A couple days ago I wrote a post saying that, while I don’t support SOPA, I do support copyright protection and I’d like to see the tech community propose their own alternatives and solutions to the problem of copyright infringement.  I think it’s important to keep a dialog open about copyright protection, and to seek the best possible solution (no solution is perfect) to protecting the interests of copyright owners, websites that provide legitimate user-generated content, users exercising non-copyrighted free speech, and the general population.  I knew this post would get a big response, however, the main intention of the post was to comment on the poor behavior and human rights violations committed by the recording industry, which I thought others would be pleased to see me condone.  That seems to have been overlooked, with a focus instead on the fact that I would not outright oppose SOPA, and the flaming ensued.

Of all the responses, the one response in particular that was worth replying to asked me to propose a solution.  Copyright enforcement is such a complex issue that I’ll be the first to admit that I never thought I’d be able to do that effectively.  That being said, not trying makes me guilty of what I have said is wrong with just whining about SOPA – not proposing anything better.

Flawed as it may be, here is my first draft proposal to solving the problem of internet copyright infringement.  I know that it’s not going to be perfect and that you cannot stop copyright infringement completely.  That’s not the goal.  The goal is to start a more productive dialog about various possibilities, and to propose a solution that significantly improves copyright protection while preserving free speech, yet provides a process for blocking sites whose primary function is the sharing of copyrighted material.

If you’re one of the people who doesn’t believe in protecting the copyrights of content creators such as musicians, authors and others, you can just stop reading here.  If you also believe that we should not block or censor sites that primarily share copyrighted material and serve next to no other purpose, you should probably stop reading as well. If you believe that protecting copyright holders and content creators while maintaining the rights of others and the ability of the internet to be a platform for communication and free speech, your thoughts are particularly welcome.

Either way, treat this as a work-in-progress, and try to keep the comments productive.  Let’s also not dive into the minutia of things like, “How will the board of directors be selected?”  I am going to assume that we can work on those details once we have a productive framework, and I’m as far from a writer of legislation as one can get.

Issue DMCA takedown notices through a centralized administrative website

One of the major problems of the DMCA is that there is no accountability for maintaining a clean bill of health in regards to your compliance with it.  There should be a centralized and transparent place for reporting copyright abuse and for companies to respond.  Let’s call it DMCA.org (which is taken by a domain squatter).

DMCA.org, the central repository for copyright complaints, appeals and public records, will be run by a board of directors that is equally made up of leaders from technology, media, and free speech advocacy groups.  It contains a registry of all websites, foreign and domestic, that rely on the DMCA.  Websites are responsible for keeping an up-to-date record here, which includes a contact for issuing DMCA takedown notices to.  Websites that do not register for the DMCA database and respond to infringement claims in a timely manner are not afforded protection under the DMCA and run the risk of being blocked (with one exception that I outline below).  Registrars are required to share information about this registry.

All copyright owners with a copyright infringement claim must also register, create a profile, and file a complaint through this system.  I can’t really think of any case where a person would need to keep their identity private while trying to enforce a copyright claim, but if that does exist please provide some examples and we can talk about it in the comments.

Users may also issue a complaint for unregistered websites, providing the unregistered URLs for reference.  The administrative staff uses commercially reasonable efforts to find a contact person for the website and registrars may also be required to help notify website owners of a claim against them.  Websites are currently required to provide a contact for this purpose anyway.  They will be contacted and informed about DMCA.org as well as the complaint.  They register for the system and address the complaint at that time.  Those who do not reply within a certain time period receive points against their DMCA score.

This system will be paid for through fees by websites and copyright holders

Primary funding for the website will be provided by website owners and copyright holders, although initial funding may have to be provided through federal taxes and paid back through fees by users of the system.

Websites that provide content and register with the service pay a one-time or annual registration fee to pay for the administration of the DMCA organization.  You can choose not to register and just post your contact information in a readily available place on your website like you do now, but you do so at the risk of not being able to reply to complaints against you and the penalties for failure to respond.

Websites also pay a per-complaint fee.  These fees can start after each website receives a certain number of complaints, so that websites with frequent infringements share more in the burden of cost to maintain the system.  Users who file a significant number of complaints may also be required to pay a small per-complaint fee after a certain number of free complaints.  This means that if you have many thousands of copyrighted works in a catalog, you equally help to pay for the system that protects them.  However, systems will be built over time to help protect frequently infringed upon material more proactively.

