The INDUCE Act (IICA) and the Notice and Takedown Provisions of the DMCA

Continuing my series on how various aspects of the copyright law may interact with the INDUCE Act (née IICA), this post will address the "notice and takedown" provisions of the Digital Millennium Copyright Act ("DMCA"), codified at 17 USC 512. Now the notice and takedown provisions of the DMCA have already had more than their fair share of controversy, including some rather clear cases of abuse. See, EFF's Unsafe Harbors: Abusive DMCA Subpoenas and Takedown Demands and Chilling Effects's DMCA Safe Harbor Provisions. Guess what. If the INDUCE Act passes, things may get a whole lot worse. Read on...

Basically, well, since I'm lazy, I'll just cut and paste from the Chilling Effects website:

In the online world, the potentially infringing activities of individuals are stored and transmitted through the networks of third parties. Web site hosting services, Internet service providers, and search engines that link to materials on the Web are just some of the service providers that transmit materials created by others. Section 512 of the Digital Millennium Copyright Act (DMCA) protects online service providers (OSPs) from liability for information posted or transmitted by subscribers if they quickly remove or disable access to material identified in a copyright holder's complaint.

In order to qualify for safe harbor protection, an OSP must:

• have no knowledge of, or financial benefit from, the infringing activity
  
• provide proper notification of its policies to its subscribers
  
• set up an agent to deal with copyright complaints

While the safe harbor provisions provide a way for individuals to object to the removal of their materials once taken down, they do not require service providers to notify those individuals before their allegedly infringing materials are removed. If the material on your site does not infringe the intellectual property rights of a copyright owner and it has been improperly removed from the Web, you can file a counter-notice with the service provider, who must transmit it to the person who made the complaint. If the copyright owner does not notify the service provider within 14 business days that it has filed a claim against you in court, your materials can be restored to the Internet.

But what does section 512 actually say about what materials can be requested to be removed? Obviously, directly infringing material can be removed. However, section 512 also provides for the removal of material that is "the subject of infringing activity." What does that mean? If the INDUCE Act passes, I think it could mean that software that has been found to "induce" infringement is the proper object of a section 512 notice and takedown request because it is "the subject of infringing activity." It may not be the subject of infringement, but of "infringing activity," whatever that means. In other words, a copyright holder could request that websites like Download.com stop hosting copies of P2P filesharing software.

Of course, one of the wonderful (sarcasm) things about section 512 is that the copyright holder requesting removal of files doesn't have to prove that the files are infringing (or the subject of infringing activity) in order to get them taken down. The copyright holder merely has to claim "a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law." Well, if you are saying that a particular type of software "induces" infringement, then that would seem to be covered by "use of the material in the manner complained of is not authorized by the copyright owner,... or the law."

Another problem with section 512 is that ISPs basically have no incentive to fight these notice and takedown requests. If they don't take down the file, the ISP may be liable for secondary copyright infringement. By taking down the materials, ISPs are sure to avoid liability. Generally, for the ISPs, that is the end of the story as far as they are concerned.

The same incentives would apply with the INDUCE Act. If an ISP received a section 512 notice and takedown request targeted at an "inducing" file that was claimed to be "the subject of infringing activity" why would the ISP want to fight the letter? If the ISP doesn't take down the file, they may be facing an INDUCE Act lawsuit themselves. If the ISP takes down the file, they avoid potential liability.

Now, perhaps my analysis here is incorrect. I haven't checked the legislative record to figure out what they might have meant by "the subject of infringing activity," which only appears in the Copyright Act in section 512. However, I do think this is a serious question we should be concerned about. Will copyright holders be able to easily force removal of files they don't like through this already abused statute?