The Digital Millennium Copyright Act (DMCA): even if you don’t know exactly what it is, if you work in Library Land, chances are you’ve at least heard it talked about in passing at some point in your career. There’s a reason for that: Libraries are all about public access to content, and the DMCA is a federal statute that includes a provision that offers recourse to those facing challenges to the dissemination of content online by sometimes-over-zealous rights holders.
Section 512 of the DMCA gives online service providers (OSPs) – entities that offer services online, including libraries that provide public access computers – safe harbor against liability for the copyright-infringing actions of their users. This safe harbor comes with a caveat. To enjoy it, OSPs must comply with a notice and take down process in dealing with content that rights holders identify as infringing. The process includes the opportunity for users (many of which are utilizing OSPs’ services to post content they themselves created) to push back against rights holders’ infringement claims.
The process is a win-win, in that it looks out for the legal and economic interests of OSPs and OSP users alike. Or maybe it’s a win-win-win…I think it’s fair to say the process makes a victor of rights holders, too, seeing as it reduces the likelihood they’ll have to expend resources fighting alleged infringers of their copyrights in court.
You may be wondering…Why bring this up now?
Current trends in online infringement disputes reveal that, as useful as the DMCA’s notice-and-take down process is, it at least needs to be re-examined, and at most needs to be re-imagined, to function properly in the modern marketplace. Nowhere are these trends clearer than in the online market for 3D designs and 3D-printed products. So, when the U.S. Copyright Office recently solicited comments assessing how well copyright functions in the online environment, 3D printing firms that host user-generated content – Shapeways, MakerBot and MakerBot’s parent company, Stratasys – joined several other online merchants in offering their opinions on the efficacy of the DMCA’s notice and take down process as currently constituted (Shapeways is the world’s largest online 3D printing marketplace, and MakerBot is a prominent consumer-grade 3D printer manufacturer that also offers a marketplace for sharing 3D designs).
The crux of these companies’ comments is that the notice and take down process is being widely used in a way that strips OSPs like Shapeways and MakerBot of the infringement immunity it was designed to provide them, and in turn, prevents posters of content that lives on these sorts of platforms from standing up to rights holders.
What are the specifics of this critique?
Rights holders are widely issuing take down notices to OSPs that describe trademark grievances, or some combination of trademark and copyright grievances. This is especially true among OSPs in the 3D printing marketplace. Shapeways reports that 76% of the copyright take down notices it receives are paired with trademark complaints.
The problem with this is that copyright and trademark are two discrete systems of protection. Broadly speaking, the former protects works of creative expression, while the latter protects words, phrases, symbols, and more that help consumers identify a product’s origin and distinguish it from those of other sellers. The section 512 notice and take down process applies exclusively to copyright. It has nothing to do with trademark. Why would it? It’s pursuant to the Digital Millennium Copyright Act, after all – not the Digital Millennium Trademark Act (no such Act exists). So, anytime Shapeways or MakerBot receives a take down notice that even touches on trademark, they know that they are not immune from liability related to the content described in the notice.
As a result, they are all but compelled to comply with such a notice for fear of liability – and because 512 doesn’t address trademark infringement, the alleged infringer has no recourse to challenge to the take down. In essence, take down turns into “stay down.” This scenario is at best annoying, and at worst devastating to the alleged infringer. He or she may just post content for fun, but also may make a living selling content online.
Stratasys, MakerBot and similar firms also note that even if they were willing to take the massive risk of re-posting content that was the subject of a notice mentioning trademark, they’d then risk receiving a repeat notice, which would open them up to legal ramifications for not implementing a reasonable repeat infringer policy.
As you can probably tell, this is all a bit messy. But, the upshot is that it would behoove legislators, regulators and the courts to study the DMCA’s 512 notice-and-take down provision with a view to creating policy that establishes similar checks and balances between OSPs, OSP users and rights holders under trademark law. Without such policy, OSPs will yield fewer economic opportunities for online merchants, and less overall opportunity for the dissemination of content online.