by Danielle Ely
The National Music Publishers’ Association (“NMPA”) works to protect, promote, and advance the interests of the 500 major and independent music publishers it represents. NMPA runs an antipiracy program focused on ensuring that websites, mobile apps, and other platforms using music content are properly licensed. A major component of the antipiracy program is sending removal requests to services providing unlicensed content. While NMPA’s antipiracy program is continuously asserting the rights of content owners against unlicensed hosts of copyrighted material, this process is hindered by the laws governing copyright online.
In the United States, the Digital Millennium Copyright Act (“DMCA”) regulates certain copyright issues on the internet. If service providers and websites that host user-generated content comply with a few simple provisions dictated by the DMCA, then they cannot be held liable for infringing material posted by their users. Under the DMCA, if a copyright owner believes a website is displaying material that infringes its copyrights, it must send the website a takedown notice that, at a minimum, identifies the name of the work and the URL, and certifies that the sender is the owner of the copyright in question. The website must then remove the material “expeditiously.” If the user who posted the material believes that he has a right to post the material, the user may send a counter-notice to the copyright owner in order to dispute the takedown. If the user sends a counter-notice and the copyright owner believes the user does not have the rights to post the content, the copyright owner has 10 days to file a lawsuit in federal court to challenge the counter-notice. If the copyright owner does not file a federal lawsuit, the material is restored to the website after the 10-day period is over.
This system places the vast majority of the burden on copyright owners to actively police websites in order to ensure their content is not being illegaly displayed. Meanwhile, website hosts generally have no duty to confirm that the content on their website is not infringing. This means that even when a piece of copyrighted sheet music is removed due to a DMCA takedown notice, there is nothing to safeguard against another user instantly uploading the exact same piece.
Additionally, if an uploader disputes a copyright takedown notice, the only recourse the copyright owner has is to file a lawsuit against the uploader in federal court. This is an extremely expensive undertaking, and is beyond the means of most individuals and companies. This ineffective solution leaves copyright owners with essentially no method to fully guard against the unlawful display of their works online.
For NMPA, this takedown notice system means that our organization must repeatedly send takedown notices to the same websites in order to remove infringing content. To provide an idea of the scale of this problem, in the first two months of 2017 alone we have sent over 565 takedown notices for infringing sheet music posted online. This number represents just a small fraction of the sheet music takedowns that we anticipate sending over the course of this year.
The DMCA surely impacts the bottom line of sheet music retailers in a negative way by allowing greater access to pirated sheet music online. The United States Copyright Office is currently reviewing the effectiveness of the DMCA, and Congress has shown some interest in amending these laws. However, neither has produced a concrete plan for change. Until the laws are revised, copyright owners will continue to bear the greater burden in ensuring that their works are not unlawfully available online.