Why takedown mechanisms will always make some authors unhappy

I originally posted this as a comment on Russell's SFWA/DMCA posting, but it grew to the point where it deserves to be an entry in it's own right.

The Science Fiction and Fantasy Writers of America DMCA takedown issue has been very interesting. I found very useful commentary on Cory Doctorow's blog and on Jerry Pournelle's website.

As with anything like this, it's very hard to figure out what the facts really are. Whether the site in question is a Napster for books, how many works were wrongly taken down, etc. On the other hand, it's very useful for understanding people's opinions of the DMCA takedown mechanism.

It's pretty clear that there are two groups of authors involved - those (like Doctorow) that want their works distributed as widely as possible and those (like Pournelle) who don't. It doesn't matter what you think of those choices - they're both using legitimate business models to earn an income. What's important is that it gives them a completely different perspective on DMCA takedown notices.

For the first group, a takedown mechanism is never going to help them and can easily hurt them. They'd never use one themselves but could have their works taken down by accidental (or deliberate) inclusion in a DMCA takedown notice.

For the second group, they see their works available to the world online against their wishes. Any takedown mechanism is always going to be too onerous for these people. What they really need is to be able to prevent it being posted in the first place ! They're thinking that every hour their work remains online is another thousand permanently lost sales.

So a takedown mechanism has to balance the interests of these two groups, and is inevitably going to leave both unhappy.

The DMCA itself has a "notice and takedown" mechanism whereby you can send an ISP notice that your copyright is infringed by a page and they have to take it down more-or-less immediately. There's an appeal mechanism that can lead to the page being reinstated 10 days later.

The first group complain that this can be abused to take down criticism, unfavourable reviews, or even to take a competitor's website offline for a while. The DMCA does include penalties for misuse, but to date they have very rarely been imposed (and of course by then the harm has been done).

On the other hand, the second group have to first find out that their work is online against their wishes, find out who to send the DMCA notice to, jump though a number of legal hoops regarding format and wording, and then do the whole thing again for the next website. They see permanent damage from a work being online even for a short while.

So both groups are unhappy with the DMCA as it stands but for opposite reasons.

So are there any more fundamental principles we can use ? I think so. The rights of copyright holders have to sit alongside rights like freedom of expression and the right of presumption of innocence. We also have to look at the level of damage to the two groups of various schemes.

How much harm did Doctorow suffer in this particular case ? Very little. This wasn't the only place his work was online, and it was put back pretty quickly. Could it be worse ? Absolutely, particularly for time-sensitive information. Take down a critical movie review for the first ten days after the movie comes out and you might as well take it down forever. Kill off a competitor's "Boxing Week Sale" webpage for a week. There's certainly the potential for significant damage.

What about Pournelle ? He found that lots of his works had been online for some unspecified length of time, and he sells the rights to publish his works electronically, so there's certainly harm there. While I can certainly see the argument that there's more harm here than in the former case, the problem I have is that once somebody has an electronic copy and the intent to distribute it, there's absolutely nothing you can do. It's going to get to all the people who want a copy without paying for it sooner or later, by email, CD, p2p, bittorrent or from a website. This is whack-a-mole at its finest. We've seen this time and time again.

So that's why I come down on the side of a notice-and-notice system. With reasonable timeframes, infringements can still be dealt with quickly (most infringers will take works down on receiving a notice), but it avoids the problems of misuse of a notice-and-takedown mechanism. It's also more in keeping with our constitutional values.

For the second group of authors, I'd encourage them to go after the people who are creating the illegal electronic copies in the first place, because the only way to stop something spreading through the internet is to prevent it getting there in the first place. Difficult ? Certainly, but no harder than identifying everywhere a work appears online on an ongoing basis.

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A third group, bigger than the other two?

This nails the problems with the DMCA process on the head - it's inflexible and assumes that everything is black and white.

