George Mason University Antonin Scalia Law School

Middle Class Artists Want a DMCA System That Works

The following guest post comes from Rebecca Cusey, a second year law student at George Mason University School of Law.

By Rebecca Cusey

Rebecca_Cusey_HeadshotMason Law’s Arts & Entertainment Advocacy Clinic filed comments today with the U.S. Copyright Office detailing the frustrations and futilities experienced by everyday artists as they struggle with the DMCA system to protect their copyrights online.

Terrica Carrington and I wrote the comments on behalf of middle class artists, that group of creative professionals who invests in and lives off their art and yet does not have the kind of revenue stream or corporate backing of more well-known artists. These photographers, filmmakers, musicians, and other artists are squeezed between infringement that directly affects their ability to pay for things like a mortgage or orthodontics bill and the exorbitant cost of using the notice and takedown system to fight infringement.

Terrica and I spoke with four artists: Filmmaker Ellen Seidler, news photographer Yunghi Kim, musician Blake Morgan, audiovisual creator David Newhoff. These artists make works of value and have followings, and thus infringement. They make a profession of their art.

A middle class artist must do it all on her own – find infringement by hours of searching the web, compile lists of infringing posts on each site, navigate each site’s confusing DMCA notification system, and send takedown notification after takedown notification. And that’s all just sending the notifications. Monitoring to see if the infringing content has been removed or if it has simply been uploaded in another spot is a whole other job in itself.

The artists with whom we talked said it was not unusual in the least for a song, photograph, or film to be posted illegally in a thousand places, even tens of thousands of places. Finding infringement and sending notices took hundreds and thousands of hours, hours they could have spent taking photographs, making movies, or writing songs.

After all the time spent fighting infringement online, they felt the task was futile because the content simply reappeared, sometimes in a different place on the same site, other times because of counternotices filed with the ISP hosting the content claiming to have the right to post it.

These artists felt the notice and takedown system mandated by Section 512 of the Copyright Act was both all-consuming and futile, all-consuming because it ate hours upon hours and futile because it yielded little to no results. Ultimately, all of them decided to stop spending time trying to enforce their copyrights under the procedures of Section 512. It simply was not worth it.

Our comments were filed in response to a request by the U.S. Copyright Office for comments on the effectiveness of Section 512 in fighting infringement online. The Copyright Office wanted to know in particular if the provisions of Section 512 balanced the needs of ISPs to host content with the needs of copyright owners to control their work.

Middle class artists feel the balance is off and the scale tipped in favor of ISPs. These artists do not object to bearing some responsibility for protecting their copyrights online. They simply want a system that works.

To read our Section 512 comments, please click here.