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Comments on the DMCA and Section 512

By Andrew Norton
P2P Researcher
http://ktetch.co.uk
1 April 2016

Federal Register Number 2016-04641
ID COLC-2015-0013-0002

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About the Author
Andrew Norton1 has been researching P2P and copyright systems for the last 15 years. In the late 90’s he
was a copyright enforcer for a small London-based record company, and later worked in the TV industry,
working on shows for the BBC and Channel 4 in the UK, and Comedy Central, and ZDTV (later
TechTV/G4) in the US.
He joined the Dutch news site TorrentFreak.com as it’s researcher and community manager in 2007, and
one of his earliest works was the research into bittorrent throttling nationwide by the ISP Comcast. After
independent verification of this, the FCC started investigations which led to the rules on Net Neutrality.
In 2012 he released a book “No Safe Harbor”2 with contributions from award winning authors like Cory
Doctorow, Presidential candidates like Lawrence Lessig, and the National Science Foundation’s William
Sims Bainbridge.
He has also been the National chairman of the United States Pirate Party, Vice-chair of the Georgia Pirate
Party, a Governor of the Pirate Party UK, and the first head of Pirate Parties International, where he
coordinated the 2009 European Parliament elections, leading two seats for the Swedish Pirate Party.
In his spare time, he plays with combat robots, edits videos, writes more books and helps run a lecture
track on law and technology3 at the massive Dragon Con science fiction/fantasy convention in Atlanta.

1

https://en.wikipedia.org/wiki/Andrew_Norton_(Pirate_Party)
No Safe Harbor: Essays on Pirate Politics ISBN 978-1468033991 http://www.amazon.com/No-Safe-Harbor-UnitedStates/dp/1468033999
3
Dragon Con Electronic Frontiers Forums – http://eff.dragoncon.org
2

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Comments
There should be no doubt in the minds of anyone who has spent any length of time viewing the DMCA that
it is irrevocably broken. Bad actors flagrantly abuse the law with impunity, while those acting within the law
are – frankly – screwed by a system written by and biased to large legacy media conglomerates.
Having spent some 15 years investigating, monitoring and being subject to notices under the law, I’ve had
plenty of experience in the many manifold deficiencies that arise when a single-minded focus on ‘protection’
is the prime focus at the expense of both justice, and innovation. It seeks to do nothing but legislate a
stagnation instead of the innovation that is not only the aim, but the constitutional raison d’être for copyright
law in the first place.
In order to make this law ‘fit for purpose’, it needs a substantial overhaul and re-write, as it is presently the
only law I’m aware of which gives no penalty for making a false or inaccurate legal statement. This has to
change, as it’s becoming a litigation spending competition, and if you can’t afford to pay for such litigation,
you’re left with no resolution no matter how good the legal basis of your claim, or how insubstantial or nonexistent the opposing claim is.

Automated notice systems are perhaps the biggest issue. They allow companies to send notices scattershot
using any and all keywords they desire, and put the workload onto the receiving company to try and make
some sense out of them. A significant percentage of the claims are not even the works themselves, and this
includes attacks by companies with significant technology credentials, such as Microsoft.
For instance, over a one-year period TorrentFreak.com ran 6 separate articles about false DMCA notices
submitted on behalf of Microsoft.
In an October 2012 piece, it was reported4 how takedowns from Microsoft targeted the BBC, The
Washington Post, Wikipedia, TechCrunch, Buzzfeed, Huffington Post, the EPA, and more – all because
they reference the number 45. On other occasions they asked Google to remove links to their own search
engine Bing (while they’re within the rights to do so, it makes no legal or business sense for them)
In July 2013, it was reported 5 that Microsoft had again sent DMCA notices to Google, asking them to
remove links to... Microsoft.com. They had decided that their own website was infringing their own
copyrights, go figure. Google did not end up removing these links though, as they had a requirement under
the law to spend more time processing these links to ‘infringement’ than Microsoft (or the company they’d
contracted the work out to, called ‘LEAKID’) had done. LeakID could just toss any and all links into a
claim much like a catch-all churn bucket, and pass the cost of actually verifying the claims, and thus
Microsoft’s rights, on to their target.

