Split Over DMCA Safe Harbour Continues To Roil US Copyright Office Reform Efforts

Internet service providers and copyright owners remain deeply divided over the effectiveness of the Digital Millennium Copyright Act safe harbour provisions, they said in additional submissions to a US Copyright Office inquiry.

The Copyright Office has been examining various aspects of the 1998 Digital Millennium Copyright Act (DMCA) and the 1976 Copyright Act since late 2015. One key element of the DMCA is Title 17, United States Code, Section 512, which offers online companies “safe harbor” protection from liability for copyright infringement claims as long as they take down unauthorised content quickly when notified by rightsholders.

After an initial round of written submissions and several roundtables, the Office in November 2016 sought additional comments [notice is here] on themes it said warranted further discussion. These relate to questions about how to weigh the diverse interests and needs of affected stakeholders such as individual authors, small businesses, publishers, internet service providers and members of the public.

The Office sought additional comments on several specific topics, including characteristics of the current internet ecosystem; operation of the current DMCA safe harbour system; and the potential future evolution of the system. Comments were due on 21 February, but are not publicly available yet.

Responses made available by several organisations, however, show continued tensions between internet firms and content providers over the DMCA’s liability and notice-and-takedown provisions.

The Computer & Communications Industry Association (CCIA), which represents computer, communications and internet industry companies, argued again that Sec. 512 “has encouraged investment and innovation online, enabling a thriving digital economy.” Increasing the regulatory burdens on internet companies will hurt small businesses and might deter them from launching a new business or entering a new market, it said.

CCIA faulted the Copyright Office’s “implication that Section 512 does not already account for stakeholder diversity,” saying the statute contains some subjective standards, as opposed to fixed requirements, that place lighter burdens on less sophisticated stakeholders. Small players shouldn’t be expected to take on voluntary measures that larger service providers may adopt, it said.

One hot issue in the DMCA debate is the concept of “notice-and-staydown,” which would require internet service providers not only to remove infringing material on their sites when it is brought to their attention but also to police their networks and other sites for further uses of the content. CCIA opposed stay-down proposals, saying they “continue to be infeasible,” platform-specific and neither foolproof nor universally applicable. Moreover, it said, there is a lack of consensus on what the term means because it has no basis in Title 17 or international copyright law.

CCIA’s comments are available here.

On the other side of the issue is a wide range of members of the music community. While “service provider comments make clear that those claiming safe harbor immunity think the DMCA safe harbor regime is working perfectly well … copyright holders detail an experience with a system that is fundamentally broken,” said a group including the American Federation of Musicians; American Society of Composers, Authors and Publishers; Broadcast Music, Inc.; Content Creators Coalition; Global Music Rights; Living Legends Foundation; Music Managers Forum – United States; Nashville Songwriters Association International; National Academy of Recording Arts and Sciences; National Music Publishers’ Association; Recording Industry Association of America; Rhythm and Blues Foundation; Screen Actors Guild – American Federation of Television and Radio Artists; SESAC Holdings, Inc.; and SoundExchange.

Among Sec. 512’s failings, the music industry said, is that the safe harbour protections have been extended far beyond passive, innocent ISPs to include “entertainment providers that stream, distribute and/or otherwise provide access to user-uploaded audio and/or video content to millions of users and build their businesses on infringement.”

Respondents urged a European Union-style approach that would require services that store and provide access to the public to copyrighted works uploaded by their users to obtain licences from copyright owners unless they’re covered by the hosting safe harbour; and that would make services that play an active role in relation to users’ uploaded content ineligible for safe harbour protections.

Another major failing is that the notice-and-takedown process is “highly burdensome” for content owners and results in an “endless game of whack-a-mole,” with infringing content removed from one site popping up elsewhere, the music industry representatives said.

In the absence of voluntary measures agreed upon by the music community and service providers, “legislative solutions will be necessary to restore the balance Congress intended,” the rightsholders wrote.

The House Judiciary Committee said in December it will review music licensing issues.

The music community’s joint submission is here.

 

Image Credits: US Copyright Office