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Introduce Statutory Damages for DMCA Abuse, Says WordPress

Posted by: , 18:14 AEST, Thu April 7, 2016

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Company behind WordPress wants legal punishment for copyright holders who abuse the DMCA system
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Tired of having to deal with invalid DMCA takedown requests, Automattic, the makers of WordPress, wants changes made to the law that punishes those that repeatedly submit bad requests.

As part of public consultation on changes to the DMCA, Automattic has submitted their take on the issue, and based on their experiences, it appears that invalid DMCA requests are a big problem for service providers like Automattic.

The problem, Automattic says, is with the overuse of automated bots in identifying potential copyright infringement. These bots often fail to take into account fair use, which can be a much more common occurrence on personal blogs.

"While we recognize that the use of automated tools may be necessary with respect to some types of infringement on some types of websites, personal blogs are not the proper targets for enforcement robots," writes Automattic's General counsel Paul Sieminski.

"Copyright holders have an obligation to consider fair use before sending a takedown notice, and robots simply cannot tell fair use from foul in any but the most obvious circumstances," Sieminski explains.

Invalid takedown requests are not just a problem being faced by Automattic, it's a much larger problem that affects almost all medium to large Internet businesses. A recent study found that almost a third of submitted takedown requests may be invalid, or at the very least, questionable.

But while Companies like Automattic face serious consequences if they do not comply with DMCA takedown requests, there is currently no punishment for those that habitually submit invalid requests. This, Automattic says, should change and that statutory damages would be the best way to address this issue.

"Damages from abusive notices of claimed infringement can sometimes be difficult to quantify. Thus, in order to further the goals of compensation and deterrence, statutory damages for abusive notices of claimed infringement and abusive counter notifications could be added either to section 504 or to section 1203," writes Sieminski.

Automattic also feels that the use of bonds should be extended to copyright holders seeking to use the DMCA takedown regime.

"Such a bond may be the only way to ensure that those who cause damage via misrepresentations are called to account for their misdeeds," says Sieminski.


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