Responses to DMCA takedown notices are handled through the same system

Websites that receive a complaint issued through DMCA.org follow the standard procedures under the DMCA.  This includes taking down the allegedly infringing content and notifying the website user who uploaded the content that it has been removed.  The website notifies the user referencing a case number and unique login credentials on DMCA.org that the user can use to appeal against the complaint, potentially anonymously.

Allegedly infringing website users are given access and ability to address the complaint through DMCA.org.  At DMCA.org there is a process for submitting documents verifying ownership of, or rights to, the content.  Just as they do privately now, websites who receive an appeal from a user review provided documents to assess whether the original user is the copyright owner and make their own call as to whether they want to reinstate the content.  If they do reinstate the content, the complainant is issued a notification that the website has determined their complaint to be invalidated by the content provider.

If complainants believe that documentation provided by a website user does not invalidate their claim to copyright they may appeal the decision by uploading their own supporting documentation.  Again, this is already how it’s supposed to work and websites will be responsible for reviewing this material (if they care enough to keep the content on their website) and making a determination as to whether to enforce the takedown or keep the content reinstated.  Their actions are indicated in the system and both parties informed accordingly.

Parties may request contact information for infringing users or complainants after the sequence of appeals, for use in pursuing recourse through normal legal avenues.  (Copies of documents provided to DMCA.org in violations or appeals resulting in legal recourse can be provided to the court without a subpoena.  Not sure about this, though.)

Users with concerns regarding suppression of free speech may appeal through a separate anonymous process, or websites may appeal on their behalf

Users who believe that they are being targeted for suppression of unpopular or other non-copyrighted free speech may appeal on this basis.  Since the takedown notice is sent to them by the website owner (as websites already do now) using whatever credentials they used to upload the content to the website, this does not need to require that the user be registered with, or identified by, DMCA.org to reply.  In fact, someone only needs to register with DMCA.org if they want to file a complaint or upload proof of copyright ownership to appeal against a complaint.

Free speech appeals do not require supporting documentation or other personally identifiable information.  You simply indicate that you believe the complainant does not have a claim and is trying to suppress unpopular or other opinions.  A notification that someone has requested a free speech exception is sent to the website owner for review.  The website owner is responsible for reviewing the content and indicating whether they also believe it falls under non-infringing free speech.  If they believe it qualifies, they can make the content available again right away and someone from the free speech division of DMCA.org looks at the content and decides if they believe it falls into this category.  Additionally, websites that often engage in free speech, receive mostly unfounded complaints and want to protect their users may appeal the complaint on their behalf.  Appeals filed by the website are treated the same as appeals by users, except that frequent baseless appeals for free speech exceptions by websites result in penalties against the website.  Websites can also setup their own process for users to request an appeal through them, if they deal with this frequently.

For content that falls into the category of protected free speech, the complainant is notified that the user has appealed under free speech exceptions and that the burden of proof is now on the complainant to show that this is copyrighted or otherwise infringing content.  This process is similar to those who would like to appeal after a website user has provided documents “verifying” ownership.  If the complainant uploads documentation supporting their claim to the content, the website owner is notified and will review the information and make a determination as to whether the claim is legitimate.  If they believe it is, they may remove the content.  If it is not, they can keep the content up but must indicate that they are doing so under the free speech exception, which escalates the claim to the free speech division of DMCA.org for additional review.  With supporting documentation from the complainant in hand, they ultimately make their best judgment.  If they believe it is not protected by free speech, the company receives a strike indicating what is perceived to be a non-free speech and unresolved violation.  The company can take this content down to resolve the violation, or take a stand and leave it up if they so choose.

There could be a similar process and exception for fair use.  Also, for complaints that appear to be patently false efforts to suppress free speech or fair use cases, DMCA.org may flag the user account as abusive.

Information regarding takedown notices is publicly available and transparent

Most of the information regarding copyright violations is available to the public.  You can see at a high level how many violations a company/website has, how many of those complaints were handled by takedown, how many times content was reinstated, and how many times it was removed again after further documentation.  You can see how many website users requested free speech exceptions, or had them requested on their behalf by the website, and how many were determined to be exceptions by the free speech division of DMCA.org.  Fair use cases are also outlined.

