DMCA flawed. Who knew?

Actually, those of us with the slightest clue knew. The Digital Millennium Copyright Act (DMCA) is a piece of legislation that was billed as improving the protection of the rights of copyright holders but popular opinion holds that it is more of a tool for media companies to beat up on anyone that annoys them and is deeply flawed. It appears that popular opinion was right on the money …

A report, due out in March 2006, by Jennifer M. Urban of the USC Gould School of Law and Laura Quilter of the University of California-Berkeley (Boalt Hall), that analyzes DMCA “take-down” notices (cease and desist letters from copyright holders) has been released in summary form.

The summary report, “Efficient Process or ‘Chilling Effects’? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act”, finds a “disturbing number of legal flaws” in take-down notices. Specifically:

• Thirty percent of notices demanded takedown for claims that presented an obvious question for a court (a clear fair use argument, complaints about uncopyrightable material, and the like);
• Notices to traditional ISP’s included a substantial number of demands to remove files from peer-to-peer networks (which are not actually covered under the takedown statute, and which an OSP can only honor by terminating the target’s Internet access entirely);
• One out of 11 included significant statutory flaws that render the notice unusable (for example, failing to adequately identify infringing material).

This report underlines the need for a major overhaul of the DMCA to make it just, meaningful, and workable.

For a backgrounder on the issues with the DMCA see the Electronic Frontier Foundation’s “Unintended Consequences: Five Years under the DMCA”.