It’s a bit amusing watching the entertainment industry and copyright maximalists respond to the a judge’s ruling upholding the basics of the DMCA safe harbors. We already noted Viacom’s initial attempt to respond to the ruling by claiming that the case is about something entirely different than it’s actually about. Take for example, the article a few of you sent in from someone pretending that Viacom probably wanted to lose (uh… yeah). Some are raising some interesting questions however. For example, this article by THREsq questions whether or not user-generated content sites will drop their filters now that the judge said they’re not required. This question seems silly for a variety of reasons. First, I don’t think any company is going to act directly in any way based on this ruling — since everyone knows that there’s still an appeals process to go through. Second, there’s no reason why any company would change what they’re doing because everyone in the tech world already knew that the DMCA does not require filters, even though Hollywood wants to pretend it does. If Congress intended the DMCA to require filtering software, it would have included that in the law.
But, most importantly of all, the reason user-generated content companies won’t dump their filters is the same reason most of them chose to use filters in the first place: because it’s probably good for business for most of them. The entertainment industry and its supporters keep pitching this story as if all of these sites want to fill up all their pages with infringing content. For the most part, that’s not the case. Most of these companies would love to have actual deals and relationships with the big content companies, and those companies have made it clear that if you want to work with them, you need to have filters. So, even if the law doesn’t require filters, for many companies, they know it just makes good business sense. But, it’s rather telling in the way that some of the entertainment industry thinks that they set this whole thing up as an “us” vs. “them” scenario, where tech companies won’t use filters unless they’re absolutely required to by law. It never seems to occur to them that it might be mutually beneficial to have filters. But the studios aren’t really big on understanding “mutually beneficial” scenarios. To them, if anyone else wins, the studio must have lost. Sometimes it makes me wonder if they never got to the part of their statistics classes that explains non-zero sum games.
The THREsq story does make one point at the end that’s a little more interesting. It suggests that those of us cheering on this ruling may now be disappointed because this ruling might lead to more bogus takedowns. Basically, the judge pointed out that Google’s quick response in taking down content as soon as it received takedown notices helped give it safe harbor protections. However, many people (including us here at Techdirt) have, at times, complained about Google responding to takedowns (or content ID matches) way too quickly and not taking fair use or if it was a legitimate claim into account. The suggestion, then, is that to make sure they’re covered by these safe harbors, companies may follow Google’s lead and be quick with the takedown. On top of that, since the ruling reminds copyright holders that the law puts (as it always has) the burden on them to alert a service provider of infringement, they expect this ruling will lead to greater and greater takedown notices.
I have to say that I find this argument entirely unconvincing for a simple reason: to most in the tech industry, this ruling didn’t change a damn thing. The judge effectively said that the DMCA says exactly what most here believed it said all along: if you get a DMCA notice, you probably should take down the content pretty quickly to avoid liability. You can leave it up, but you risk opening yourself up to liability, so for all intents and purposes, most service providers are very quick to pull down content. On top of that, most content companies that fear these sorts of things have already been pretty aggressive on the takedown front, so I don’t see why they’d become any more aggressive. They’re already doing all they can.
Realistically speaking, this ruling doesn’t change much, if anything. It just confirms what was already happening was and remains the correct process. If, somehow, this actually did lead to more takedowns, and many of those takedowns were illegitimate due to fair use (or the copyright claim itself was bogus), well, then, I would imagine that would only provide more fodder for those making the case that the notice-and-takedown provision of the DMCA violates the First Amendment.