4
5

https://torrentfreak.com/microsofts-bogus-dmca-notices-censor-bbc-cnn-wikipedia-spotify-and-more-121007/
https://torrentfreak.com/microsoft-wants-google-to-censor-microsoft-com-130728/

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In August of 2013 Microsoft were found6 to be sending DMCA notices related to Microsoft Office, but not
always to take down unauthorized copies so much as hobble the competition, not once but multiple times.
While Google stopped this direct assault on a Microsoft competitor via the Google search engine, one can
only ponder at the response from the second largest search engine – Microsoft’s Bing. How much
investigative time do you think Microsoft Bing will put into verifying claims from Microsoft’s legal arm?
In September of 2013 even more false notices were reported7, including those of its own Wikipedia pages,
and to pornographic titles. After this latest round of embarrassments, they finally fired the company
responsible8 (“LeakID”) with a spokesman telling TorrentFreak “Microsoft is committed to ensuring that

enforcement measures are appropriate and completely accurate. We are investigating the circumstances of
this takedown and have instructed the vendor that it is no longer authorized to send notices on our behalf,”
So, how long did this commitment last? Well, not very long, as in November 2013 Microsoft (via it’s Russian
arm) had filed a DMCA notice against… Gmail9. Literally targeting the address
http://mail.google.com/mal/u/0/ as infringing on Window8. Nor were they alone in targeting it, as
‘professional’ companies that do nothing but send these kinds of notices have also sent them against Gmail
– including UK based ‘RipBlock’ and Czech company ‘Netlook’.
Despite claims by directors of these companies that they ‘check’ the addresses before they send, it’s clear
they don’t, nor is there any incentive to. In fact, checking them would be a detriment, as it would raise costs
to do an action they’re not required to do, especially as the recipient is going to have to check anyway, so
they might as well pass the costs on to them, and use the time to send out more notices. After all, it’s not
like there’s any penalty for sending false notices.

False notices extend even further too. I myself have been targeted for notices for works in the public domain.
In 2014 I got a notice via YouTube that a company called ‘AdRev’ was making a DMCA claim on a video
I’d put up. That video was a concert by the Jasper County
Middle School (Jasper County, Georgia) and the claim was
over Dvořák’s “Symphony No.9 in E Minor”10 (commonly
called the ‘New World Symphony”). It was composed in
1893, by Antonin Dvořák (1841-1904) and is in the public
domain. That didn’t stop ‘AdRev’ from making a claim on
it, and they have quite a business making false claims based
on DMCA notices that people are afraid to counter-notice. I
was not and filed a counter-notice, which AdRev didn’t
bother contesting.

6

https://torrentfreak.com/microsoft-censors-openoffice-download-links-130814/
https://torrentfreak.com/microsoft-wants-google-to-censor-its-wikipedia-page-130927/
8
https://torrentfreak.com/microsoft-ditches-anti-piracy-partner-after-embarrassing-dmca-takedowns-130927/
9
https://torrentfreak.com/gmail-stays-up-as-google-rejects-microsoft-dmca-takedown-notice-131102/
10
https://youtu.be/Y215K1NwG90?t=27m10s
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Nor is it the only time I’ve had fraudulent notices. In 2011 I used a piece of music under license (a Creative
Commons CC-BY-NC-SA license) in a video11 about particle accelerator design work at the Rutherford
Appleton Laboratory’s in the UK

On contacting the artist (and copyright holder) of the piece of music (“Billions and Billions” by Stelladrone
- https://www.jamendo.com/track/771558/billions-and-billions ) and got the following reply

