Comment 8: The Law of Unintended Consequence in the Law (Part One of…)

At its best our legal system creates and enforces laws in a manner which is fair. That is to say, laws are created to fix problems and then enforced, but in truth ideal systems tend to remain well outside our grasp. That brings us to the passage of the Digital Media Copyrights Act (DMCA) of 1998. What could possibly go wrong?

Can I have a super brief history?

The DMCA (Pub. L. 105-304) amended Title 17 of the United States Code (USC) in order to align US law with a couple treaties passed by the World Intellectual Property Organization. One of the mechanisms created in all this was the DMCA Takedown notice, where copyright holders could inform websites that it is infringing on the notice sender’s copyright.

There’s a lot more to it, but you asked for super brief.

A takedown notice?

Okay, so a takedown notice is at its core just a legal threat saying, “You’re hosting my content without permission and if you don’t take it down I’ll take you to court!” It’s a little more complicated than that, but you’re reading this on a computer so you can track down the information if you’re interested.

This sounds great. I don’t want people stealing the stuff I make. I don’t see any…

Hold up. Go back to the first paragraph. I foreshadowed really hard that this wasn’t going to go well. Even though people create laws, or at least we hope, with the best intentions there is something known as second-order effects. Really, just another name for unintended consequence.

The transactional nature of the takedown notice doesn’t really require much in the way of proof, to the point that you can issue a takedown notice on unregistered copyrights. Sure, you’d probably need to register the copyright if you want to take the issue to court, but not every takedown notice is about money.

The real burden of DMCA takedowns are on the website (host, streaming service, etc). When they receive a takedown a website can do one of two things: take down the offending content or keep it up. Either choice is a crapshoot for the website because they tend to treat DMCA takedown notices like a cat in a box with a cesium atom. The website doesn’t want to expend the resources to investigate the claim and they don’t want to get sued.

So what happens?

Many websites accept the claims of the takedown notice on its face and remove the offending material.

It sounds like everything is working like it should.

Maybe. We’ll pick this up in Part Two where we’ll discuss the weaponization of takedown notices.

This sounds ominous.

The ABA Rules of Professional Conduct, Model Rule 1.1 Comment 8 requires, “To maintain the requisite knowledge and skill, a lawyer shall keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” To that end, we have developed this regular series to develop the competence and skills necessary to responsibly choose and use the best technologies for your educational and professional lives. If you have any questions, concerns, or topics you would like to see discussed, please reach out to e.koltonski@csuohio.edu.