Notice and STAY DOWN - Draft Legislation Recommends Major Changes to the DMCA

On December 22, 2020, Senator Tillis (R-NC) and Chairman of the Senate Judiciary Subcommittee on Intellectual Property released draft legislation to reform the Digital Millennium Copyright Act (DMCA). Currently titled the Digital Copyright Act of 2021 (DCA) is an attempt to modernize U.S. Copyright law. According to a press release by Senator Tillis, the goals of the DCA are to 1) combat online piracy, 2) improve the exemptions available to users for circumventing technological protection measures, 3) increase attribution protections for authors, and 4) ensure that the copyright system provides sufficient incentives for creators while establishing guidance for Online Service Providers (OSP).

The attorneys at Danchuk Law, LLC have seen time and time again, that the DMCA is woefully inadequate and has failed, in just about every way, to keep up with the times. If a creator finds their work appearing on an OSP’s platform without their authorization, their only recourse is to submit a Notice and Takedown to the OSP. Typically, the OSP removes the infringing material without issue, but far too often, the infringing material will be reposted by the same nefarious user under a different account name or different listing identification. This forces content creators to constantly monitor for infringements, even after they already reported unlawful behavior. The DMCA simply could not envision the ease and scale at which infringements now take place across the world.

Another issue is seen with fraudulent DMCA counter notices. We have seen time and time again that infringers will file a DMCA Counter Notice to protect their own interest in using a OSP. This occurs because the ramifications to these individuals are not often realized. The only course of action for content creators is to file an expensive lawsuit within fourteen days of the counter notice, often in a jurisdiction far from their own. If they don’t the infringing user would be able to re-list the infringing material, without any form of punishment or payment to the content creator.

The DCA seeks to remedy these, and other common place issues in the digital copyright world. After reviewing the draft discussion legislation, there are several key changes to the DMCA:

1. The establishment of a copyright small claims tribunal to resolve disputes between copyright owners and counter-notice senders, as well as for pursuing enhanced penalties under section 512(f) of the DMCA, which allows for damages, costs, and expenses incurred in litigating against a user who makes a material misrepresentation on a Notice or Counter-Notice;

2. A decrease in the specificity requirements for content creators/copyright owners in identifying infringing material;

3. A removal of the Notice and Takedown system with a “Notice and Stay Down” system for complete and near complete works;

These three points are but a few of the changes proposed. Unfortunately, these changes are not guaranteed right now. The legislative process is complex and the text of the bill will certainly undergo numerous revisions. For now, it is another step in the right direction.

Senator Tillis is inviting all interested parties to submit redline edits and comments to this discussion draft by March 5th 2021. Comments should be submitted to Intellectual_Property@tillis.senate.gov.