RIAA chief says DMCA is “largely useless” to combat music piracy

Cary Sherman says DMCA has been "subverted into a discount licensing system."

David Kravets – Sep 25, 2015 2:50 pm | 282

Cary Sherman, the chairman and CEO of the Recording Industry Association of America, has some choice words about the current state of US copyright law. He says that under the Digital Millennium Copyright Act, rightsholders must play a game of whack-a-mole with Internet companies to get them to remove infringing content.

But that "never-ending game" has allowed piracy to run amok and has cheapened the legal demand for music. Sure, many Internet companies remove links under the DMCA's "notice-and-takedown" regime. But the DMCA grants these companies, such as Google, a so-called "safe harbor"—meaning companies only have to remove infringing content upon notice from rightsholders.

This has allowed legal streaming services to hold the music industry hostage, Sherman said in a recent Forbes editorial.

"Copyright law provides a 'notice and takedown' system theoretically intended to deal with such theft," he said. "In exchange for a legal 'safe harbor' from liability, online service providers must deal with instances of theft occurring on their site or network when notified. Unfortunately, while the system worked when isolated incidents of infringement occurred on largely static web pages—as was the case when the law was passed in 1998—it is largely useless in the current world where illegal links that are taken down reappear instantaneously. The result is a never-ending game that is both costly and increasingly pointless."

Sherman added:

Compounding the harm is that some major online music distributors are taking advantage of this flawed system. Record companies are presented with a Hobson’s choice: Accept below-market deals or play that game of whack-a-mole. The notice and takedown system—intended as a reasonable enforcement mechanism—has instead been subverted into a discount licensing system where copyright owners and artists are paid far less than their creativity is worth.

On Wednesday, for example, Ars told a story of songwriter who says he made $5,679 from 178 million Pandora streams.

Sherman went on to say that the notice-and-takedown system is "broken":

But while the music industry has embraced new technology and business models, the beneficiaries of this broken system cling to this antiquated law that was enacted at the turn of the century, well before the modern Internet and today’s most advanced (and unimagined) technologies.

This anti-DMCA argument comes at a time when there's renewed discussion at the federal level about whether Internet companies should play cops. Consider that the US Senate earlier this week scrapped a proposal, adopted in secret, requiring e-mail providers, social media sites, and other Internet companies to report online terrorist activity. Sen. Ron Wyden (D-Ore.) said it wasn't a good idea to "create a Facebook Bureau of Investigations."

It sure seems like Sherman wants to create, at a minimum, a Facebook Bureau of Copyright Investigations.