Hello, Andrew,
I appreciate your message very much, I am always interested in other people’s works using my tracks,
so.. thank you a lot.
Now back to the point:
Yes, copyright is very sticky (that’s one of the many reasons I was, am, and will be against it). Just a
quick search on google and I found this:
http://www.google.com/support/forum/p/youtube/thread?tid=52c90a1fd014c616&hl=en
So far I released all my music under Creative Commons BY-NC-ND license. And that’s only because
I wanted people to know, that I do not require any payment or anything. But lately I decided to switch
to Attribution only, because it is the only license that is the most consistent with my philosophical
views on this issue.
As you experienced yourself, it doesn’t matter what the author is claiming, there will always be groups
of people like “Music Publishing Rights Collecting Society” who will harass anyone just because they
11

https://youtu.be/KbSnCcDsW-4

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can (I am pretty much sure they have government support, otherwise you could ignore them, like
spam).
Well, there is also another thing: in my video of “Billions And Billions” I used video footage from
Carl Sagan’s “Cosmos”, and after the upload I got the notice from YouTube that it “may include the
content that is owned by Koch Entertainment”. However, they didn’t take the video down. Good for
me.
So anyway, just to be clear: all my music is free (under Creative Commons license, doesn’t matter
whether BY-NC-ND or just BY) and I have never signed nor thinking of signing any contract that
could violate the freedom of use of my own digital content.
Once again, thank you, and feel free to do anything with my music.
-Edgaras

More info here

So we have notices that are being sent on behalf of works either in the public domain, or where the rights
holders want them to be used. The problem as always comes back to the same issue – there’s no penalties
for sending a DMCA notice that isn’t accurate, and legally correct.
Meanwhile, Section 512(i) requires a policy for the termination of repeat DMCA notice infringers, one
based on the technological measures of ‘a broad consensus of copyright owners’ (by which it means ‘major
copyright owner entities’, as there has been not attempt to even find a consensus with the broad range of
copyright owners, which under the law is the general public). Yet as we’ve seen, a significant number of
notices are fraudulent, meaning that the repeat provision is questionable at best. What’s more, there is no
provision for terminating the notification process (or just ignoring them) for any repeat abusers of the
DMCA, such as the aforementioned examples. Of course Microsoft would cry blue murder if they were no
longer allowed to send DMCA notices, but as we’ve seen the quality of those they have sent hasn’t been all
that good. And it would incentivize entities to send ones of an appropriate quality.

As a broader statement, much of the changes to copyright law over the last thirty years have all been in the
direction of enforcement maximalism. From the ‘No Electronic Theft Act’, through the DMCA and even
the Copyright Term Extension Act of 1998, they all rest on the assumption that more and greater
enforcement is always better, and it’s not. That’s because most of the consultation seems to be with the
major copyright holder entities (the likes of the MPAA, RIAA, BSA, Authors Guild, and similar) who exist
mainly to gatekeeper the status quo and reduce disruption to the bottom line of them and their members,
by reducing competition. Even the Trans Pacific Partnership (TPP) has given preferential access to these
lobby groups, often over lawmakers. For instance, the MPAA had online access to the TPP text back in
201212, while members of the Senate and the majority of copyright holders (ie, the general public) only got
to see it after it was all negotiated, in late 2015.
12

https://www.techdirt.com/articles/20120622/23220319444/ustr-gives-mpaa-full-online-access-to-tpp-text-still-wontshare-with-senate-staffers.shtml

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This is what has caused so many issues with the DMCA – relying on the input of groups who have a very
narrow, selfish desire for copyright to bolster their own positions. They were well aware of the lack of
penalties for major notices and that it was an accusation-based process, which they were fully able to exploit.

The DMCA is in need of serious overhaul, and soon. It has turned into an abuse-filled morass, goading
people into contempt for copyright law in general, and with such lobbyist fueled nonsense passed as law it’s
understandable.
To date, only one case (in almost 20 years) has sought to address any sort of limitation/restriction and seek
redress. That case (Lenz v Universal Music Corp13) has been ongong for almost 9 years, and is still going
through the courts, with the latest ruling coming March 17th 2016. While Stephanie Lenz has been lucky to
have the assistance of the Electronic Frontier Foundation to act as her counsel, the thousands of hours this
case has taken over the last decade is outside the financial reach of all but the deepest pockets.
Case in point, Internet video company Veoh was used by Universal Music Group in 2007, claiming Veoh
wasn’t taking steps to protect against infringement. Despite prevailing at both the district and appellate levels,
they were forced to file for bankruptcy because of the costs of the case.14
All this is underscored by one study released this week by Columbia University’s American Assembly and
Berkley University15, which shows that almost 30% of takedown requests received by Google are
‘questionable’. When one in three requests to a company that is known to be someone scrupulous in
investigating notices are still questionable, it has to be questioned how many going to everyone else are
likewise ‘questionable’.

