Name: What Really Does and Doesn’t Work for Fair Use in the DMCA
Brand: eff.org
SKU: eff-org-219
Availability: OnlineOnly

critic

What Really Does and Doesn’t Work for Fair Use in the DMCA

preview

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItOn July 28, the Senate Committee on the Judiciary held another in its year-long series of hearings on the Digital Millennium Copyright Act (DMCA). The topic of this hearing was “”We’re glad Congress is asking the question. Without fair use, much of our common culture would be inaccessible, cordoned off by copyright. Fair use creates breathing space for innovation and new creativity by allowing us to re-use and comment on existing works. As Sherwin Siy, lead public policy manager for the Wikimedia Foundation, said in his testimony: “That fair uses aren’t rare exceptions to the exclusive rights of copyright law but a pervasive, constantly operating aspect of the law. Fair use not only promotes journalism, criticism, and education, it also ensures that our everyday activities aren’t constantly infringing copyrights. Especially now that so much of our lives are conducted on camera and online.”Unfortunately, the answer to Congress’s question is: not enough. The DMCA, in particular, by design and as interpreted, doesn’t do enough to protect online fair uses. This is the case in both Section 1201 of the DMCA—the “anti-circumvention” provision which bans interference on technological restrictions on copyrighted works—and Section 512—the provision which immunizes platforms from liability for copyright infringement by their users so long as certain conditions are met.The DMCA was meant to be a grand bargain, balancing the needs of tech companies, rightsholders, and users. Section 512 embodies a carefully crafted system that, when properly deployed, gives service providers protection from liability, copyright owners tools to police infringement, and users the ability to challenge the improper use of those tools. Without Section 512, the risk of crippling liability for the acts of users would have prevented the emergence of most of the social media outlets we use today.But Congress knew that Section 512’s powerful incentives could result in lawful material being censored from the Internet, without prior judicial scrutiny, much less advance notice to the person who posted the material, or an opportunity to contest the removal. For example, users often making fair use of copyrighted works in all kinds of online expression. That use is authorized by law, as part of copyright’s “built-in First Amendment accommodations.” Nonetheless, it is often targeted for takedown under the DMCA.&nbsp;For Section 512, ns are supposed to be located in sections 512(g) and 512(f). In practice, neither of these sections have worked quite as intended.Section 512(g) lays out the requirements for counternotifications. In theory, if a takedown is issued against a work making fair use, then the target can send a counternotice to get the work restored. The counternotice contains personal information of the creator and an agreement to be subject to a court case. If the person or organization doesn’t respond to the counternotice with a legal action within two weeks, the work goes back up. In practice, , even when the original takedown was flawed.512(f) was supposed to deter takedowns targeting lawful uses by giving those harmed the ability to hold senders accountable. Once again, in practice, this has done little to actually .Columbia Law Professor Jane C. Ginsburg agreed, saying that these parts of 512 “may not always have worked out as intended.” She highlighted that automated takedown notice systems don’t take fair use into account and that there are relatively few counternotices. She allowed that “fear or ignorance” would cause users not to take advantage of counternotices, a point backed up by cases of and the of the counternotices.Evidence of how users avoid the process was given by Rick Beato, a musician who also has a popular YouTube channel that teaches music theory. He noted that he has made 750 YouTube videos, of which 254 have been demonetized and 43 have been blocked or taken down. Beato noted that he’s never disputed anything – it’s too much trouble.Several witnesses urged the creation of some sort of “alternative dispute resolution” to make taking down and restoring content easier. We disagree. Section 512 already makes takedowns far too easy. The experience of the last 22 years shows just how much of the fundamental right to freedom of expression is harmed by extrajudicial systems like the DMCA. The answer to the DMCA’s failures cannot be .As for the European model, there is no way to square the Copyright Directive with fair use. The European Union’s Copyright Directive effectively requires companies to ensure that nothing is ever posted on their platforms that might be infringing. That incentivizes them to over-remove, rather than take fair use into account. And to handle that need, filters become necessary. And so it creates a rule requiring online service providers to send everything we post to the Internet to black-box machine learning filters that will block anything that the filters classify as "copyright infringement." And, as Beato testified to in the hearing, to distinguish even obvious fair uses. For example, his educational videos have been taken down and demonetized because of a filter. And he is not alone.Witnesses also suggested that fair use has expanded too far. This is a reassertion of the and it assumes that fair use is set in stone. In fact, fair use, which is flexible by design, is merely keeping up with the changes in the online landscape and protecting users’ rights.As witness Joseph Gratz put it:Nobody likes to have their word, or their work, or their music used in ways that they can’t control. But that is exactly what fair use protects. And that is exactly what the First Amendment protects. Whether or not the copyright holder likes the use, and indeed, even more so where the copyright holder does not like the use, fair use is needed to make sure that free expression can thrive.On balance, Section 512 supports a great deal of online expression despite its flaws. The same cannot be said for Section 1201.