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. Read More »