Take Notice: Senate Intellectual Property Subcommittee Holds Hearings on the DMCA’s Notice-And-Takedown System

On Tuesday, June 2, 2020, the Senate Judiciary Committee’s Subcommittee on Intellectual Property held hearings on the Digital Millennium Copyright Act (DMCA) safe harbors from liability for copyright infringement, and more specifically the DMCA’s notice-and-takedown system.  The hearings, titled “Is the DMCA's Notice-and-Takedown System Working in the 21st Century?”, are part of a series of hearings on the DMCA that the Subcommittee has planned throughout 2020.  The June 2, 2020 hearings focused on the notice-and-takedown system as it applies to the Section 512(c) safe harbor, which covers sites that host content posted by users, and the Section 512(d) safe harbor, which covers search engines.  The Subcommittee heard remotely from two panels that brought together small content creators such as singers, songwriters and authors, and representatives of large and small tech companies and tech startups. 

The panelists represented both sides of the ongoing debate over the notice-and-takedown system.  Content creators expressed their view that the notice-and-takedown system has failed to address massive online piracy, resulting in an endless “whack-a-mole” problem, where infringing content that is removed pursuant to a takedown notice immediately reappears.  They stressed that small content creators as a practical matter are unable to send an endless series of takedown notices, and that rampant infringement online challenges their ability to make a living.  The content creators also stressed their belief that the notice-and-takedown system needs to be reworked into a “notice-and-staydown” system in order to address the whack-a-mole problem, or needs to be entirely rewritten. 

Representatives of tech companies expressed their view that the notice-and takedown system is working well as originally intended and should not be changed, and that progress in addressing online piracy should come through cooperation between the creative and technology sectors in developing voluntary initiatives rather than through legislation.  They stressed their view that only content creators can tell whether an online work is infringing and should be taken down or whether it is properly licensed and should stay up.  They also stressed that technology companies are inundated with hundreds of millions of takedown notices, which technology companies must deal with on a daily basis, and that some of these notices are fraudulent.  The tech company representatives also noted that the vast majority of online infringement comes from websites located abroad, and that reforming or rewriting the U.S. notice-and-takedown system is not going to address such overseas piracy.   

From the tenor of comments and questions from the Subcommittee members present for the hearings, it appears that at least some members on both sides of the aisle believe that the DMCA’s notice-and-takedown-system, first established in 1998 in the “internet’s infancy,” is “outdated” and “failing badly” and needs to be either substantially reworked or replaced with an “entirely new system.”  The Subcommittee members present appeared to largely accept content creators’ criticisms of the notice-and-takedown system.  They also cited the U.S. Copyright Office’s criticisms of the notice-and-takedown system in the Office’s May 2020 report on the DMCA.  Indeed, just last week, the Subcommittee’s Chairman, Senator Thom Tillis, and Senator Patrick Leahy asked the U.S. Copyright Office, in light of its recent DMCA report, to provide detailed recommendations on how to reform the notice-and-takedown system, and to recommend a replacement “if Congress were starting from scratch.” 

It remains to be seen what if any actions the Senate’s IP Subcommittee takes on the notice-and-takedown system and how such action is received by the full Judiciary Committee and the Senate. 

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