User:RampLocal/Online Copyright Infringement Liability Limitation Act

Criticism[edit]

There are three main areas of criticism of the OCILLA provision of the DMCA: improper removal of content, ineffective counter-notice procedure, and the rise of Web2.0 and new technologies that call into question the equity and effectiveness of the safe harbor provision. In 2020 the United States Copyright Office published a study examining the impact of Section 512 of the DMCA. The study found that the safe harbor provision is unbalanced and not in line with what the original lawmakers intended with the passing of the DMCA in 1998.

Firstly, it has been said that it is far too easy for copyright holders to order take-downs of allegedly infringing content when the content may not in fact be infringing on copyright.

Secondly, it is less risky for a copyright holder to issue a take-down notice for copyright infringement than it is for the alleged infringer to apply for a counter-notice, which requires the defendant to testify, under penalty of perjury, that they have good-faith belief that the penalty was wrongfully removed. This can be a lengthy, expensive process that doesn't guarantee the content will not be flagged again as infringing content.

Furthermore, Web 2.0 technologies and platforms have called into question the effectiveness of the DMCA and the OCILLA provision to adequately curtail instances of copyright infringement. While the burden of policing the internet for infringing content is placed on the rightsholders, companies that host and profit from copyrighted content are, in turn, obligated to cooperate with rightsholders when they find infringing content, but with the advent of Web 2.0 platforms (i.e. YouTube, Facebook) that host and profit from millions of user-generated content, it has been noted that this burden on the rightsholder is unfair and that more should be done by the ISPs to curtail copyright infringement.

Improper removal of content[edit]

There is evidence that ISPs tend to quickly take down allegedly infringing content on request by copyright holders in situations where the content is actually non-infringing and should be preserved, sometimes known as aggressive copyright claims. This may be because ISPs have much more to lose by forfeiting their safe harbor than by angering a user whose content is improperly removed. While the courts appear willing to punish copyright holders who file wrongful claims, some experts say it's troubling how easy it is for the DMCA to be invoked for false claims.

Notices can be flawed in several ways. Many fail to follow the requirements of the statute. Others ask for material to be taken down for reasons such as trademark infringement and defamation that are unrelated to copyright infringement.

Ineffective counter-notice procedure[edit]

There is evidence of problems with the counter-notice procedure, arising from its complexity and also because ISPs are not required to inform users of its existence.

This may result from the inherent imbalance in prerequisites for the original complaint and the counter-notice. To get content removed, a copyright holder need only claim a good-faith belief that neither he nor the law has authorized the use. Copyright holders are not subject to penalties for perjury. In contrast, to get access to content re-enabled, the uploader of the allegedly infringed content must claim a good-faith belief under penalty of perjury that the material was mistakenly taken down. This allows for copyright holders to send out take-down notices without incurring much liability; to get the content back up, the recipients need to expend considerably more resources. Section 512(f) makes the sender of an invalid claim liable for the damages resulting from the content's improper removal, including legal fees, but that remedy is not always practical.

Furthermore, ISP's tend to remove allegedly offending material immediately, while there is a 10- to 14-day delay before the ISP re-enables access in response to a counter-notice. For example, if a website advertised an upcoming labor protest outside BlameCo, BlameCo could send a DMCA notice to the site's ISP alleging copyright infringement of their name or logo a week before the protest. The site would then be disabled; even if the site's owners immediately filed a counter-notice, access would not be re-enabled until after the protest, too late to be useful.

ISP's may also disregard counter-notices. Section 512(g) of the DMCA shields an ISP from liability to its customer for a DMCA takedown, if the ISP restores removed content following a counter-notice. In practice, however, an ISP may disregard the counter-notice, and instead rely on its own terms of service to shield itself from liability to its customer. For example, since April 2013, YouTube refuses to restore some counter-noticed content, citing an agreement YouTube made with third-party music content owners.

Additionally, there is no public record of takedown requests and counter-notices. This prevents the public from seeing how the process is used. (Chilling Effects has tried to make up for this shortcoming, but, so far, few OSPs besides Google submit their takedown notices.)

Web 2.0 and new technologies[edit]

There have been recent claims that the DMCA-embedded concepts of direct financial benefit, interference with standard technical measures, and the legislative red flag test for identifying infringing material are significantly challenged by the explosion of user-generated content unleashed by Web 2.0 technologies.

Web 2.0 has enhanced the ease of access to copyrighted works by introducing new and alternative electronic platforms in which information can be shared publicly. Recognizing the challenge that Web 2.0 presents, many OSPs have implemented programs that automatically scan every upload for potential infringing activity. Web.20's platforms are significantly altered by the content generated by millions users, this creates extreme difficulty for the OSPs to monitor their own platforms for infringing content.