Copyright Office’s Proposed Notice and Staydown System Would Force the Internet Archive and Other Platforms to Censor the Web

censoredIn May, the US Copyright Office came to San Francisco to hear from various stakeholders about how well Section 512 of the Digital Millennium Copyright Act or DMCA is working. The Internet Archive appeared at these hearings to talk about the perspective of nonprofit libraries. The DMCA is the part of copyright law that provides for a “notice and takedown” process for copyrighted works on the Internet. Platforms who host content can get legal immunity if they take down materials when they get a complaint from the copyright owner.

This is an incredibly powerful tool for content owners–there is no other area of law that allows content to be removed from the web with a mere accusation of guilt. Victims of harassment, defamation, invasions of privacy, or any other legal claim, have to go to court to have anything taken down.

Unfortunately, this tool can be, and has been abused. We see this every day at the Internet Archive when we get overbroad DMCA takedown notices, claiming material that is in the public domain, is fair use, or is critical of the content owner. More often than not, these bad notices are just mistakes, but sometimes notices are sent intentionally to silence speech. Since this tool can be so easily abused, it is one that should be approached with extreme caution.

We were very concerned to hear that the Copyright Office is strongly considering recommending changing the DMCA to mandate a “Notice and Staydown” regime. This is the language that the Copyright Office uses to talk about censoring the web. The idea is that once a platform gets a notice regarding a specific copyrighted work, like a specific picture, song, book, or film, that platform would then be responsible for making sure that the work never appears on the platform ever again. Other users would have to be prevented, using filtering technology, from ever posting that specific content ever again. It would have to “Stay Down.”

This idea is dangerous in a number of ways:

  • No Due Process. Notice and Staydown would remove all of the user protections built in to the DMCA. Currently, the statute allows users who believe material they have posted was taken down in error to file a counter-notification. If the copyright holder does not choose to bring a lawsuit, then the content can be reposted. The law also prohibits the sending of false notices, and allows users who have been falsely accused to bring a claim against their accuser. These protections for the user would simply go away if platforms were forced to proactively filter content.
  • Requires Platforms to Monitor User Activity. The current statute protects user privacy by explicitly stating that platforms have no duty to monitor user activity for copyright infringement. Notice and Staydown would change this–requiring platforms to be constantly looking over users’ shoulders.
  • Promotes Censorship. Notice and Staydown has a serious First Amendment problem. The government mandating the use of technology to affirmatively take speech offline before it’s even posted, without any form of review, potentially violates free speech laws.
  • It Just Won’t Work In Most Cases. Piracy on the web is a real problem for creators. However, filtering at the platform level is just very unlikely to stop the worst of the piracy problem. Filtering doesn’t work for links. It doesn’t work well for certain types of content, like photographs, which are easily altered to avoid the filter. And so far, no computer algorithm has been developed that can determine whether a particular upload is fair use. Notice and Staydown would force many cases of legitimate fair use off the web. Further, intermediaries are not the right party to be implementing this technology. They don’t have all the facts about the works, such as whether they have been licensed. Most platforms are not in a good position to be making legal judgements, and they are motivated to avoid the potential for high statutory damages. All this means that platforms are likely to filter out legitimate uses of content.
  • Lacks Transparency.  These technical filters would act as a black box that the public would have no ability to review or appeal. It would be very difficult to know how much legitimate activity was being censored.
  • Costly and Burdensome. Developing an accurate filter that will work for each and every platform on the web will be an extremely costly endeavor. YouTube spent $60 million developing its Content ID system, which only works for audio and video content. It is very expensive to do this well. Nonprofits, libraries, and educational institutions who act as internet service providers would be forced to spend a huge amount of their already scarce resources policing copyright.
  • Technology Changes Quickly, Law Changes Slowly. The DMCA requires registered DMCA agents to provide a fax number. In 1998, that made sense. Today it is silly. Technology changes far too quickly for law to keep up. Governments should not be in the business of mandating the use of technology to solve a specific policy problem.

The DMCA has its problems, but Notice and Staydown would be an absolute disaster. Unfortunately, members of the general public were not invited to the Copyright Office proceedings last week. The many thousands of comments submitted by Internet users on this subject were not considered valuable input; rather, one panelist characterized them as a “DDoS attack” on the Copyright Office website, showing how little the people who are seeking to regulate the web actually understand it.

The Copyright Office has called for more research on how the DMCA is working for copyright holders and for platforms. We agree that this research is important. However, we must remember that the rest of the online world will also be impacted by changes to the DMCA.

30 thoughts on “Copyright Office’s Proposed Notice and Staydown System Would Force the Internet Archive and Other Platforms to Censor the Web

  1. Pingback: Copyright Office’s proposed Notice and Staydown system would force the Internet Archive and other platforms to censor the web | My Blog

  2. George Birbilis

    An automated user could warn next poster of same content that this content has been posted before and had been taken down via DMCA process, reminding them of any legal issues if they insist on posting the item again.

