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EFF warns against “notice-and-stay-down” approach to piracy

Posted by Sam Frances on Monday, January 25th, 2016 at 16:30

The Electronic Frontiers Foundation (EFF) has warned against a “notice-and-stay-down” approach to copyright enforcement, as the US government consults on the effectiveness of the DMCA “safe harbor” provisions.

The recorded entertainment industry in America has supported a “notice-and-stay-down” approach, whereby content platforms are required to prevent users from re-uploading content that has already been taken down. In the notes to their ongoing consultation on DMCA “safe harbors”, the United States Copyright Office says:

Copyright owners complain that material they succeed in having taken down is often promptly reposted on the same site—the so-called “whack-a-mole” problem. [34] Under section 512 as it has been interpreted, providers are not required to filter out or prevent the reposting of copyrighted content through the use of content identification technologies or other means.

Accordingly, some have proposed that the notice-and-takedown procedure be revised to become a “notice-and-stay-down” procedure—that is, once a service provider receives an effective and uncontested takedown notice for a particular work, the provider should be required to make commercially reasonable efforts to keep that work from reappearing on its site.

The EFF point out that this would undermine the purpose of the “safe harbor” system.

The safe harbor provisions let Internet companies focus their efforts on creating great services rather than spend their time snooping their users’ uploads. Filter-everything would effectively shift the burden of policing copyright infringement to the platforms themselves, undermining the purpose of the safe harbor in the first place.

Such a change would be particularly disastrous for the next generation of online platforms.

That approach would dramatically shrink the playing field for new companies in the user-generated content space. Remember that the criticisms of YouTube as a haven for infringement existed well before Google acquired it. The financial motivators for developing a copyright bot were certainly in place pre-Google too. Still, it took the programming power of the world’s largest technology company to create Content ID. What about the next YouTube, the next Facebook, or the next SoundCloud? Under filter-everything, there might not be a next.

For more information, see: “Notice-and-Stay-Down” Is Really “Filter-Everything” – Electronic Frontiers Foundation

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