Fahrenheit 512

The Friday night document dump is a tried and true tactic used by businesses as well as government officials looking to avoid a conflagration over the content of the documents. Waiting until a Friday that happens to fall on New Year’s Eve, however, has a panache all its own.

That’s when the U.S. Copyright Office dropped a Notice of Inquiry (NOI) into the Federal Register seeking comments on whether section 512 of the Digital Millennium Copyright Act, dealing with the procedures for notice and takedown of infringing material, is working effectively and as Congress intended when it passed the law back in 1996. But if the Copyright Office was hoping that few would notice the NOI, or that it might be able to keep the comments down to a dull roar it will almost surely be disappointed.

Library-of-Congress-Reading-RoomNo one who actually has to follow or apply the Section 512 procedures thinks they’re working well or effectively. Google alone was processing nearly 20 million takedown requests per week at the end 2015, while copyright owners see the system as a hopeless game of Whac-a-Mole, in which files get removed only to reappear quickly under a different URL. Litigation between copyright owners and online service providers — over the scope of the Section 512 safe harbor, which shields service providers from liability for infringing content posted by users if they follow the proscribed takedown procedures, the legal standard for culpable knowledge of infringing activity, and the efficacy of enforcement against repeat infringers — has formed a near-constant backdrop to the law almost since it took effect in 1998, most epically in the seven-year legal battle between Viacom and Google over content posted to YouTube. Many have been waiting years to get a crack at rewriting the safe harbor rules and they’re not likely to let the opportunity pass.

The NOI is the result of a request from Congress for input from the Copyright Office as part of an ongoing review of U.S. copyright law launched by the House Judiciary Committee in 2013. The committee spent the past two years gathering information and holding hearings on a wide range of copyright issues, including music licensing and royalty rates, the scope of fair use and the first sale doctrine. It held one hearing on Section 512 in March, 2014, which did not include testimony by anyone from the Copyright Office. In April 2015, the ranking member of the committee, Rep. John Conyers (D-MI) asked the Office to conduct its own study of the safe harbor providers and issue a to report, which triggered the recent NOI.

The Copyright Office also issued a NOI regarding the operation of Section 1201 of the DMCA, covering circumvention of access control technologies  (DRM) on copyrighted works, which is also likely to spark some heated debate. But lately, as the use (and misuse) of copyrighted material has moved away from fixed platforms, where access control technologies are most effective, to the internet, Section 512 has become the hotter front in the DMCA wars.

The Section 512 NOI is capacious, asking for responses to a long list of questions, including:

  • Are the section 512 safe harbors working as Congress intended?
  • Have courts properly construed the entities and activities covered by the section 512 safe harbors?
  • How have section 512’s limitations on liability for online service providers impacted the growth and development of online services?
  • How have section 512’s limitations on liability for online service providers impacted the protection and value of copyrighted works, including licensing markets for such works?
  • Do the section 512 safe harbors strike the correct balance between copyright owners and online service providers?
  • How effective is section 512’s notice-and-takedown process for addressing online infringement?
  • How efficient or burdensome is section 512’s notice-and-takedown process for addressing online infringement? Is it a workable solution over the long run?
  • Please address the role of both ‘‘human’’ and automated notice-and-takedown processes under section 512, including their respective feasibility, benefits, and limitations.
  • Does the notice-and-takedown process sufficiently address the reappearance of infringing material previously removed by a service provider in response to a notice? If not, what should be done to address this concern?
  • Are there technologies or processes that would improve the efficiency and/or effectiveness of the notice-and-takedown process?
  • Does the notice-and-takedown process sufficiently protect against fraudulent, abusive or unfounded notices? If not, what should be done to address this concern?
  • Has section 512(d), which addresses ‘‘information location tools,’’ been a useful mechanism to address infringement that occurs as a result of a service provider’s referring or linking to infringing content? If not, what should be done to address this concern?
  • Assess courts’ interpretations of the ‘‘actual’’ and ‘‘red flag’’ knowledge standards under the section 512 safe harbors, including the role of ‘‘willful blindness’’ and section 512(m)(1) (limiting the duty of a service provider to monitor for infringing activity) in such analyses. How are judicial interpretations impacting the effectiveness of section 512?
  • Assess courts’ interpretations of the ‘‘financial benefit’’ and ‘‘right and ability to control’’ standards under the section 512 safe harbors. How are judicial interpretations impacting the effectiveness of section 512?
  • Describe any other judicial interpretations of section 512 that impact its effectiveness, and why.
  • Does section 512(i) concerning service providers’ accommodation of ‘‘standard technical measures’’ (including the definition of such measures set forth in section 512(i)(2)) encourage or discourage the use of technologies to address online infringement?
  • Are there any existing or emerging ‘‘standard technical measures’’ that could or should apply to obtain the benefits of section 512’s safe harbors?

The Copyright Office report, it’s worth noting, is simply one step in what will be a very long process; we’re nowhere near having actual legislation to debate. The DMCA itself took more than a decade to negotiate, draft and enact. And with an election year now in full swing Congress is unlikely to get much done in 2016.

The views of the Copyright Office, however, which is part of the Library of Congress and thus an arm of the legislature, tend to carry a lot of weight on Capitol Hill in matters related to copyright law. If and when Congress does take up legislation to update the DMCA the Section 512 and Section 1201 reports are likely to have significant influence on the drafting of any bill. Efforts to shape the scope and thrust of the reports, therefore, are likely to be full-bore, particularly with respect to Section 512.

Unlike Section 1201, where the debate touches on fundamental principles in copyright like fair use, Section 512 is essentially administrative, laying out procedures for commercial interactions. Its the section of the law where the interests of service providers and those of the copyright industries are most directly in conflict and its text is largely an exercise in difference splitting.

As with any effort to split the difference between two fixed points, however, Section 512 creates a zero-sum dynamic. Move the line in either direction and someone wins and someone else loses. That rarely brings out the best in the parties in interest.

 

 

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