Reforming the DMCA

We at Automattic are firm believers in legitimate copyright protection. We are also vigilant about shielding our users from abuse, particularly in cases in which the abuse aims to censor legitimate criticism or ignores fair use of copyrighted materials. As an online service provider, balancing these diverse interests and rights is important to us and requires careful review and diligence. Section 512 of the DMCA was enacted to provide online service providers like Automattic with guidance on handling these issues; however, in the almost 30 years since the law was passed, the Internet landscape has evolved significantly, leaving deficiencies in the safeguards of Section 512.

To help remedy these deficiencies, the US Copyright Office started an initiative last year to study and propose reforms to the DMCA. We were grateful to have an opportunity to submit our feedback and to highlight the issues we commonly experience with the current system—namely, abusive DMCA notices, a deficient counter-notice process, and the impact of copyright bots on fair use. As a follow up, the Copyright Office recently solicited empirical data and analyses to help shed light on the effectiveness and impact of the current Section 512 safe harbors – and Automattic was happy to share the data we’ve gathered on the subject in recent years.

Some key findings that we highlighted:

  • With three years of data relating to the copyright infringement notices we receive, it was particularly striking to see how consistent the figures are year after year on subjects such as counter notices, fair use, and procedural mistakes that we reject.
  • 10% of the notices of claimed infringement we receive are directed at clear fair uses or uncopyrightable content, or contain clear misrepresentations regarding copyright ownership. If our experience is representative of other online service providers in the industry, the overall volume of abuse is significant.
  • The number of counter-notices we receive is remarkably low, which we believe is not the result of a correspondingly low number of false or mistaken assertions of infringement, but instead results from the concern that sending a counter notification is likely to result in costly litigation, even if that litigation would ultimately turn out to hold that no infringement had occurred.
  • More than a third of the notices we receive simply do not contain the required information—they either include incorrect information, leave out pertinent information, or fail to provide a clear description of the unauthorized material.
  • Automattic has spent a significant amount on legal fees in bringing lawsuits against blatant violators of the DMCA, but has been unable to recover these costs or collect on judgments in our favor because the remedies available under the law are often illusory even in cases of clear abuse.

Our data shows a continuing issue with the current DMCA system, which allows abuse to go unfettered due to a lack of real statutory consequences. Internet users need a more effective remedy than the counter-notice to adequately safeguard their legitimate content. Stricter form-of-notice requirements, opportunity for targets to respond before content is removed, and statutory damages for abusive notices are some possible solutions that would provide increased protection for Internet users.

We are hopeful that our feedback and data will help guide reforms toward creating a more equitable environment for Internet users. We look forward to seeing how the law evolves and will continue to work hard to make the DMCA process as fair and balanced as possible.  

For more information about the data we collect, you can view our transparency reports related to section 512 here.

You can read our full comments here: Section 512 Comments