In the case of unregistered sites with multiple strikes (on the way to being blocked), you can also see what contact information has been located for the website by DMCA.org staff, the dates and number of attempts to contact that website, and any other information making it clear that DMCA.org has done as much as they reasonably can to make the website aware of their impending censorship.  Users, advocacy groups and others can do their part to contact infringing websites or to provide information intended to help DMCA.org locate and contact sites in jeopardy of shut down.  Websites that are non-contactable, do not respond to contact, and do not qualify as a free speech haven risk being shut down, but the process is transparent and concerned citizens can do their part to notify such site owners.  For an important site to be totally non-contactable, not be alerted by concerned citizens, and to not qualify as a free speech exception would take a miracle.

Each website has a DMCA score based on complaints, response times and repeat violations, and websites with “mass infringement” status may be blocked

Each website will maintain a DMCA score.  I’m not going to determine the exact basis for the score here, but first and foremost I believe it would be relative to the size and popularity of a site, the ratio of violations to legitimate content or free speech value, the responsiveness of the site to complaints, and attempts to monetize copyrighted content.

Sites can keep their score reasonably low by providing much more non-copyrighted, or non-infringing content than infringing content.  However, this content must also account for a significant amount of usage.  A site with a bunch of filler, garbage content that nobody cares about cannot hide behind such content if the majority of their actual usage value is in providing content that infringes.  Again, I am not going to try to provide a full-proof system for monitoring usage here either, but I believe such data is visible enough for large sites that are a threat to content owners for us to make a relative judgment about it, and at least put them in front of the DMCA.org board of directors for review.

Additionally, sites can keep their score low by responding to takedown notices quickly, and valid free speech exceptions do not count against their score.  The largest contributor to earning a “mass infringement” score is repeat violations for the same content, and attempts to monetize infringing content.  As a website allowing user generated content, blocking users with repeat infringement, blocking easily identified copyrighted content, or blocking infringing content that is repeatedly uploaded to your site should be priority number one and the easiest way to prevent having a high DMCA score.

If a website’s score exceeds a certain point they run the risk of being blocked at the DNS level.  I am sure there will be opinions that maintaining the systems to do this present the risk of non-copyrighted free speech censorship.  However, if choosing our DMCA.org board members is an effective process involving trusted representatives from technology, media and free speech advocacy groups, and blocking sites requires not only having a failing DMCA score, but also approval by a majority of the board members of DMCA.org, it would seem to be a highly effective and, most importantly, transparent process for blocking sites whose largest purpose is distributing illegal copyrighted material.

Keep in mind that before a site would be considered for shut down, it would:

  • Be large enough or used enough to be a threat to content owners.  A site with 20 complaints in total would not be big enough to worry about.
  • Provide access to copyrighted material significantly more than non-copyrighted material (according to amount of content and usage)
  • Provide little to no free speech value
  • Fail to respond in a timely manner to copyright takedown notifications
  • Repeatedly be in violation for the same content
  • Repeatedly be found monetizing infringing content
  • Have a transparent, understandable score that indicates that the site infringes on copyright, fails to respond and repeatedly violates copyright more than it provides value in other meaningful ways
  • Be reviewed and found to be engaged in “mass infringement” by the board of directors of DMCA.org
  • Fail to provide a plan for getting into compliance
  • Have its DMCA history be made publicly available for a specific amount of time, with a process for civilians and advocacy groups to petition for a stay for sites that provide significant free speech or other value

Sites may petition for a stay designed only to help them get into compliance

Sites that provide significant non-infringing value to society and consumers can petition for a stay by the board.  This is designed so that infringing sites that also provide significant real value but scale quickly can be given a very specific period of time to build the proper systems for better compliance.  Sites that get into compliance and address outstanding violations can bring their score down below the shut down threshold and can continue to receive a stay by submitting information about their efforts and further plans to address violations.  It would take a vote by the board to exempt a site, which means tech and free speech could out-vote media, and media and free speech could out-vote tech, etc.