13

Lenz v. Universal Music Corp., 801 F.3d 1126 (2015)
http://www.wired.com/2010/02/veoh-files-for-bankruptcy-after-fending-off-infringement-charges/
15
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2755628
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Solutions
As the adage goes, “With great power comes great responsibility.” The DMCA provides people with the
ability to take down content worldwide with no repercussions. While many (such as the MPAA in their own
submission16 to this consultation) claim that people act with impunity and that there’s little teeth to the
DMCA, and that repeat infringers are free to infringe over and over, that’s probably for the best, considering
it’s proof-by-accusation nature. Before any more teeth can even be considered, there has to be some
responsibility. This should include penalties and punishments for those who make false, fraudulent or just
plain incompetent claims.
Here are some suggestions on enforcement mechanisms that may help redress the balance.
1)
By far the easiest change would be to put the entire notice under penalty of perjury. However, this still
requires a civil case (at significant cost) which will reduce the applicability of the penalty, as it’ll still be beyond
the reach of most, and still be the subject of financial warfare, where those with the deepest pockets can
easily outspend the other to win. Additionally, in at least one case (Warner Bros V Hotfile) the entity sending
the notices (Warner) argued that since the notices were automated and not by a person, that they were not
‘deliberate lies’17 – an argument that could also be made in this instance. It also has the same problem of
intimidating people with the law. Thus while it’s easy, it’s not very workable, and so not a viable solution.
2)
The second option would be to take a leaf out of telecom services, specifically dealing with telemarkers and
robodialers. There entities that break the law can be reported to the FCC and that agency deals with those
that break the laws/regulations on a large scale18. Smaller actions can be dealt with via fixed penalty civil
actions (Telephone Consumer Protection Act19) with damage multipliers.
Thus my solution is that small fixed penalties enforceable in small-claims courts be permitted for
false/inaccurate DMCA notices. This will help ensure that entities sending notices do so with care and
attention to detail. In addition, the Copyright Office gaining an enforcement bureau to which people can
forward/report false/malicious DMCA complaints with the view of larger scale enforcement. This I would
feel gives both fairness and balance to the law which is currently missing
3)
One final option (that could indeed work in conjunction with suggestion 2 above) would be that bulk-senders
of notices (the so-called ‘professional companies’) be required to register with the Copyright office, and
obtain a ‘license’. This could be chargeable, but ensure that anyone who makes their living from copyright
enforcement (either in the dedicated arm of a major corporation or as a standalone company) would first
16

https://assets.documentcloud.org/documents/2781752/Music-Community-Submission-in-Re-DMCA-512-FINAL.pdf copy
of the MPAA submission to this consultation
17
https://torrentfreak.com/warner-bros-our-false-dmca-takedowns-are-not-a-crime-131115/
18
http://transition.fcc.gov/Daily_Releases/Daily_Business/2016/db0314/DA-16-264A1.pdf
19
47 U.S. Code § 227

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have to undergo education and testing to ensure they know the law. Notices from them should contain their
license number, and should they file enough erroneous/false notices, or otherwise fail to consider fair use
(as the Lenz ruling has indicated they should) then their license would be suspended, or withdrawn,
removing their ability to send bulk (say ‘more than 5 in an hour’) notices to any entity. Any large entity or
company that proclaims to be looking for quality and focused on actual infringement should have no issues
with this, and a low rate like that should have little/no impact on individual creators and small rights holders.
4)
The final option is, of course, to do nothing. Or worse, ramp up enforcement of copyright without giving
any thought to misuse. This is simply not an acceptable answer. As the submission by Automattic20 to this
consultation has pointed out, false notices are there, but people are afraid to deal with them under the
current system. If there’s a problem with the DMCA, that there should underscore things.

20

https://assets.documentcloud.org/documents/2781753/2016-03-31-Automattic-Inc-512-NOI-Comments.pdf copy of the
Submission by Automattic to this consultation

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