1998’s Digital Millennium Copyright Act is an imperfect solution to an impossible problem.
On October 20, popular gaming and video streaming service Twitch started permanently deleting a large number of user videos. Certain streamers received notice that their content was subject to one or more DMCA takedown notifications and that these videos would be removed. Normally, a content creator would be able to file a claim countering the takedown notice. However, Twitch did not give streamers a chance to petition against the takedown or recover their videos. The streamers weren’t even told which videos violated the DMCA, or how—they only received a “one-time warning” coupled with a “chance to learn about copyright law.”
Twitch has since resumed normal processing of DMCA notices, but the incident raises a number of questions: What is the DMCA, and how does it guide the actions of online service providers and platforms such as Twitch? Why was it made and what are the weaknesses that make it controversial? And most importantly, why should you care about what happened to your local Fortnite streamer?
To understand what the DMCA is, we’ll first need to know the basics of copyright law. Cue definitions:
Copyright legally protects an individual’s expression of their ideas. This protection encompasses a wide variety of media—novels, pictures, film, music, even code. What is important is that the individual created the content in an original way. As an example, let’s say I record a song about snails. If I come up with this song by myself, I get the copyright. With this copyright, I can reproduce, prepare derivatives, distribute copies, and publicly perform my song about snails.
However, this does not mean that other people need a license to use my song. Fair use allows other people to use brief excerpts of copyrighted work (or even the entire work), because US copyright law supports the “encouragement of learning” and the “benefit of the public.” So, a professor could play my song about snails in a Biology lecture to help students easily understand the basics of gastropod anatomy.
The traditional ownership of copyrighted works is not rigid: rights can be bought and sold, as they are with content creators and publishing companies. Publishing companies then profit off copyright ownership of outsourced content in exchange for helping the original creator with distribution, marketing, and lowering transaction costs. For example, if I wanted to succeed as a musician, I could sign a yearly contract with Universal which would finance and advertise my snail-song albums. However, after the contract is over, Universal would own the rights to my albums and could continue to profit off them.
Before the internet, it was common practice for authors and other content creators to follow this model. After all, publishing companies provided upfront money and distribution resources that would be otherwise inaccessible. However, as more content moved online, self-publishing, or publishing while retaining the rights, became more lucrative. Publishing companies that once relied on owning an author’s rights for profit are now seeing their services rendered obsolete in an environment where advertising and distribution is far cheaper.
A separate but parallel problem arises with pirating—it is now far easier to distribute copies of a copyrighted work, both for free and for commercial gain (exacerbated by the pandemic). When fewer people are selling the rights to their work and readily-available copyrighted material is draining profit, publishers respond by radically strengthening copyright law. This is where the DMCA comes in.
The DMCA, or Digital Millennium Copyright Act, was passed in 1998 at the behest of large publishers and copyright holders. There are three main provisions of the DMCA. First, it is illegal to use technology that circumvents online copyright protection or digital rights management. Second, it is illegal to distribute it. You cannot legally decrypt my snail-song mp3. Third is the “safe harbor” clause—online service providers like YouTube and Twitch aren’t accountable for infringing content, as long as they remove such content when notified by the rights’ holder.
The DMCA seems reasonable at first glance, in order to prevent the theft of protected material. However, it raises a host of issues that make it not harmful, per se, but quite complicated. For one, the DMCA makes it much harder to justify fair use. A content creator using copyrighted material for purely educational and non-commercial purposes is still at risk if publishers determine that their DMCA rights have been violated. Large publishers have the legal means to bring their cases to court and reap damages. This is a potential violation of free expression and the ultimate goal of copyright—to benefit the public through learning.
There is also the question of theft. Supporters of the DMCA claim that the act is an important protection against digital piracy. Yet the sheer scope of pirating-centric websites outnumber the grasp of publisher lawsuits. (I won’t give you a list of active sites that facilitate the distribution of protected copyright material, because you most likely know about and are using them. Library Genesis who?) Even if pirate-centric websites are taken down, the question of “copyright infringing device” becomes more troubling when general-purpose online service providers have users who post copyrighted work. For example, YouTube-DL, an open-source software project that is used by scholars to archive digital work, was targeted by the Recording Industry Association of America because its software might be able to help download copyrighted videos. YouTube itself is a huge purveyor of copyrighted work. Should it, and all of its valuable and lawful content, be discontinued because of a subset of violators? Should knives be illegal because some people use them to kill, even though knives are mostly used to cut vegetables and poke snails? Thus far, courts have granted broad protection and latitude to online service providers regarding the DMCA, but the risk of otherwise legal and beneficial online services being prosecuted remains a threat.
Moreover, piracy often isn’t even an issue for many self-publishers and content creators. This is because their business models revolve around providing free online goods and benefiting off of their brand and complementary goods. Beyonce uploads her songs online for free; it doesn’t cost a cent to subscribe to and consume YouTubers’ videos. The real profit comes from the ad revenue, the merchandise lines, and the private commissions. The question of piracy is therefore based on an “old” model of media consumption—one where media is made exclusive by a small number of publishers, and where the publishers profit off of owning others’ rights.
After these arguments, the DMCA may seem highly problematic. But here is where I mount its single largest defense:
The Internet is huge. What are the alternative policies of regulating such a vast body of content? The DMCA takedown system offers online service providers the ability to function without legal interference, especially as providers scale up to include more users and more content. Online service providers simply cannot effectively monitor infringement claims on a case-by-case basis. This is not a question of expanded overhead or good corporate ethics. There is simply too much content. YouTube users upload hundreds of hours of footage per minute. Twitch broadcasts millions of hours of footage a year. And in the case of Twitch, even giving users a chance to file a counterclaim was too much.
Some claim that copyright laws must be strengthened even more in the digital age. Some argue that the DMCA unsuccessfully enforces an outdated publishing model that chills free expression. Some do both: the Electronic Frontier Foundation vows to fight against DMCA non-circumvention laws and to support the DMCA takedown system. What would you do?There are parts of the DMCA that seem regressive, and there are parts that seem unavoidable. Regardless, digital copyright will certainly remain a controversial issue as more of our media gets sent online. So, as more Twitch streamers raise annoyance at content take-downs, and as the ownership management of my Spotify snail songs gets more hectic, I implore you to think more about who owns and benefits from the rights to the media you consume.