    Using hashes could cover some content but not all of course. Running similarity checks on images would be silly for example (too costly and could cut-off other valid content)

    1. Koppe

      Problem is that what may have violated DMCA once – assuming it actually did the first time, and wasn’t removed due to overly-cautious site-owners, or copyright-holders over-reaching (eg. fair use) – doesn’t necessarily do so the next time. A movie clip or photo may be a copyright violation if it’s uploaded alone… but in another context – eg. reviewing a movie or writing about a photographer or movie-director – it may be well inside fair-use.

  3. Hiccup

    I can never be sure if these US government people are extremely corrupt, or extremely stupid.

    1. Tacos

      BOTH this is blasphemy plain and simple a move for full and total control we need to stand up and unite against these people or they will censor the entire interwebz as we know it and nothing will be available any more.

    2. Coda

      Mostly just stupid. They mean well but for the most part the kind of people who become lawmakers are generally not content creators and not IT-savvy. That’s why you have them coming up with plans that sound good on the surface (“once we know something’s illegal, we can keep it from coming back”) but have repercussions that they simply didn’t think through due to lack of knowledge.

      It doesn’t help that they also have the mindset that anyone opposed to proactive copyright protection is in support of piracy.

    1. Diane MacIntyre

      My 4000 page website The Silents Majority On Line Journal of Silent Film ran for 7 years. The entire website was donated to the archive. That’s what your conditions ask. –DONATE. I can’t get on the archive for research of my own creation. You gave us a place to access our hard work. Now you want to take it away? I’m appalled and disappointed. Make it right!

  4. Pingback: US Proposed Notice and Staydown System Would Force the Internet Arc… | Dr. Roy Schestowitz (罗伊)

  5. Art16

    This appears to be a corrupt action on the part of the Copyright Office. I agree it would damage the due process that is inherent in the law, the internet and internet platforms being a mode of electronic communications. let those who take issue with what is available on the internet at no cost take those responsible into a court of law as is the common law in the United States, the last I looked. The fact that the Copyright Office did not hold a public hearing on its proposed actions, contrary to all other government agencies smacks of concealment and motivation to do damage. The Federal Communications Commission has jurisdiction over the internet. I wonder what they would say about this attempted censorship?

  6. Jim Burke

    Maybe case made above can be used as a template for a petition recommending a halt to proceed with the “Staydown System” under consideration until these points can be ironed out: Due process; User monitoring; Promotion of censorship; Workability; Transparency; Costly and burdensome; Technology change-rate vs. law-change rate.

    The petition drive for net neutrality had an impact. Possibly the same can happen in this case. I would sign it.

  7. Internet user in sunny miami.

    This is what Aaron Schwarz stopped some years ago when government tried to push the 2 bills called SOPA & I think the other was called PIPA . He managed to fully understand its deceiving meaning and was able to unite people and oppose these 2 bills . It’s time to reunite for round 2. It’s funny when a bill gets shot down they always re-introduce the same bill with a different name.


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  13. John Allcock R.N. (Ret.)

    Copyright as it has been up to now _IS_ and should remain the standard, not something dreamed up by dumb-dumb Stephen Harper and his cronies at overseas secret meetings. Harper was about as suitable to be in government, as the Devil, to reign in heaven!! Those playing around with these ideas, make one long for the re-institution of the guillotine, or burning at the stake!! down once and for all with censorship!!!


    Copyright is big issue on Internet.. I would suggest archive to confirm their website first and then save page. None want their website pages to be saved by others…

  15. Pingback: The Bogosity Podcast » Bogosity Podcast for 13 June 2016


    Under the new regs, if a site is taken down permanently, it becomes a “ghost” & how is the owner supposed to advocate for a reversal if even the name can’t be mentioned??
    Shades of the Soviet Union & those who disappeared into the Gulag!!

  17. Deb Lindsley

    Another step back in human rights and an advance in suppression of the masses. Sounds so familiar–like Russian and Germany (and practically every other country at some time or the other). Seems like we keep having to fight the same battles over and over again, but we can give them Revolutionary War II if that’s what our government wants.

  18. Carolyn

    Wow. As an artist and designer whose livelihood had been devastated by copyright infringements of my work I really cannot accept people wanting free access to everything and labelling me as the bad guy who want to censor the internet. The DMCA at is stands actually does very little at all to protect me. A particular problem at the moment is an online marketplace (arguably THE largest in the world) permitting counterfeiters to infringe my IP over and over and over again. I have been filing DMCA notices on the same images repeatedly for over a year now. I cannot sue the uploaders as they are in China, and the marketplace service provider wins every legal action brought against it under the Safe Harbor provision, despite the existence of ‘red flag’ knowledge and failure to fully comply with the DMCA. Too many websites and service providers fail to comply with the DMCA knowing full well that many IP owners cannot afford to get into a legal battle. When Roger Daltrey of The WHO says that they will make no more albums because internet piracy removes any incentive, you know there is something wrong. When Eli Roth says that indie films will be a thing of the past because of internet piracy, you know there is something wrong. When no artists, photographers, musicians or filmakers can make a living because of IP infringement and hence they stop creating, won’t the world be a far duller place to live?

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