US Copyright Office Asks For Public Comments On DMCA's Notice And Takedown

from the well,-this-ought-to-be-interesting dept

On New Year's Eve, the US Copyright Office dropped a bit of a surprise, asking for public comment on the DMCA's Section 512 safe harbor provisions -- which are probably better known as the "notice and takedown" provisions:
The United States Copyright Office is undertaking a public study to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. 512. Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office will also review how successfully section 512 addresses online infringement and protects against improper takedown notices. To aid in this effort, and to provide thorough assistance to Congress, the Office is seeking public input on a number of key questions.
You can see the full Notice of Inquiry (also embedded below).

What comes out of this may certainly be interesting, but it's not difficult to predict that there will be two huge piles of responses that are more or less diametrically opposed: a group of content creators who are obsessed with the fact that they have to send takedown notices and that their works still keep popping up will complain about all of this, and say that the notice and takedown process is too onerous for content creators, and that we should move instead to a world where platforms have to pro-actively monitor things, such as with a "notice and staydown" procedure. On the flip side, you'll have plenty of people and internet platforms talking about how onerous things are from the other side: platforms are inundated with piles of requests, many of which are completely bogus, but which companies often feel compelled to take down to avoid liability. And end users face tons of censorship due to bogus and abusive takedowns.

The Copyright Office has historically come down on the side of copyright maximalists, so it wouldn't surprise me to see that the end result of this process is them suggesting more liability and responsibilities for internet platforms -- in part because they have absolutely no clue what a disaster that would be for content creators themselves. People who want to put more burdens on platforms think that this somehow helps content creators, but the opposite is true. It will mean fewer online platforms serving content creators, because the burdens will be too high. It will further entrench the large players and limit new upstarts, innovators and competitors.

If you decide to submit your own comments -- and I suggest you do -- I would hope that you focus on these "unintended" consequences of mucking with the system in the direction of further burdening these services that seem to be doing a pretty good job serving most content creators and internet users.

Filed Under: copyright, copyright office, dmca, dmca 512, notice and takedown, safe harbors

Reader Comments

The First Word

Do you feel that the notice and takedown system is reasonable, and if not do you have any ideas or suggestions as to how it could be improved?

This piqued my interest, since statutory reform is my hobbyhorse.

I don't really care for notice and takedown; I'd rather grant broad immunity to service providers for the actions of their users, limit injunctive relief against service providers to something respectful of free speech and reasonably doable (none of this stuff with injunctions against providing any service to anyone who infringes, which is ludicrously overbroad), and let it be litigated normally so as to adhere to due process.

I acknowledge that there is a lot of piracy going on, but that's not an excuse for circumventing a proper trial with a system of effective censorship by ex parte accusation made to a non-judicial entity, no less. That there's a lot of piracy strikes me as an indicator of a fundamental problem with our copyright law, not a need for throwing out real due process so as to speed things along.

That said, if we were to nevertheless keep a notice and takedown system, I would suggest the following changes in no particular order, in addition to just rewriting section 512 for clarity, as it is a godawful disorganized mess:

* Get rid of subsection (i). The 'standard technical measures' provision is a joke; there are no such measures, whatever they are even meant to be. That's easy. I'd also eliminate the the repeat infringer termination policy rule, as it is essentially prior restraint. By all means, let users be liable for their infringements, but that's no excuse to throw them offline with regard to whatever other, non-infringing activity they do, or might in the future, engage in.

* Get rid of subsection (j) and references thereto for the same reason. (Note that this would effectively make the protection for transitory communications under subsection (a) absolute.)

* Get rid of those portions of subsection (b)-(c), and (g) regarding the removal of material on sites (since it might not be possible to put it back up, if removed), but expressly limit the removal of access to that material which is in fact stored on the system or network of the service provider.

* Get rid of subparagraph (c)(1)(A) and subsection (d)(1); ISPs should not be acting sua sponte on behalf of rightsholders. Copyright is enough of a subsidy for authors already; let them shoulder the costs of enforcement.

* Change "responds expeditiously" in subparagraph (c)(1)(C) and subsection (d)(3) to "responds reasonably expeditiously," for just because something is a world-ending emergency on the part of the copyright holder, that does not mean that everyone else should have to give it the same priority.

* Get rid of the ability of the Register of Copyrights to levy a fee on parties designating agents in subsection (c)(2); the only time that the Copyright Office should charge anyone a fee for anything is a token dollar for copyright registrations, just so that they're not free. Otherwise, the copyright system should be paid for out of the general fund. It's meant to promote the progress of science, and Congress has broad tax powers; no reason for any sort of user fees for the purpose of actually raising revenue.

