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Copyright Office Recommends Clarifications, but no “Wholesale Changes” to DMCA’s Safe Harbor Provisions

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In May 2020, the United States Copyright Office issued a report assessing the effectiveness of Section 512 of the Digital Millennium Copyright Act (DMCA) , 17 U.S.C. §512, in the modern Internet era. Commonly known as the “Safe Harbor Provision,” Section 512 provides several avenues for online service providers (OSPs) 1 to limit their liability for infringing content that is posted to their online platforms. Enacted in 1998, Section 512 has remained a primary statute of the DMCA governing liability for infringing online content, even though predating many of the modern internet giants it serves.  In response to related congressional hearings that began in 2014, the Copyright Office issued this recent report after several years of study, with recommendations to Congress for adapting Section 512 to the modern age, where OSPs and rightsholders are faced with millions of potentially infringing uploads daily.

Congress enacted Section 512 in 1998 as part of the DMCA, intending to facilitate the evolution and growth of the Internet by limiting liability of OSPs for certain acts of alleged copyright infringement on their platforms, while simultaneously providing authors and copyright holders a strong incentive to cooperate with OSPs to address such infringing content. Section 512 accomplishes this by providing four safe harbors for OSPs, which still shape many of the terms of service and “notice-and-takedown” provisions used by OSPs today. Congress originally intended Section 512 to create a balance between rightsholders and OSPs. This balance intended that rightsholders were primarily responsible for monitoring the internet for uploaded content that may be infringing and notifying OSPs via takedown notices. In return, Section 512 requires OSPs to maintain certain polices and respond to these notices, which may require removing content on their platforms in order to qualify for one or more safe harbor mechanisms created by Section 512.  By qualifying for one or more of these safe harbors (which often requires promptly removing the infringing content), OSPs are largely protected from liability stemming from infringing content uploaded to their platforms.2

Since the enactment of Section 512 in 1998, the internet has grown exponentially, with hundreds of millions of new works now uploaded on a daily basis straining the balance intended by Section 512 according to the Copyright Office. This growth presents both opportunities and challenges, as increased content provides new opportunities for both OSPs and copyright holders to expand their global footprint, but also stresses both OSPs’ and copyright holders’ ability to monitor and protect copyrighted material.3 Further developments in Internet technologies have limited the ability to police content under Section 512, including anonymized internet identities, cloud storage that is difficult for copyright holders to monitor, and peer-to-peer (P2P) file sharing, among others. These technological advancements have led the Senate Judiciary Committee’s Intellectual Property Subcommittee to note the “wear and tear” imposed on Section 512 since 1998.

To assess Section 512’s continuing viability, the Copyright Office spent several years analyzing the effectiveness of these provisions in the modern era. This assessment included five days of public roundtables, over 92,000 public comments, and a thorough review of available literature. Additionally, the Copyright Office looked at various approaches private companies and other countries have adopted to adjust to the rapidly changing landscape. This analysis culminated in this Report being released in May 2020.

Overall, the Report’s main conclusion is that the balance Congress sought to achieve between OSPs and rightsholders has shifted to favor OSPs, with a majority of OSPs reporting satisfaction with the protections of Section 512, whereas other intended beneficiaries responded with less enthusiasm. The Report attributes this shift in part to the explosion of the Internet, which has made it increasingly difficult for rightsholders, who often have limited resources and technologies compared to OSPs, to uphold their side of the balance by monitoring and reporting infringing content. While identifying several areas of Section 512 that it claims are not working as Congress intended when the DMCA was enacted, the Report posits that the intended cooperative balance between OSPs and rightsholders as envisioned by Congress has not been achieved. While finding that Section 512 remained a viable tool for fighting online infringement, the Copyright Office concluded that Congress consider several updates to improve the law in view of the modern Internet era.

