The U.S. Copyright Office has released a long-awaited, 192-page report that could give the music and movie industry an opening to fight for stricter enforcement of the Digital Millennium Copyright Act.
The report concludes that the DMCA is largely working, but also found that the section 512 safe harbour provision—a cornerstone of the law that protects service providers like YouTube from copyright liability as long as they take reasonable efforts to comply with takedown requests quickly—is currently “askew” and may be in need of tweaks.
Open internet advocates, such as the Electronic Frontier Foundation, agree that the safe harbour provision is foundational to the internet services that the public uses every day, but have criticised the DMCA takedown system for encouraging overzealous corporate censorship and destroying rights to fair use of copyrighted material. They have also urged revision of Section 1201 “anti-circumvention” provisions, which is meant to prohibit breaking access controls and other technical protections like DRM, but has instead allowed corporations to engage in anti-competitive behaviour. Web users have also experienced the takedown provisions of Section 512 as an omnipresent threat that exposes them to things like unfair harassment by platforms’ automated rights enforcement systems and copyright trolls.
The Copyright Office report, however, goes the other direction. It identifies the problems as primarily affecting rightsholders—and while it is “not recommending any wholesale changes to section 512,” it recommended adjustments that would make it easier for corporations to issue takedown notices.
“While [online service providers], supported in many aspects by user advocacy groups, report satisfaction with the current operation of the safe harbours, that view is not shared by the other intended beneficiaries of the section 512 system, including authors, creators, and rightsholders of all sorts and sizes,” the report states. “… Despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of section 512 notices to address that situation remain significant problems.”
Congress will supposedly update the DMCA this year, and the Copyright Office identified several areas where the law could be tweaked. Those include alternate models for resolving takedown disputes, harsher penalties for misrepresentations in takedown notices and counternotices, and clarifying the circumstances in which a platform can be found to have ignored copyright infringement and thus lose its safe harbour provision. It also said that the DMCA has left too much power in the hands of online service providers like Facebook, YouTube, and Twitter to determine who qualifies as a “repeat infringer” whose account must be terminated under the law. The report said that having a “clear, documented, and publicly available repeat infringer policy seems like the appropriate minimum requirement in order to comply with the statute” and that Congress could consider clarifying the “appropriate circumstances” under which user accounts must be deleted.
Finally, the report also said Congress should also consider tweaking parts of the law that allow rightsholders to subpoena online service providers to identify copyright infringers, suggesting that clarifying whether it applies to internet service providers may help corporations go after peer-to-peer pirates.
According to Music Ally, music industry associations such as the Recording Industry Association of America have indicated they are happy with the report, as has the Motion Picture Association of America. Open internet advocates have not been so happy, with the Electronic Frontier Foundation tweeting that the Copyright Office had “incorrectly determined that the only groups whose concerns should be addressed are those of large tech companies and major rightsholders.”
In its report on Section 512 of the Digital Millennium Copyright Act (DMCA), the Copyright Office has incorrectly determined that the only groups whose concerns should be addressed are those of large tech companies and major rightsholders.
— EFF (@EFF) May 21, 2020
For example, the proposal to terminate someone’s Internet access—at any time, but especially now—is a hugely disproportionate response to unproven allegations of copyright infringement.
— EFF (@EFF) May 21, 2020
If you depend on a service provider to communicate with the world, from an ISP to a web host to YouTube, you rely on safe harbors. The DMCA is not just a protection for Big Tech; it is the cornerstone of the Internet. https://t.co/Ke3Y360cEH
— EFF (@EFF) May 21, 2020
Changes to the DMCA could have a massive and unforeseeable impact. When the law was drafted in 1998, major web platforms like Facebook and YouTube were years away from launching and may never have at all were it not for the Section 512 provisions. Reform could swing in either direction, though Senate subcommittee on intellectual property chair Senator Thom Tillis told Bloomberg Law the report shows the DMCA is “in dire need of revisions.” Tillis, TechDirt noted, has considered rather extreme changes such as revisions similar to the European Union’s Copyright Directive, which could force platforms to implement “upload filters” scanning for copyrighted material, as well as adding “notice and staydown” provisions to Section 512 that would require platforms to proactively prevent material subject to a takedown request from being re-uploaded elsewhere.