Last week, the United States Copyright Office (USCO), released a much-anticipated report about the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions. Over five years in the making, the study is the product of several rounds of feedback and roundtables and involved over 150 participants and some 92,000 comments.
In the end, it’s a nearly-200-page analysis of the United States’ notice-and-takedown system, which has become very familiar and very controversial on the internet.
However, the report itself has proved to be somewhat divisive. Creators and rightsholders have largely applauded the report while tech companies and other service providers express concerns about shaking up the safe harbors that they rely upon. Others complain that the public was not represented as a stakeholder at all.
But before I offered my thoughts on the report, I wanted to spend some time with it and see what was actually in it. To that end, this is more of a breakdown of the report itself and not an opinion piece.
However, please bear in mind that it is nearly impossible to break down such a mammoth report in a relatively short article. As such, there will be a lot of simplification and some things will have to be omitted. Instead, we are going to focus on the areas that are most important, at least according to the USCO.
A Quick Background
The DMCA is a 1998 law that implemented two World Intellectual Property Organization (WIPO) treaties into United States law. The law itself is massive and contains a variety of seemingly unrelated sections. However, the one this report is focused on is the DMCA safe harbor provisions.
These provisions cover four separate classifications of online service providers (OSPs). The first two are more infrastructure oriented (dealing with caching and transitory networks) and are granted blanket immunity for infringement as long as they meet the definition of such a service.
The other two are online service providers that host content for third parties and information location tools. Of those two, the first can be almost any service that hosts user content. This includes services like YouTube and Facebook but also web hosts like GoDaddy. The latter, information location tools, are basically search engines such as Google and DuckDuckGo.
In both cases, the law requires providers to remove or disable access to allegedly infringing material upon notification. This is the famous notice-and-takedown system that is the subject of the report. This system has been controversial with people simultaneously working about false DMCA notices and hating the game of “Whac-A-Mole” many rightsholders play removing one infringement only to have others pop right up.
It’s in that climate that the USCO began work on and released this report.
The Twelve Takeaways
One of the goals of this report, according to the USCO, was to see if the balance that Congress attempted to strike when passing the DMCA was being maintained. To that end, the USCO says that OSPs were, on the whole, quite happy with the DMCA but that creators and rightsholders said that it was ineffective for smaller creators and the previously-described game of “Whac-A-Mole”.
As such, the USCO said that the intended balance “has been tilted askew” in what is probably the most-quoted line from the report.
In finding that it’s askew the USCO then went on to make twelve “conclusions and recommendations”, each of which looked a different part of the safe harbor system. Those twelve items are.
- Eligible Types of OSPs: Without making specific suggestions, the USCO notes that the internet has advanced and changed a lot in the past 22 years and the four categories of OSPs listed in the DMCA have been expanded to cover things Congress may not have intended. This includes online marketplaces being considered “hosts” and whether providers of peer-to-peer services and payment processors are truly part of the infrastructure of the internet.
- Repeat Infringer Policies: The DMCA requires hosts to have a policy for disconnecting repeat infringers. However, there’s much debate over who exactly is a repeat infringer and that’s not helped by the lack of guidance in crafting such a policy. The USCO suggests requiring hosts to publish their repeat infringer policy publicly and suggests Congress consider providing additional guidance on what the “appropriate circumstances” are for terminating an account.
- Knowledge Requirements: Under the DMCA, a host is supposed to remove allegedly infringing material if they have “red flag” knowledge of an infringement. However, court rulings have made red flags almost meaningless, making a DMCA notice the only way content is removed reliably. The USCO asks Congress to clarify what is reasonably red flag knowledge and to also clarify the standard of “willful blindness”, which can theoretically lead to an OSP being accused of having actual knowledge of an infringement. Overall, this section is very broad and doesn’t make any specific suggestions, but does say that the current practical balance in this area is not likely what Congress intended.
- Representative Lists: When filing a DMCA notice, a rightsholder is supposed to clearly identify the work being removed. However, if there’s a large volume of work, they can send a “representative list” as long as they provide sufficient information to locate all of the other infringements. The USCO claims that this language is vague and that courts (as well as OSPs) have put greater requirements on rightsholders than Congress intended. The USCO wants Congress to examine if the intent was to require a URL for each infringement or to consider clarifying the language.
- Abusive Notices/Counter-Notices: Here, the USCO says that the law rightfully calls for penalties for filing false notices and counter-notices. However, it says that stakeholders called for increased penalties to create a stronger deterrence.
- Fair Use and Knowing Misrepresentation: Here, the USCO encouraged Congress to monitor the fallout from the Lenz case, better known as the “Dancing Baby” case, to see if the correct balance is being struck when dealing with DMCA notices being filed where a question of fair use may be prevalent. The USCO also expressed concern that DMCA filers may be liable for damages if they fail to perform a fair use analysis even if the work is ultimately infringing.
