in the case of the high-velocity complaint system.
The indie artist who has a high reputation in this regard would still be allowed to issue regular (aka current) DMCA notices. Should the artist be found truly to be wronged on a massive scale, requiring bulk take-downs, then a human on the provider's end will be required.
I doubt this is perfect, but it definitely shaves off a ton of issues with the DMCA.
The issue though is how to fix it such that it makes it expensive to abuse the DMCA... and yet let small frys like independent artists with a legit complaint through. That is the big issue that I'm racking my head against.
My main idea... would only truly work in the big corp situation where DMCA complaints are robo-filed. The solution there is that past a "velocity threshold" your complaints must be followed up with a written and signed-by-a-lawyer notice that is faxed or mailed to Youtube within 5 business days. The notice must state that the writer is the owner of the copyrighted work that the complaint is for, and has been reviewed by a lawyer to verify it is a violation. This will slow down if not stop faulty DMCA complaints.
But what about the small fraudsters, and the indie artists with legitimate complaints?
First, the context of the work should be taken into account. Youtube's parent, Alphabet (aka Google), has the means to detect if the work in question is being used in a review or commentary. Others most likely will need human review. But action or inaction taken as part of a DMCA investigation should never be considered "editorial" or "curation" and should always fall under the "safe harbor" provision.
That said, a reputation system could help here. Should the fraudster be detected with a high amount of illegitimate complaints, the person should be subjected to require the paperwork, just as in the case of the high-velocity complaint system.
The indie artist who has a high reputation in this regard would still be allowed to issue regular (aka current) DMCA notices. Should the artist be found truly to be wronged on a massive scale, requiring bulk take-downs, then a human on the provider's end will be required.
I doubt this is perfect, but it definitely shaves off a ton of issues with the DMCA.
