Professors Sprigman and Lemley wrote an excellent opinion piece in the LA Times explaining the value of the DMCA’s notice-and-takedown process. Hollywood and other BigContent groups have been pushing for an alternative “notice and staydown” measure that would require content hosts to invest in expensive technology to watermark/monitor content.
As the professors note:
That sounds good in theory. But consider it in just a bit of depth and its appeal quickly falls apart. First, just because one user is infringing on a copyright doesn’t mean that a second user who posts the same content is also infringing. The second person may be licensed or making a sort of use — for example, a non-profit educational use — that the law often treats as permissible. Notice and staydown would guarantee that such perfectly legitimate uses would get blocked.
But there’s a worse problem. Notice and staydown effectively kills the chance of any startup or entrepreneur to compete with established players such as YouTube and Facebook.
Copyright protection is as important to entrepreneurs as it is to established production companies. At the same time, the DMCA’s self-monitoring approach to internet copyright protection, while imperfect at times, provides a good balance between rights-enforcement and cost-effectiveness.
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