What Really Does and Doesn’t Work for Fair Use in the DMCA

On July 28, the Senate Committee on the Judiciary held another in its year-long series of hearings on the Digital Millennium Copyright Act (DMCA). The topic of this hearing was “How Does the DMCA Contemplate Limitations and Exceptions Like Fair Use?”

We’re glad Congress is asking the question. Without fair use, much of our common culture would be inaccessible, cordoned off by copyright. Fair use creates breathing space for innovation and new creativity by allowing us to re-use and comment on existing works. As Sherwin Siy, lead public policy manager for the Wikimedia Foundation, said in his testimony: “That fair uses aren’t rare exceptions to the exclusive rights of copyright law but a pervasive, constantly operating aspect of the law. Fair use not only promotes journalism, criticism, and education, it also ensures that our everyday activities aren’t constantly infringing copyrights. Especially now that so much of our lives are conducted on camera and online.”

Unfortunately, the answer to Congress’s question is: not enough. The DMCA, in particular, by design and as interpreted, doesn’t do enough to protect online fair uses. This is the case in both Section 1201 of the DMCA—the “anti-circumvention” provision which bans interference on technological restrictions on copyrighted works—and Section 512—the provision which immunizes platforms from liability for copyright infringement by their users so long as certain conditions are met.

Fair Use and Notice and Takedown

The DMCA was meant to be a grand bargain, balancing the needs of tech companies, rightsholders, and users. Section 512 embodies a carefully crafted system that, when properly deployed, gives service providers protection from liability, copyright owners tools to police infringement, and users the ability to challenge the improper use of those tools. Without Section 512, the risk of crippling liability for the acts of users would have prevented the emergence of most of the social media outlets we use today.

But Congress knew that Section 512’s powerful incentives could result in lawful material being censored from the Internet, without prior judicial scrutiny, much less advance notice to the person who posted the material, or an opportunity to contest the removal. For example, users often making fair use of copyrighted works in all kinds of online expression. That use is authorized by law, as part of copyright’s “built-in First Amendment accommodations.” Nonetheless, it is often targeted for takedown under the DMCA. 

For Section 512, user protections are supposed to be located in sections 512(g) and 512(f). In practice, neither of these sections have worked quite as intended.

Section 512(g) lays out the requirements for counternotifications. In theory, if a takedown is issued against a work making fair use, then the target can send a counternotice to get the work restored. The counternotice contains personal information of the creator and an agreement to be subject to a court case. If the person or organization doesn’t respond to the counternotice with a legal action within two weeks, the work goes back up. In practice, very few counternotices are sent, even when the original takedown was flawed.

512(f) was supposed to deter takedowns targeting lawful uses by giving those harmed the ability to hold senders accountable. Once again, in practice, this has done little to actually prevent abusive and false takedowns.

Columbia Law Professor Jane C. Ginsburg agreed, saying that these parts of 512 “may not always have worked out as intended.” She highlighted that automated takedown notice systems don’t take fair use into account and that there are relatively few counternotices. She allowed that “fear or ignorance” would cause users not to take advantage of counternotices, a point backed up by cases of trolling and the intimidating nature of the counternotices.

Evidence of how users avoid the process was given by Rick Beato, a musician who also has a popular YouTube channel that teaches music theory. He noted that he has made 750 YouTube videos, of which 254 have been demonetized and 43 have been blocked or taken down. Beato noted that he’s never disputed anything – it’s too much trouble.

Several witnesses urged the creation of some sort of “alternative dispute resolution” to make taking down and restoring content easier. We disagree. Section 512 already makes takedowns far too easy