&nbsp; Section 1201 makes it illegal to circumvent a technological protection on a copyrighted work, even if you are doing so for an otherwise lawful reason.Sound confusing? It is. Thanks to fair use, you have a legal right to use copyrighted material without permission or payment. But thanks to Section 1201, you do not have the right to break any digital locks that might prevent you from engaging in that fair use. And this, in turn, has had a host of unintended consequences, such as .The only way to be safe under the law is to get an exemption from the Copyright Office, which grants exemptions to classes of uses every three years. And even if your use is covered by an exemption, that exemption must be continually renewed. In other words, you have to participate in an unconstitutional speech licensing regime, seeking permission from the Copyright Office to exercise your speech rights.Nevertheless, Christopher Mohr, the Vice President for Intellectual Property and General Counsel of the Software and Information Industry Association, called Section 1201 a success because it supposedly prevented the “proliferation of piracy tools in big box stores.” And Ginsburg pointed to the triennial exemption process as a success. She said it “responds effectively to the essential challenge” of balancing the need for controls with the rights of users.That’s one way of looking at it. Another is that even if you have an exemption allowing you access to material you have a Constitutional right to use, you can’t have someone with the technological know-how to do it for you and no one is supposed to provide you a tool to do it yourself, either. You have to do it all on your own.So if you are, for example, one of the , you now have an exemption allowing you to do that. But you still can’t go to an independent repair store to get an expert to let you in. You can’t use a premade tool to help you get in. This is a manifestly absurd result.We’re glad Congress is asking questions about fair use under the DMCA. We wish there were better answers.Share ItSan Francisco – The Electronic Frontier Foundation (EFF) is joining forces with the law firm of Durie Tangri to defend the Internet Archive against a lawsuit that threatens their Controlled Digital Lending (CDL) program, which helps people all over the world check out digital copies of books owned by the...Basecamp’s new paid email service, HEY, has been making headlines recently in a very public fight with Apple over their App Store terms of service. Just as the service was launching, the HEY developers found the new release of the app—which included important security fixes—was over a...Paris, France—In a victory for the free speech rights of French citizens, France’s highest court today struck down core provisions of a bill meant to curb hate speech, holding they would unconstitutionally sweep up legal speech.The decision comes as some , in seeking to stop hateful...As the EU is gearing up for a major reform of key Internet regulation, we are introducing the principles that will guide our policy work surrounding the Digital Services Act. In this post, we take a closer look at what we mean when we talk about interoperability obligations, and at...Medical providers face countless challenges in responding to the COVID pandemic, and copyright shouldn’t have to be one of them. Hundreds of volunteers came together to create the posted to the repair information website iFixit, providing medical practitioners and technicians an easy-to-use, annotated, and indexed...In the midst of and , the Senate Judiciary Committee continued on with the . It is an odd moment to be considering whether or not the notice-and-takedown system laid out by Section 512 of the Digital Millennium Copyright Act...This is one of a series of blog posts about President Trump's May 28 Executive Order. Other posts can be found , and .The inaptly named (EO) seeks to insert the federal government into private Internet...Outside of the beltway, people all over the United States are taking to the streets to demand fundamental change. In the halls of Congress and the White House, however, many people seem to think the biggest thing that needs to be restructured is the Internet. Last week, the presidentIn the Internet age, copyright decisions can have enormous consequences for all kinds of activities, because almost everything we do on the Internet involves making copies. And when courts make a mistake, they may create all sorts of unexpected legal risks. As we explained to the Eleventh Circuit yesterday, a...There's a dirty secret in the incredible growth of Silicon Valley's tech giants: it's a cheat. Historically, US antitrust regulators would be deeply concerned about mergers with major competitors in concentrated markets ("mergers to monopoly") and acquisitions of small companies to neutralize future competitive threats ("catch and kill"). And while...Share It

Email updates on news, actions,and events in your area.DEEPLINKS BLOGShare ItOn July 28, the Senate Committee on the Judiciary held another in its year-long series of hearings on the Digital Millennium Copyright Act (DMCA). The topic of this hearing was “”We’re glad Congress is asking the question. Without fair use, much of our common culture would be inaccessible, cordoned off by copyright. Fair use creates breathing space for innovation and new creativity by allowing us to re-use and comment on existing works. As Sherwin Siy, lead public policy manager for the Wikimedia Foundation, said...

public

Katharine Trendacosta

Corynne McSherry

We're the Electronic Frontier Foundation. We defend your civil liberties in a digital world.

What Really Does and Doesn’t Work for Fair Use in the DMCA

No article scores yet.

CRITIC REVIEWS

PUBLIC REVIEWS