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Rogue Sites Legislation and the DMCA
Author:  Paul Hortenstine
Date:  11/15/2011

There has been lot of discussion recently about important rogue sites legislation in Congress.   In particular, there has been debate about how this legislation would change current copyright law, especially the Digital Millennium Copyright Act (DMCA).  

An important part of the DMCA gives legally operating websites safe harbor when they remove material that infringes on copyrights after receiving notification.   Rogue sites legislation does nothing to legally operating websites.  It continues to give safe harbor to legally operating sites under the DMCA.   Rogue sites legislation targets foreign sites that are trafficking in stolen and counterfeit goods and content. 

On Wednesday, the House Judiciary Committee will hold a hearing on rogue sites legislation, the Stop Online Piracy Act (H.R. 3261).  This bill and similar legislation in the Senate, the PROTECT IP Act (S.968), will preserve American jobs and target foreign websites that steal and profit from counterfeit goods and stolen creative content like books, movies and music.  Both bills have bipartisan support and are backed by a broad coalition of business and labor groups. 

Today, a group of companies—AOL, eBay, Facebook, Google, LinkedIn, Mozilla, Twitter, Yahoo and Zynga—released a letter opposing rogue sites legislation that specifically cited the DMCA safe harbor provisions:

“We are very concerned that the bills as written [H.R.3261 and S.968] would seriously undermine the effective mechanism Congress enacted in the Digital Millennium Copyright Act (DMCA) to provide a safe harbor for Internet companies that act in good faith to remove infringing content from their sites.”

And on Monday, Markham Erickson, Executive Director of Net Coalition, wrote in The Hill’s Congress Blog on rogue sites legislation and the DMCA, stating, 

“Both bills gut the Digital Millennium Copyright Act (DMCA), which for over a decade has helped Internet companies grow and flourish.  The DMCA is one of the big reasons companies like Facebook, YouTube, and Twitter weren’t crushed in their early days by harassing lawsuits.”

The DMCA and other copyright laws have given us the Internet of today, alive with innovation, commerce and free speech.  But rogue sites legislation does not undermine or “gut” the DMCA.  Again, rogue sites legislation does nothing to change the DMCA’s safe harbor provisions, which will continue as law if rogue sites legislation is passed. 

Rogue sites legislation targets foreign rogue sites.   It goes after sites that are dedicated to pirating copyrighted works and peddling counterfeit goods.   Legally operating sites will continue to have the same protections they have under DMCA.

What is missing from this debate is how the DMCA is ineffective in targeting foreign sites dedicated to selling pirated content and counterfeit goods.  The DMCA is often effective in removing copyrighted material from legitimate websites but it is not effective in targeting foreign rogue sites that are designed to sell pirated content. 

The DMCA can be an effective tool in notifying website operators of copyright infringing materials made available through their websites.  Compliance, of course, varies.  The DMCA is most helpful to copyright holders only in cases in which the website is not primarily designed or dedicated to infringing activity.  Legitimate websites with low levels of copyright infringement can be managed through DMCA notices and adherence to a reasonable DMCA policy. 
 
However, rogue websites that are designed to allow users to easily and reliably locate copyright infringing material commonly ignore DMCA requests or only comply after long periods of time after illegal files are repeatedly viewed.  The DMCA also does not fare well in addressing the large scale rogue websites that host millions of files and receive hundreds of thousands of uploads daily.  Copyright holders simply cannot locate all the illegal files uploaded to these websites despite costly and time consuming efforts to scan the Internet for these files.  The illegal files that are reported using the DMCA are commonly re-uploaded to the same websites within minutes and without restriction.  Many large scale rogue sites even furnish illegal uploaders with notice that files have been taken down or tools to check whether their files have been taken down so that the same files can be re-uploaded.  This creates a situation where a website can act on DMCA notices, but still enjoy high levels of copyright infringement and the resulting profit from this Internet traffic.

So, rogue sites legislation creates new tools to go after these foreign rogues sites dedicated to criminal activity, which the DMCA has had limited success in targeting.  Rogue sites legislation targets foreign online criminals and their access to the U.S. market.  Operators of legitimate websites should welcome this legislation.