Under the current DMCA laws, it is up to rights-holders to provide URLs to Internet service provider such as Google for removal. The same piece of content, such as a unique music track, often has multiple URLs, sometimes thousands of them, but under the current approach rights-holders have to submit each URL for service providers to remove.
Under the "take down, stay down", also known as the "notice and staydown" approach, rights-holders only have to identify the unique piece of work (Justin Bieber's 'Love Yourself', for example), and it's up to service providers to search and destroy all URLs, new and old, for the content.
But The Internet Archive, a non-profit group whose aim is to build an "Internet library" to preserve all web pages and online digital media, says this new approach would be a disaster for the Internet in general.
"We were very concerned to hear that the Copyright Office is strongly considering recommending changing the DMCA to mandate a ‘Notice and Staydown’ regime. This is the language that the Copyright Office uses to talk about censoring the web," the Archive writes on their official blog.
The Archive makes several key arguments in its opposition to the new regime, primarily on privacy and the First Amendment grounds, and on technical and legal issues that would make such a regime a nightmare to implement for sites like The Internet Archive.
The Archive says such a regime would mandate Internet sites and ISPs to continually monitor all user activity on the Internet, and take proactive action take down content "without any form of review, potentially violates free speech laws".
On the technical grounds, the Archive argues that technology hasn't advanced to the point where computers can tell the difference between real infringement and fair use.
"So far, no computer algorithm has been developed that can determine whether a particular upload is fair use. Notice and Staydown would force many cases of legitimate fair use off the web," says the Archive.
Take down, stay down would also force websites to make legal judgement on the copyright status of content, but without having the authority or the required information to make a correct judgement at all times.
"They (the websites) don't have all the facts about the works, such as whether they have been licensed. Most platforms are not in a good position to be making legal judgments, and they are motivated to avoid the potential for high statutory damages. All this means that platforms are likely to filter out legitimate uses of content," the Archive warns.
And in addition to all of these problems, websites like The Internet Archive will also have to bear the full cost of implementing such a regime.
"Nonprofits, libraries, and educational institutions who act as internet service providers would be forced to spend a huge amount of their already scarce resources policing copyright," the Archive argues.
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