I'd posit that there is a larger 3rd group that is happy to let others use their content as long as they received attribution - either by link back or some other text treatment, as determined by the author.

For this group, a notice could be sent as a potential first step in the DMCA process, whereby the author has the ability to send a follow-up take down notice if attribution isn't added.

Taking this a step further, the attribution definition could be expanded to re-use is permitted as long as you include a widget where you can buy the author's book.

This seems like a much healthier use of the DMCA than jumping straight to Take down notices

Advantages of "Notice and Notice"

I consider the problem you mention to be one of the many advantages of the "Notice and Notice" system being informally used in Canada, and was to be codified in C-60 (Many said this was the only positive development in C-60).

The problem from the "second group" identified by Chris is that they will never see the point. In their mind Copyright seems to have become this moral imperative that everyone should be born following, rather than the reality of Copyright being this excessively complex law that few are able to understand and obey. They also don't see the value of the "Internet", and would prefer that all communications technology was under the control of large corporations as was the case in the past. They really do want to turn back the clock to a time when life was simpler for them.

Creating a balance in Copyright in 2007 requires that we ignore those who want it to be 1967 again, and recognize that time moves onward whether some people like it or not.

I believe there needs to be an easy mechanism for "alleged" copyright holders to speak to "alleged" infringers. I say alleged in both cases as many notices falsely identify works as being under a specific copyright holders copyright, and also that the work may not infringe any copyright at all. Sometimes it is not clear who the host/publisher is for a given piece of information on the Internet, and the ISPs are really the only entity able to determine that. An ISP liability regime essentially says that they have some responsibility, as possibly the only source of this information, to facilitate the communication.

I also believe, contrary to some people, that there should not be a 'right' to anonymity on the Internet. Someone or some legal entity should be said to be "responsible" for any Internet traffic. If you have a political belief where you believe people should be anonymous, then you should be willing to step in and possibly go to court and jail to protect your "sources" in the same way that a journalist would deal with anonymous sources. I think it is noble for an individual to be willing to take on that risk, but do not think it is noble when people want the law to absolve all publishers of any responsibility for what they choose to publish.

The purpose of the "Notice and Notice" regime is IMHO an appropriate compromise considering all these issues. The ISPs must facilitate communication between these other two parties, otherwise risk being held liable themselves for any potential infringement.

ISPs should not be expected to be either copyright lawyers or judges. They should not be expected to take material down based on a notice from someone alleging to be the copyright holder of something that is allegedly being infringed. We have courts and judges to try to make that complex determination, and this should never be forced upon ISPs. In my mind ISPs have no responsibility to copyright holders other than to facilitate conversations with hosts/publishers, and to disclose the identity of these persons in response to court orders.

Free/Libre and Open Source Software (FLOSS) consultant.

Re: A third group

Of course anything that starts with "there are two kinds of people..." is going to be an over-generalisation, but can sometimes be useful nevertheless.

But how does your third group differ from my second group ? If you're using wide distribution of your works as a form of advertising, it's not going to do you much good if your name/website/whatever is removed from an online copy.

I'm inclined to think that this indicates not that there's a third group, but that my first group might indeed use takedown notices themselves, contrary to what I suggested.

As for whether they might first take some lesser action, well that applies to anyone. If you're the kind of person who assumes that it's more likely a mistake than deliberate, you'd probably send an email pointing it out first, whichever group you belong to. I suspect that the second group, due to the harm they feel, would be more inclined to do whatever will get the work taken down quickest.

Agree - there just needs to be more official options

It seems like we agree. My main point was that there needs to be an official middle ground that is acknowledged and perhaps even included in the DMCA process.

It's more important that Content Hosts, Search Engines and Ad Networks embrace this - they certainly have the incentive fix the current situation.

Until this happens, rights holders are going to be limited to DMCA takedown or nothing.

The wonderful thing about Creative Commons is that there is a lot of flexibility, but the lack of monitoring makes it difficult to rely on.