U.S. Copyright Office Calls for Changes to DMCA Safe Harbor Law

LAS VEGAS — The U.S. Copyright Office has prepared a new congressional report that offers ways to tweak the Digital Millennium Copyright Act by updating copyright law to clarify publishers’ responsibilities for potentially infringing materials and takedown processes. While the report on Section 512, released today, doesn’t recommend wholesale changes, it does offer alternative methods for adjudicating infringement claims and offers a look at other country’s approaches to copyrights. Section 512 of the DMCA provides a safe harbor for online platforms so that they can host content uploaded by their users without needing to navigate the underlying doctrines of potential secondary liability if users infringe copyright. As long as users comply with the requirements of that safe harbor, including removing content on receiving a notice, they are insulated from copyright liability on the basis of their users’ uploads. And users can counter-notice to restore content where, as here, it is a fair use. Jason Tucker, president of Battleship Stance, an industry-leading copyright management and enforcement company, told AVN that new guidance from the Copyright Office offers ways to correct an “unbalanced” system. “The DMCA was a good first step in the early days of the Internet,” he said. “Today we need Congress to patch holes pirates exploit for financial gain.” In the report, the Copyright Office said that various alternative models have been proposed for a new system. “One practitioner has suggested developing an alternative dispute resolution process for takedown notices modeled on the Uniform Domain Name Dispute Resolution Policy,” the Copyright Office said. “Similarly, Facebook has announced that it will launch an independent body that can resolve appeals regarding Facebook content moderation decisions. One could easily imagine such a process being extended to address takedown notices under Section 512. The Copyright Office noted, however, that there is another alternative to designing a new adjudication method from scratch: such matters could be handled by a small claims tribunal set up within the Copyright Office. That proposal is the subject of an extensive report issued by the Office in 2013, which spurred a bill that is currently pending before the U.S. Senate. During the course of the study, the Copyright Office said many rightsholders encouraged the Office to look to elements of international models — such as notice-and-stay down systems or broader site-blocking injunctions — to address the continued problem of online infringement despite the various provisions of section 512. “Both of these approaches, as adopted in Europe and elsewhere, are seen as shifting more of the burden for addressing online infringement from rightsholders to [online service providers],” the Copyright Office said. “As a result, both of these proposals would necessitate either significant changes to the existing section 512 framework or adoption of a new statutory framework, and both would fundamentally reimagine the existing balance of rights and obligations between rightsholders, to online service providers and users.” Tucker noted that bad-faith online service providers are able to garner huge returns while not needing to do much to thwart repeated instances of piracy. “There are no requirements to have any verifiable information on a purported uploader,” Tucker said. “The result is that bad faith operators can take pirated content live and wait for a takedown notice. During the time of the content being live and a takedown notice and removal, the content has served its purpose. “If the reported content is popular, operators can and do put the content back up after they receive a takedown notice with little threat of being held liable,” he said. “In this example pirate sites benefit from the display of the infringing work and the content owner loses opportunity. Tucker said that Congress would be well advised to put specific systems in place with real consequences for failure to act.  “Removing anonymity would be a good first step. Another example is creating a system where failure to comply would result in a site being blocked from receiving U.S.-based traffic,” Tucker said. “Expanding the scope of a DMCA subpoena is another. History shows that if you can affect a revenue stream, you will see proactive behavior and change. “As Congress debates next steps, we at Battleship Stance will continue to protect brands and content from theft, piracy and illegal use,” he said. “Websites that choose to comply with industry standard practices and work with us can enjoy the opportunity for growth.” Check out the U.S. Copyright Office’s new report, “Section 512 of Title 17,” here.