Publishers and other content owners broadly criticize the legislation as being out of date and ineffectual, since unauthorized copies of their material frequently continue to resurface online, despite sometimes hundreds of thousands of take-down notices.

Paul Doda, who is the Chairman of the IPA’s Copyright Committee and Elsevier’s Global Litigation Counsel advocates an equitable remedy that can rein in sites described as ‘structural infringers’, while preserving the important liability exemption afforded to neutral host sites.

Paul has detailed his analysis of the problem and recommended remedy in an article titled ‘Distinguishing Common Carriers from Common Thieves’, which was cited in submissions to the US Copyright Office as part of the study. It will appear in Volume 63, No. 3, of the Journal of the Copyright Society of the USA, and is available in manuscript form here, with permission from the journal.


What is the main problem with the DMCA?

The DMCA was enacted at a time when infringing postings were occurring at relatively low volumes on message boards. The legislation did not adequately anticipate, and has not been easily adapted to, the nearly immediate growth of sites and services that exploded the speed and volume of infringements. Certainly, most of these newer sites and services are vital advancements for the internet economy. But some of the sites and services have rendered takedowns completely ineffectual by encouraging the immediate reappearance of removed infringements so that they can sell ads and subscriptions to users drawn by the infringing content. These are the sites now commonly referred to as ‘structurally infringing sites’.

Is the issue as pressing in Europe, with the EU eCommerce Directive, as it is in the US?

The re-uploading problem caused by structural infringers is not limited to the US. However, while certain EU Directives in this area were modelled on the US law, certain EU member country courts have been more willing to interpret various Directives as requiring more from structural infringers to prevent recurring infringements on their sites.

What is the main thrust of your proposed remedy?

One of the dilemmas in this area is how to achieve effective enforcement without broadly penalizing or chilling innovative host sites and their users. The equitable remedy endorsed in the article permits judges to require structurally infringing sites to prevent recurring infringements without affecting non-infringing material or users and without harming good faith sites that are not exploiting loopholes in the law.