UFC COO Publicly Pushing 'Notice And Stay Down' Reforms To DMCA, Despite That Being Horrible For Almost Everyone
from the fight! dept
In the United States, the DMCA has a “notice and takedown” process. Section 512(c) outlines all of this and provides details on what obligations service providers, such as websites and social media platforms, must meet in order to retain their safe harbor provisions. This summary from Wikipedia is a good primer:
The Online Copyright Infringement Liability Limitation Act, passed into law in 1998 as part of the Digital Millennium Copyright Act provides safe harbour protection to “online service providers” for “online storage” in section 512(c). Section 512(c) applies to online service providers that store copyright infringing material. In addition to the two general requirements that online service providers comply with standard technical measures and remove repeat infringers, section 512(c) also requires that the online service providers: 1) do not receive a financial benefit directly attributable to the infringing activity, 2) are not aware of the presence of infringing material or know any facts or circumstances that would make infringing material apparent, and 3) upon receiving notice from copyright owners or their agents, act expeditiously to remove the allegedly copyright infringing material.
I added the bolded section for emphasis. Why? Well, many in the copyright industries hate the notice and takedown system because it requires them to notify service providers of individual cases for infringement. That requires work, of course. Work that these service providers very much do not want to do. Instead, many propose a notice and stay down system. What that would do would be to allow the copyright holder to essentially notify a service provider of infringing material once, after which it would be up to the service provider to do the policing of that content on their own sites. This was recently exemplified by the UFC’s COO, Lawrence Epstein.
The DMCA is a “very reactive type of protocol,” Epstein notes, since the law places the onus on the copyright holder to act. This presents a timing problem for a live sports broadcast. The highest value for that broadcast—especially one distributed through a PPV arrangement—is when the event happens. A notice and takedown can take several minutes, even a half hour. By the time an illegal stream is removed, it could be too late. The Poirier-McGregor match lasted only about five minutes before McGregor suffered a leg injury and Poirier was credited with a TKO victory.
“It’s not an appropriate remedy,” Epstein charges, adding that the “vast majority” of the piracy is taking place on “big platforms like Facebook, YouTube and Twitter.” Epstein also stresses that “we see the same people doing it. There are repeat offenders who aren’t deterred by the process.”
The UFC would like to see the DMCA amended to include a “stay down system” whereby the copyright holder need only notify the service provider of infringing material. It would then become the obligation of the provider to monitor repeat infringers and prevent them from engaging in illegal streaming and other piracy on the provider’s platform. “These big platforms have to take responsibility for what happens on their platforms,” Epstein asserts. “It can’t be reactive.”
For context only, the latest UFC PPV event raked in $125 million. And, to be clear, I can sympathize with Epstein on the concept of how this all works for live-streamed, pay-per-view broadcasts. It’s not the same policing a movie on the internet as it is policing infringing live-streams.
But, and this is the key part, that is a business model issue, not an issue requiring the wholesale retrofit of the DMCA. Put another way, if the notice and takedown system is overall beneficial for most of the public interest, altering it is not an appropriate remedy simply because it isn’t working for the UFC.
And there are very good reasons why a notice and takedown system is better for nearly everyone than a notice and stay down system. For starters, while Epstein invokes the “big players” like Facebook and the like, those big entities are the ones that at least would stand a chance of operating in a notice and stay down system. They have the money, tools, and people to throw at the problems such a system would create. But what about smaller companies and sites? Startups? How in the world are they going to police other people’s content for them? They won’t and the liability such a system would create will keep startups from every… you know… starting up.
Beyond that, it’s not like the “stay down” part works well in practice even when tried. The uploading of content by one person that is infringing does not make the uploading of it by another infringing. Viacom found that out directly by suing Google over a bunch of YouTube videos… that Viacom staff uploaded on purpose. In an effort to stop piracy, Viacom attempted to stop promotion of its own material by its own staff. If the companies responsible for content can’t properly police copyright infringement of that content, what hope do service providers have?
And, as one professor explains to Yahoo! Sports, there is all of that plus issues of fraud and censorship that suddenly are opened up by a stay down system.
Ryan Vacca, a copyright law professor at UNH Franklin Pierce School of Law who has represented clients in the sports and entertainment law industries, agrees that placing the burden on copyright owners to police copyrights creates persistent challenges for owners in a world where streaming has become so omnipresent. “Given the enormous amount of copying and performing that occurs online,” Vacca explains, “it’s understandable that content owners want to shift that burden to other actors in the online ecosystem.”
Yet Vacca also sees “countervailing concerns” that could arise ”if the law is changed to make it too easy to have materials taken down.” He cautions that some copyright owners make infringement claims “not to protect their copyright, but to censor legitimate uses of copyrighted materials, such as critical commentary or parody.” Vacca adds that placing the burden on platforms “has the potential to disadvantage startup competitors by imposing additional costs on them that are more difficult to absorb than for established companies such as Facebook, Twitter and YouTube . . . This could have a negative effect on innovation for online platforms.”
So, the open question in summary is: should we really be altering the DMCA that has allowed for so much innovation and flourishing within the online ecosystem just so the UFC can possibly make even more than the $125 million per event it’s making now? That feels like a question with an obvious answer.