Specifically, the Copyright Office made recommendations in several areas for revising Section 512. While there are numerous recommended changes, the Copyright Office stresses that changes are meant to help “fine tune” Section 512 in the modern Internet age, and the Office is not recommending wholesale changes at this time. These recommended updates include:

  • Defining the scope of eligible OSPs - Among many examples, the Copyright Office specifically questioned whether OSPs that provided services beyond Internet infrastructure, such as P2P systems and payment processors, should be protected under Section 512 under Congress’ original intent.
  • Clarifying OSP’s Repeat Infringer Policies – The Report identifies two areas for Congress to clarify regarding Section 512’s “repeat infringer” policy requirements. First, whether an OSP’s repeat infringer policy must be clearly written and communicated to users in order to qualify for protection. Second, the Copyright Office suggests Congress define what circumstances qualify for termination of a user’s account based on repeated infringement.
  • Defining Section 512’s knowledge requirements – Different provisions of Section 512 include various knowledge requirements as part of its regulatory regime. The Copyright Office observes that courts have often applied inconsistent definitions to these knowledge requirements, and the Report recommends that Congress’ clarify their intended scope.
  • Clarifying the requirements of a Takedown Notice – The Office suggests Congress clarify the requirements of a complaint takedown notice to an OSP, specifically calling out two ambiguities in Section 512: “the representative list of such works at that site” and the “information reasonably sufficient to permit the service provider to locate” the alleged infringing work.
  • Addressing the meaning of “Knowing Misrepresentation” of Takedown Notices & Counter-Notices – Courts are split in their interpretations of, and the Report suggests clarifying, the requirement of “knowing misrepresentation” when determining whether a takedown or counternotice is fraudulent.
  • Accounting for the effect of fair use – The Report pointed to the impact of various court decisions holding that Section 512(c)(3) includes a good faith requirement, and suggested Congress monitor and clarify whether this was their desired intent.
  • Future-proofing Takedown Notice requirements – The Copyright Office remarks that many submission mechanisms for takedown notices – including web-based forms employed by many larger OSPs – may deviate from the requirements of Section 512(c). Generally, the Report comments that the notification standards in Section 512(c) are growing obsolete, and Congress should clarify and “future-proof” their use.
  • Alternative methods of restoring content access – The Report sums up that Section 512’s timeframe for providing access to content after a counter-notice is received – ten to fourteen days – is both too long to block access to legitimate speech, and too short for rightsholders to file a lawsuit. The Copyright Office suggests an alternative dispute resolution for these issues.
  • Assessing the strength of subpoenas and injunctions – Section 512(h) grants rightsholders a subpoena power that is rarely used in its current form, due to the strict requirements imposed by courts to grant it and the scant information gleaned from it. The Report suggests clarifying whether this was Congress’ intent. Similarly, while Section 512(j) permits limited injunctions against OSPs, courts have largely interpreted these injunctions to be identical to the notice-and-takedown system. The Report asks Congress to clarify whether this limited injunctive relief should be so narrow.

In addition to these statutory clarifications, the Report also raises the importance of alternate proposals, suggesting further study and public input to assess their viability. Specifically, the Report proposes the use of the educational and voluntary systems (in conjunction with Section 512) that can be used to fight online infringement. To make its point, the Copyright Office identifies measures taken by foreign countries to combat online infringement and suggests further study to determine if these are worthwhile additions to the current regulatory regime.

Although the recommendations in the Report are lengthy, the Copyright Office repeatedly asserts that it is not recommending “wholesale” changes to Section 512. However, any combination of the aforementioned changes has the potential to greatly impact the rights and obligations of both OSPs and rightsholders, especially as content on the Internet continues to increase at an exponential rate.

While Section 512 remains a useful tool for combating copyright infringement, the Copyright Office believes the balance set in 1998 is no longer appropriate in view of subsequent changes in the Internet ecosystem. In response, the Office has identified several areas to fine-tune Section 512 in order to re-establish this balance and cooperation between OSPs and rightsholders. If it agrees with the Copyright Office that an imbalance exists in the modern Internet age, Congress’ next steps are to evaluate these proposed changes and move forward with potential legislation that may define copyrighted materials on the Internet for the next half of the 21st Century.

1 Section 512 defines “online service provider” as an “entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user’s choosing, without modification to the content of the material as sent or received.” See 17 U.S.C. 512 (k)(1).

2 The extent of liability protection of these safe harbors, along with the requirements for satisfying them, are beyond the scope of this article.

3 For example, the report notes that Google received takedown notices identifying 882 million URLs for takedown in 2017 alone.

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