Christine Filipak is a graphic designer and background vocalist for the popular band Nox Arcana. In a perfect world, she would pour all of her energy into her music — instead, she acts as a de facto copyright enforcer for her band.
Though Nox Arcana’s music has appeared in documentaries, television shows and even theme parks with the band’s blessing, Christine also finds her music on hundreds of illegal sites, and spends an enormous amount of time issuing takedown notices. In fact, she has collected five gigabytes of screenshots and unanswered Digital Millennium Copyright Act (DMCA) notices on websites where the band’s music has been copied and distributed illegally, often supported with advertising by major brands.
Christine is one of thousands of independent creators across the country frustrated by the inefficiencies of the “Notice and Takedown” process created by the DMCA. In principle, the process was created to provide copyright owners, like Nox Arcana, an easy way to notify online service providers when they discover their work is being infringed. At the same time, search engines and others were supposed be shielded from liability if they remove the material expeditiously and abide by the law’s requirements.
But in practice, the process is cumbersome and favors non-compliance. It’s not working for Nox Arcana and other independent artists. Some liken it to playing “whack-a-mole;” illegal websites get taken down only to pop up somewhere else.
Stopping IP theft should not be this difficult, or so costly, to the individual artist, who is ultimately the victim.
In the first six months of 2013, the largest search engine received more than 100 million DMCA takedown notices. The numbers are staggering, but don’t reflect the reality that most indie and small creators struggle to keep up with issuing notices and have simply given up trying to prevent illegal profiting from their work. Independent artists cannot afford employing an entire legal department to monitor the unauthorized use of their content on a daily basis.
And the profits are staggering — a recent study by the Digital Citizens Alliance estimates that the top 596 pirate sites raked in $227 million in advertising revenues last year. These sites had a profit margin of between 80 and 94 percent. Content thieves rely on stealing the rights-protected work of others and distributing on low-cost sites. It’s a low-risk, high-reward business.
This week, the House Judiciary subcommittee on Intellectual Property will examine the “Notice and Takedown” process, and to us, it is clear that a very hard look is necessary.
The DMCA was passed in 1998 when the Internet was still very much in its infancy. It was supposed to make things easier for all stakeholders by creating an ecosystem that protects creative works and promotes their dissemination, while also providing safe harbors for the Internet companies that play by the rules. Instead, the ecosystem has become imbalanced, as search engines appear to be turning a blind eye to the infringement on their sites rather than coming to the table to find meaningful solutions.
Permission-less innovation is not innovation at all. Artists should determine how and when their works are used. Yet, the current environment risks chilling artistic expression.
The American people deserve better. The Constitution directs us to promote the progress of art and science. To do so, we must ensure that laws like the DMCA allow for a more efficient compliance process that is practical and effective in a digital world.
It defies common sense that a search engine can receive notice after notice when the same work reappears and not have to do anything more than continue to respond to these notices. Doing the bare minimum is not how the law was intended to function. Search engines need to do more to implement reasonable repeat infringer policies, such as considering the number of notices and takedowns that a site has received when compiling the order of search results and stopping automatic reposting once a link has been disabled under a DMCA notice.
“Takedown” should mean “stay down.”
As the Judiciary Committee looks at this issue and continues its review of copyright, we will work to ensure that the voices and views of all creators — including independents like Christine — are heard and respected.
Chu has represented California’s 27th Congressional District since 2009. She sits on the Judiciary and the Small Business committees. Marino has represented Pennsylvania’s 10th Congressional District since 2011. He sits on the Foreign Affairs; Homeland Security; and Judiciary committees.