Proposed Changes to the DMCA:
Clearly the DMCA was enacted with the goal of simplifying copyright law in the digital age. However, the DMCA was enacted in 1998, and obviously failed to anticipate the growth and needs of the ever-changing e-commerce market.
The current state of the law allows & essentially encourages power houses like Amazon to shield themselves from copyright liability at the expense of the sellers who generated over $131 billion of Amazon’s annual revenue in 2015.[1]
Copyright bullying results in lost profits for small businesses on the Amazon platform every time a baseless complaint is made. The only recourse based on the way the law currently stands is for victims of copyright bullying to litigate. This however requires hiring an attorney and spending the time and money associated with going to trial; an expense start up e-commerce businesses simply cannot endure.
The remainder of this note will suggest three amendments to the DMCA. First, it suggests redefining the “expeditious” standard found in §512(c). Second, it recommends stricter notice requirements for complaints made in the e-commerce context. Finally, it will pose severe fines for those who are found to be engaging in copyright bullying across any e-commerce platform.
Section 512(c) “Expeditious” Requirement
Section 512(c)(3) requires service providers “upon notification of claimed infringement … responds expeditiously to remove or disable access to the infringing material that is claimed to be infringing or to be the subject of infringing activity.”[2] Courts have offered little guidance in their holdings as to what exactly “expeditious” means. For instance, in Ellison v. Robertson, the Court of Appeals for the Ninth Circuit held that America On Line’s (AOL) response to notice from Ellison of the defendant’s infringement.[3] The court held that “Because AOL changed its e-mail address in an unreasonable manner and should have been on notice of infringing activity,” that a reasonable jury could conclude that AOL had not responded “expeditiously.”[4] There, AOL did not properly register a contact e-mail with the Copyright office.[5] Litigation involving the expeditious standard is rare because it is so ambiguous. Also, because the decision in Ellison was so fact specific (AOL essentially took no action at all), it provides little guidance as to what precedent exists for future decisions.
Balancing Test
In order to allow flexibility for Amazon & other ecommerce platforms to verify complaints, a balancing test would serve the needs of the courts as well as the sellers victimized by copyright bullying in deciding whether a service provider acted “expeditiously” as required by the DMCA.
The suggested test would first assess whether service providers implement up-to-date software that can monitor for copyright and infringement. Second, service providers will be given deference towards their response time depending on the context in which the infringement takes place. Complaints that would normally require immediate suspension in the e-commerce context for example will not only allow a grace period for the service provider to assess the validity of the claim, but will require them to do so
Software Monitoring
Content recognition and digital fingerprinting software exists to help identify copyrighted material that appears on the internet.[6] Amazon currently does not monitor their platform for IP infringement.[7] Unless an infringement is specifically brought to their attention, Amazon will provide continued access to their sellers.[8] The DMCA should require e-commerce service providers to implement state of the art content recognition software. Not only can this software help the ISPs protect themselves from liability, but court decisions will become more uniform as a result of having a baseline standard for the service providers to adhere to. In addition, if a complaint is filed on Amazon or another e-commerce platform, having the most up-to-date software will help ensure that Amazon is able to assess the validity of the complaint as “expeditiously” as possible under the new standards suggested.
Deference Towards Response Times
The next part of the test suggests that the DMCA should outline how courts consider the facts surrounding the nature of the notification. “The Senate and House reports both acknowledged that different factual circumstances may merit different response times by service providers.”[9] The DMCA should require service providers to consider several factors when deciding when taking action is necessary, including: (1) the context in which the complaint was made; (2) the effect of immediate removal will have on all parties involved; (3) whether the service provider needed to consult an attorney; (4) whether the service provider had prior knowledge or reason to know of the infringement; and (5) the adequacy of the notification.
This system will account for the ambiguities among the circuit courts in determining whether a service provider’s response meets the “expeditious” requirement of §512. In addition, the context and outcome considerations in prongs (1) and (2) will allow e-commerce platforms reasonable time to assess the validity of complaints without fear of losing access to the safe harbor provisions for liability.
eCommerce & the DMCA – Amazon Notice Requirements
Amazon arguably has notice procedures in place such that when a rights owner files a complaint on the platform that they sufficiently comply with the requirements of §512(c)(3). The problem is that when filing the complaint, the complainant has the option of limiting the information or leaving certain questions “blank.” In order to ensure any ambiguities, the DMCA should require two additional standards for notice on the ecommerce platform. First, service providers should not be allowed to provide a complaint form in which a complainant is permitted to submit a complaint containing incomplete information. Notice should be required to satisfy each element of §512(c)(3) in the e-commerce context in order to comply with the amended DMCA. The “substantial compliance” provision should no longer apply here. Second, the law should require that service providers implement some sort of “gate-keeper” so to speak to assess the validity of notice of copyright infringement prior to takedown by removing a seller’s privileges. Finally, e-commerce platforms should be required to permanently suspend any user who is found to knowingly submit baseless notice for a copyright complaint without opportunity to appeal.
By requiring the strictest adherence to the DMCA provisions in §512(c)(3), as well as providing mandatory verification, and penalty for baseless complaints, the DMCA will more adequately be able to deter copyright bullying. When those who are accustomed to the practice realize that e-commerce giants like Amazon have started to fight back, copyright bullying may eventually be eliminated. Further, the problems among circuits in assessing the validity of notice (at least in the e-commerce context) as seen in Hendrickson and ALS Scan as mentioned above will be alleviated should those platforms all be held to the same strict standards for notice compliance under the DMCA.
In addition to the penalty of perjury for falsifying an infringement notification, the DMCA should add harsh fines for those found to be involved in copyright bullying. As discussed above, ecommerce trademark bullying can result in substantial loss of income for sellers on these platforms. The DMCA should require that any party who knowingly makes a false copyright infringement claim against another shall be responsible for the entirety of the financial consequences surrounding the situation. For example, if a trademark bully is found to have “hijacked” another seller’s listing on the Amazon platform, they would be required to pay that party for lost profits, and attorney’s fees incurred as a result of their suspension and battle for reinstatement.
eCommerce & the DMCA Conclusion
Without a doubt, ecommerce has changed the way the world looks at the retail industry. However, the DMCA and copyright law clearly have struggled to keep up with the constantly evolving market in a way that sufficiently prevents abuse of the law. The injustices that occur on the Amazon platform can be avoided across all ecommerce platforms without any undue burden on service providers. Not only would the suggestions above allow platforms like Amazon to assess the validity of complaints before suspending a seller’s account, but they would encourage it. Simultaneously, the harsh financial penalties also will likely deter baseless complaints. The spirit of capitalism has always encouraged free enterprise and fair trade, and that ideal should not be lost due to the complexities of the ever-evolving technological times we live in. Copyright law, specifically the DMCA can and should be amended in order to preserve the entrepreneurial spirit and protect small business owners from copyright bullying on ecommerce platforms.
eCommerce & the DMCA
[1] Angel Gonzalez, Third Party Sellers giving Amazon a Huge Boost The Seattle Times, (May 31, 2016) http://www.seattletimes.com/business/amazon/amazon-to-host-forum-for-its-marketplace-merchants/. [2] 17 USCS § 512 [3] Ellison, 357 F.3d at 1080. [4] Id. [5] Id. [6] Brad Stone & Miguel Helft, Software Could Protect Against Online Media Piracy The Tech Online (February 20, 2010), http://tech.mit.edu/V127/N5/webpiracywire.html. [7] Rosenbaum, supra note 28. [8] Id, [9] See generally S. Rep. No. 105-190 (1998).