- Notice Requirements: The USCO notes that the DMCA notice requirements are out of sync with how they are applied. Many companies require submission via form even though they are technically required to provide an email address. Others demand information and proof that is not part of the actual law itself. As such, the USCO asks Congress to shift the requirements and to give the USCO more flexible rules to “future proof” the law against a constantly-changing internet.
- Time Frames: Though the USCO liked the flexible time requirements for OSPs to respond to a notice, it said the 10-14 day window for restoring content following a counternotice was both too short to respond with a lawsuit and too long for legitimate speech to be down. As such, the USCO called for an alternative dispute resolution model.
- Subpoenas: Under the DMCA rightsholders can obtain a subpoena to compel a host or other OSP to identify a suspected infringer. However, the USCO says that this feature is little-used because the information is often not useful. Also, it’s unclear which OSPs it applies to. As such, the USCO is asking Congress to clarify the language.
- Injunctions: As with subpoenas, the DMCA allows rightsholders to obtain injunctions against suspected infringers and their OSPs. However, courts have largely interpreted this as being “co-extensive” with the notice-and-takedown system. The USCO says this doesn’t necessarily need Congressional intervention but may be worth clarifying the notice-and-takedown system from the injunctions.
- Other Approaches: The USCO says it is preparing to launch educational materials about the notice-and-takedown system to inform all participants of their rights and responsibilities under it. Likewise, the office is looking into ways to encourage voluntary cooperation on copyright infringement and identify “standard technical measures” that can be adopted.
- Alternative Proposals: The report also examines alternative stakeholder proposals such as notice-and-staydown and website blocking measures. However, the USCO considers those outside the scope of the DMCA and says that any such action in those areas would require public input and additional study of all the relevant implications.
To be clear, these were the 12 areas are the ones the USCO called attention to in its executive summary of the report. These are the 12 it clearly felt were the most important and will likely get the most attention from Congress as they move forward with DMCA reform.
As for that reform, the report steers clear of making any firm recommendations. Other than requiring OSPs to publish their repeat infringer policy publicly and harsher penalties for filing false notices/counter-notices, the USCO mostly encourages Congress to clarify the language or ensure that the balance they intended is being reached.
The report serves more to highlight areas of potential trouble than propose concrete solutions. However, that doesn’t make the report unimportant. If anything, it may be one of the most important reports in some time.
Why It Matters
The report really doesn’t say that much. While it says that the original intended balance is now “askew”, it also says that they are “not recommending any wholesale changes”. It points out areas where there are issues, but doesn’t propose many firm solutions.
However, this report comes out at an interesting time. Congress is actively eying DMCA reform and the fact that the USCO found issues that need to be addressed likely throws fuel on that fire. If the USCO had come back and said that the DMCA was working great, it could have been a roadblock.
It’s also notable that the areas the USCO focused on were mostly areas of contention for rightsholders. In fact, the report came from the perspective that OSPs were largely happy with the law and rightsholders were the ones with issues.
The USCO did not expend a great deal of energy on questions of fair use, simply saying Congress should monitor the impacts of the Lenz ruling. The USCO also expressed concern that it could expose DMCA filers to liability if they don’t perform a fair use check even if the content is infringing.
Likewise, though the USCO did address the issue of false notices, it was lumped with false counter-notices and the need to create a new system for handling such disputes. However, there are no details as to what that system might look like other than saying “Federal court is likely not a good option for disputing counter-notices” due to the time constraints.
Instead, the issues the USCO spent the most time on were ones dear to rightsholders such as determining who is eligible for safe harbor protection, spelling out repeat infringer policies and the knowledge requirements. All of these could, potentially, make it more difficult for a provider to claim safe harbor protection. Depending upon the type of service, it may not even be possible depending on how Congress handles it.
Even without making many suggestions, the report does indicate a desire to make obtaining safe harbor more difficult for providers. Though it steers clear of suggesting major changes, even minor ones related to “red flag” knowledge and the types of OSPs protected can have major impacts.
It’s a very important report that tells us the direction the wind is blowing, not necessarily where it is blowing us to.
Next week I’ll publish a post on my personal thoughts and feelings on the report. It’s clearly a divisive report with rightsholders and creators largely supporting it (though some saying it doesn’t go far enough) and tech companies decrying it.
In the end, this was never going to be easy. The idea that a law crafted in 1998 is governing the internet today seems crazy. The internet we have today is so different that we have to update the DMCA. The fact that a law written in the era of Geocities has held up as well as it has in the age of YouTube is impressive enough.
No amount of future-proofing could ever make the DMCA an eternal law. This will likely be the first of many updates for it as times and technologies change. Let us hope that whatever changes that are made are carefully considered and wisely selected.