Authors Alliance is grateful to Diana Buck, Copyright Intern, for sharing this summary of the US Copyright Office’s recent Report on Section 512, a part of the Digital Millennium Copyright Act (“DMCA”) enacted in 1998 to provide a framework for copyright owners and online service providers (“OSPs”) to address copyright infringement online.

The United States Copyright Office recently released a Report on the operation of Section 512. The Report is the culmination of a five-year study of whether Section 512 is working as originally intended to balance the interests of OSPs and copyright owners.

Section 512 gives OSPs a “safe harbor” from secondary liability for their users’ copyright infringement. In return, OSPs are required to implement certain features to protect copyright holders, most notably “notice and takedown” procedures. Under notice and takedown procedures, copyright owners can get infringing material removed from online sites by sending brief “takedown notices” to OSPs, without the expense and hassle of filing a lawsuit. To be eligible for the safe harbor, upon receiving a takedown notice with the statutorily-required information, the OSP must remove the allegedly infringing material.

In preparing the Report, the Copyright Office sought input from stakeholders. OSPs generally praised Section 512 for allowing them to grow their services and serve the public without facing debilitating lawsuits. Copyright owners generally expressed concern that they couldn’t utilize Section 512 in a meaningful way to address copyright infringement because infringing material reappears across the internet even after it is removed in response to takedown notices. User groups critiqued the notice and takedown regime in a different way, contending users’ interests are not being adequately protected when their content is mistakenly targeted and removed.

The Copyright Office’s Report concludes that the balance has tilted askew, failing to meet the concerns of copyright owners. However, the Copyright Office generally recommends that Congress clarify and revise some of the language of Section 512, rather than make any large changes that would go beyond the original construct of the DMCA. The Copyright Office outlines areas for potential revision, including:

• Clarifying what exactly constitutes a “repeat infringer,” and whether allowing OSPs to have unwritten policies for termination of repeat infringers’ access to OSP platforms has Section 512’s desired deterrent effect.

• Clarifying the proper knowledge requirements for an OSP to receive safe harbor protection, including delineating a lack of “actual knowledge” of infringing activities from a lack of “red flag knowledge,” which is when an OSP is aware of facts and circumstances that make infringing activity apparent.

• Clarifying whether a copyright owner, when submitting a takedown notice, must include a unique URL for every instance of infringement on an OSP’s service.

• Considering an alternative dispute resolution model for whether material should be removed and reinstated, instead of requiring that a copyright owner must file a federal lawsuit.

• Monitoring the impact of the Ninth Circuit’s decision in Lenz v. Universal Music Corp., and whether it is appropriate for Congress to clarify whether copyright owners who send takedown notices should have to meet an implied good faith requirement that they assessed whether the potentially-infringing use was actually fair use.

Advocacy groups for large content creators, such as the Association of American Publishers (“AAP”) and the Motion Picture Association of America, issued statements that commend the Copyright Office’s report, agreeing with the Report’s conclusion that the DMCA fails to adequately protect creators’ rights.

Academics and organizations critical of the Report argue that it favors the copyright industry in almost every respect, potentially placing new burdens on OSPs and allowing notice senders to abuse Section 512 by using notice and takedown to censor content they do not own or control. Several commentators point out that the Report fails to account for internet users’ interests. Copyright scholar and Authors Alliance board president Pamela Samuelson also criticizes the Report’s stance on the Lenz decision and for chiding OSPs for failing to remove content that the OSPs believe is fair use. Critics express concern that the Report supports terminating internet access for users on the basis of allegations of infringing activity. These critics express relief, at least, that the Report did not go as far as suggesting site-blocking or notice-and-staydown (areas where the Copyright Office instead suggested that additional study was needed).

Whether to make any of the changes suggested in the Report is a legislative decision for Congress. The Senate Judiciary Subcommittee on Intellectual Property is examining the DMCA and has announced plans to draft changes to the law as early as this year. The Copyright Office, in its Report, stated its intention to prepare education materials for copyright owners and OSPs on their rights and obligations under Section 512, including rolling out a new website, copyright.gov/DMCA, for that purpose.