Automattic, the company which owns the blogging platform WordPress, has submitted its comments to the United States Copyright Office as part of an ongoing public consultation concerning the DMCA. The company is generally in favor of the current DMCA regime, and states that the safe harbor provisions are "foundational to the Internet as we know it." However the company does take issue with the abuse of DMCA takedown notifications, and calls for some changes to deal with false DMCA claims.
Automattic argues that a major problem with the current DMCA notification system is "the mass and indiscriminate submission of notices by computer programs, apparently without human intervention or review." The company admits that for certain sites, automatic tools to detect copyright infringement might be acceptable, but "personal blogs are not the proper targets for enforcement robots." The company also notes that, "robots simply cannot tell fair use from foul in any but the most obvious circumstances."
Automattic also argues that the counter-notification system is a poor deterrent against false notifications. The company notes that the financial stakes are often so low that it's not worth trying to fight back against false DMCA claims in court. The company states, "As the Office has recognized in studying the issue copyright small claims, most infringements of copyright cause relatively small economic harm, to which full scale federal court litigation is not an economically rational response. The same is true of most fair uses and other lawful uses of copyrighted material to which copyright holders may object, especially on noncommercial blogs: regardless of the strength of the party’s legal position, the use is not of a sufficient dollar value to make litigation rational."
Automattic does offer some suggestions on how to deal with false DMCA claims. The first is to amend the law to add statutory damages to deter abusive DMCA claims. Another suggestion is that companies should have to post a bond before any action is taken on their copyright claims. The third suggestion is that service providers should be allowed to keep their safe harbor status if they reject DMCA notifications that they believe in good faith to be false, even if the content is later found to be infringing by a court.
The final section contains statistics. Automattic states that in 2014 and 2015, the company received 16,794 notifications of infringement. Based on those notifications, the company removed content about 61% of the time. In 29% of the cases, the notifications were rejected because they did not have all the elements required by the DMCA. In 10% of the cases, the notifications had all the required elements but were aimed at content that the company believed to be fair uses, uncopyrightable material, or had misrepresentation about ownership of the copyright. In those cases the notifications were rejected as well. The company received 113 counter notifications in cases where content was removed.
Automattic's full comments to the Copyright Office can be found here.
What do you think of Automattic's suggestions to deal with abusive DMCA notificaitons? Leave your comments below.