House Committee Looks at Safe Harbor Provisions of DMCA

WASHINGTON, D.C.—A hearing of a subcommittee of the House Judiciary Committee took place Thursday to take a look at the continuing efficacy of what is perhaps the most significant section of the Digital Millennium Copyright Act—Section 512, which lays out the so-called 'safe harbor' provisions in the law that protect internet service providers from liability for copyright infringement undertaken by their users. The hearing, called simply Section 512 of Title 17, was held by the Subcommittee on Courts, Intellectual Property, and the Internet, and had as its first panel of witnesses two law professors, three lawyers representing companies with vested interest in any proposed changes to the law, and one actual artist, a composer who is also a member of The Recording Academy. Companies represented at the first panel included Google, WordPress parent Automattic and global publisher Elsevier. Chaired by Rep. Goodlatte (R-VA), the hearing yesterday was the first of probably several that will address concerns that have arisen over the last few years about the continuing efficacy of the DMCA's "safe harbor" provisions, and whether changes need to be made to the law. As explained by Goodlatte in his opening statement, the most serious complaints people have today about the law were not anticipated in 1998, when it was "designed to achieve two important policy goals that were crucial to the success of the Internet: "1. Enabling good faith online service providers to operate without risk of liability for the actions of their users, and "2. Enabling copyright owners to quickly remove infringing online content without flooding the courts with litigation." "These two goals have mostly been met with the rapid growth of the online economy," continued Goodlatte, adding, "However, like all legislation related to technology, issues have arisen that were not anticipated during the drafting and enactment of Section 512. These issues have posed challenges that have led some to call for updates to 512. As the Committee undertakes its review of copyright law, the time is right to consider these issues and proposed solutions to them." He then outlined three issues that the witnesses would address, including what he called "the whack-a-mole game by copyright owners," whereby "copyright owners are increasingly facing a scenario that simply wasn’t anticipated during the enactment of 512—the need of copyright owners to send a voluminous amount of notices seeking removal of infringing content followed by the almost immediate reappearance of the same infringing content. In an interesting twist, different groups point to the same statistics showing the mammoth amount of notices being sent today as proof of either the system working as designed or the system not working as designed." Needless to say, adult content copyright holders are all too well aware of the scenario explained above by the Republican legislator. Second, Goodlatte mentioned as an area of concern "the quality of the notices and the impact upon other important legal doctrines such as fair use and the First Amendment. While there is little disagreement over the need to expeditiously remove clearly infringing content, how Section 512 intersects with these other legal doctrines is subject to court cases still underway." And finally, for the purposes of yesterday's hearing, Goodlatte mentioned a problematic increase in "behavior [by some] that abuses the rationale for Section 512 by sending outright fraudulent notices with little risk for penalties being imposed upon them for their actions. Although the number of such cases appears to be low percentage-wise, this Committee should consider ways to reduce such blatant abuse." Despite the various concerns expressed by the witnesses at the hearing—a video of which can be seen here—reaction to even the suggestion of changes to 512 were met with immediate scorn by some, and a little hyperbole. As interpreted by TechDirt, for instance, any efforts to institute stronger "notice and takedown" provisions are simply "SOPA 2.0 in disguise. The whole goal of SOPA was basically to shift the issue of copyright infringement to the tech industry from the MPAA/RIAA. The idea was that if you add liability to the tech players, then it would magically force the tech companies to figure out a way to 'clean up' infringement (leaving aside all the collateral damage). That's the same thing with 'notice and staydown.' The real issue is trying to shift the liability burden to tech companies." Likewise, in a HuffPo blog post yesterday, Edward Black, President and CEO of the Computer and Communications Industry Association, argued that "the balance that Congress struck in 1998 places compliance burdens on both rights-holders and service providers—and provides both with benefits." Admitting that there needs to be scrutiny on "how parties use the DMCA," his greater concern is with "censors [who] seem to gravitate to the DMCA takedown process to suppress speech they don't like." The DMCA, he argued, "should remain undisturbed as a cornerstone of our thriving Internet economy," but "Congress can still shine a light on bad actors trying to snuff out competitors or lawful speech online." The interests of consumers also seemed paramount to those of copyright holders in an assessment of the current copyright situation by Bartees Cox of The Daily Dot, who argues, "Some copyright holders have mentioned that the safe harbors do an imperfect job of keeping infringing content off the Web once it's been taken down. But no system of laws can lead to perfect enforcement. The practical objective of the DMCA was never to eliminate infringement from the web, just as the practical objective of speed limits is not to ensure that no vehicle ever travels above 60 mph, or for copyright laws to ensure that photocopiers or VCRs could never possibly be abused."