One of the most important things to note is that sites whose purpose is to share valuable, non-copyrighted information should not mind taking actions to prevent infringement on their websites.  Additionally, sites providing significant social value who have trouble with copyrighted material but are making efforts to get into compliance can keep their score slightly lower by erring on the side of caution and not monetizing high-risk content while they’re getting into compliance.  Reducing profit from infringing content, even if it means reducing profit from some non-infringing content, is the price to play ball for sites with a lot of problems with copyright enforcement.  There could also be fines or escalating fees for sites that are making strong efforts but continue to fail at enforcement.

Free speech advocacy groups and concerned citizens will be able to monitor upcoming site shutdowns and petition for an exception on behalf of a website with high value to society

Since some websites allowing users to express free speech may also put themselves at risk for responding to free speech takedown notices, they do not technically have to respond.  Before a site can come close to being shut down, a significant number of the infringement claims must be review by the free speech division of DMCA.org to see if the site is not responding out of fear of identification.  Additionally, the site’s score, takedown notice history and other information would be made publicly available and they could be petitioned by free speech organizations and concerned citizens for a stay without compliance.  This would be a rare exception granted to sites who provide far more value and access to free speech content than copyrighted content, who cannot respond to copyright violations using DMCA.org out of fear of identification, retaliation or other consequences.  These sites would still be required to address the majority of violations, but would be exempt from clearing such violations using the system.

Centralized resources can be provided for websites to use for compliance assistance

Just as Youtube has built a system for scanning its videos for copyrighted music, DMCA.org could provide a centralized database of certain copyrighted material with similar scan and match functionality, which websites can use to fingerprint and check content against.  Perhaps only after the same copyrighted work has been infringed upon by multiple sites would it be uploaded to the system, so only copyright owners with very popular material that is frequently violated would need to upload that content to the system, or a website that receives a 2nd or 3rd complaint for the same content can upload it to help in their own prevention.  Perhaps there is a fee for uploading content that helps to offset the cost of hosting, storing and providing such services.  You could also have much of the tools needed to implement this be open-source, to tap into the technology community that has such a vested interest in helping good companies stay in compliance without significant cost burden.

Users abusing the DMCA system with takedowns of content that they do not have a claim to can be fined under the current DMCA rules for abuse

Given that websites aren’t the only people who abuse the DMCA, and I still haven’t thought of a reason to let complainants file anonymous complaints, it seems there ought to be some reasonable process for validating a complainant.  If a user files frequent complaints about content they have no claim against, they could be fined for abuse under the (new) DMCA.  New or “unverified” users’ complaints may also be easier to refute or carry less weight against a DMCA score.

Sites with content frequently falling under fair use may be granted more leniency or turnaround time for responding to claims

It seems that sites who receive complaints that are later determined to fall under fair use, such as educational, satirical or other websites, may have a heavier burden in policing copyright violations, or may have more appeals filed that do not include proof of ownership, but simply a statement that the content falls under fair use.  At first there should be a regular process for dealing with these complaints, but after a site is determined to, more often than not, fall under fair use, perhaps they are granted more time to deal with such complaints.

This is probably far from a perfect solution, but as someone who owns a media company providing almost exclusively copyrighted material for which we have licenses to perform it, we run more risk than a lot of other companies.  The plan outlined above seems extremely reasonable to me as a website owner, and also as a copyright owner.  The great thing about it is that I don’t have to police or know about every single site to protect my content.  While I might find my content on some sites and file complaints, others find it and file against other sites.  Overall we work toward a more compliant internet together, with a transparent process in place and a high threshold for ever censoring a website.  Further, if copyright owners find themselves reporting their content about the same organization multiple times, the 3rd, 4th and Nth violation start really adding up and contributing to a site’s DMCA score, putting it on the path to being shut down.  Sites receiving violations like this know where they stand and can take action to prevent this issue.  Even if that means taking a step back, and not accepting more content in the meantime, that’s not unreasonable in my opinion.  Minimally, making no effort to monetize this content helps the company show good intention, and everything is reviewed by an independent board of diverse officials.  Lastly, smaller sites, particularly foreign sites, might find it harder to comply, but generally speaking will be too small to qualify for being blocked.

I’m sure people will find flaws with this process as well, but at least I can say I did my part to push the dialog forward.  I hope, at minimum, those who find my opinions contrary to their own, will at least appreciate the effort.

Joey Flores
CEO, earbits.com
[email protected]
Listen at www.earbits.com
Connect with us on Facebook: www.facebook.com/earbits
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Twitter: @earbits

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