* Get rid of paragraph (d)(3); service providers in the business of information location should not be obligated to engage in censorship on behalf of copyright holders. If there is infringing material out there, let the copyright holders have that taken down directly; the search engines' links will then become invalid on their own, and get removed as so much useless clutter. Paragraph (d)(3) is yet another provision that strikes too closely at free speech for my tastes.

* Revise subsection (e) such that any employee of a service provider is treated as being separate from the provider itself. As knowledge is no longer a factor under subsections (c)-(d), get rid of everything about that in (e). I fail to see why this should be limited to higher ed.

* I don't have a problem with the general idea of subpoenas in subsection (h). However, it needs more protection for privacy and for inappropriate requests. Subpoenas should only be issued under subsection (h) if a copyright infringement lawsuit has been filed with regard to the complained-of material, and the subpoena should only be issued if a judge reviews and approves of the request. The service provider should be required to provide timely notice of the subpoena request to the user, if possible, so that the user can timely object to it, and the service provider should not be permitted to respond to the subpoena until an attempt to quash it has either concluded in failure or has not been timely undertaken. And some teeth should be added to the sworn declaration requirement of subparagraph (h)(2)(C), such that there is a cause of action available by either the service provider, user, or both, probably with money damages, injunctive relief, and fees and costs, in cases where the information obtained by such a subpoena is used for purposes other than a copyright infringement suit.

* Subsection (c)(3) -- everyone's favorite -- should probably be modified by borrowing some good ideas from Rule 11. And what copyright holder could argue with such well-established safeguards? I'd rewrite this subsection as follows: (please forgive the poor formatting)

(3) Elements of notification.--
(A) A notification of claimed infringement under this section must:
(i) Be a written or electronic communication provided to the designated agent of a service provider;
(ii) Identify the complaining party, and provide information reasonably sufficient for the service provider to contact the complaining party, such as an address, telephone number, or electronic mail address;
(iii) Either:
(I) Identify the complaining party as the copyright holder suffering the alleged infringement; or
(II) Identify the copyright holder(s) suffering the alleged infringement and identify the complaining party as being authorized to act on behalf of the copyright holder(s) in this matter;
(iv) Identify the copyrighted work(s) claimed to have been infringed with specificity;
(v) Identify the material claimed to be infringing, access to which is to be disabled, with specificity such that the service provider can reasonably locate the material;
(vi) Include a certification that to the best of the complaining party's knowledge, information, and belief, formed after an inquiry reasonable after the circumstances:
(I) The information in the notification is accurate;
(II) The notification is not being presented for any improper purpose, such as to harass, limit speech, invade privacy, or gain unfair commercial advantage; and
(III) The claim of infringement is warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and
(vii) A physical or electronic signature of the complaining party.
(B) A notification which is in some respect defective with regard to the provisions of subparagraph (A) shall be of no effect.
(C) If a defective notification substantially complies with the requirements of clauses (A)(i)-(ii), the service provider shall not be eligible for the limit on liability under subsections (b)-(c) unless the service provider timely takes reasonable action to notify the complaining party of the defects in the notification, how the defects may be cured, and how the notification may be resubmitted.

* Subsection (g) should include a provision that requires the service provider to notify, if reasonably possible, the user responsible for the allegedly infringing material about the takedown notice, and that the user can file a counter notice, and what the effect of the counter notice is. The means to enforce this should not be the weak tea of liability for removing the material, but probably the usual panoply of remedies: actual, and statutory damages, costs and fees, injunctive relief, etc. After all, the provider is mostly going to be concerned about lawsuits coming from the copyright holder for infringement; complying yet failing to respect the user as an equal participant in this altogether absurd process is hardly going to get the copyright holder to sue.

* Paragraph (g)(2) should set the time limit for restoration of access to the material once the counter notice has been sent to however long the time was between the original notice and the actual takedown; whatever amount of time that is, it's only fair to be at least just as fast on behalf of the user.

* Paragraph (g)(3) concerning the contents of the counter notice should, mutatis mutandis, follow the new notice requirements of paragraph (c)(3).

* And lastly, I think, subsection (f) should be changed, such that if the complaining party or user knowingly falsely certified their notice or counter notice, they're liable to the other party and the ISP (whose time was wasted) for damages, etc. Also, if they negligently wrongly certified their notice or counter notice, they're liable, though less so.
—cpt kangarooski

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  1. icon
    MrTroy (profile), 5 Jan 2016 @ 9:28pm

    Re: The numbers add up

    Business models that are predicated on the notice system would fail rapidly if they could no longer hide behind this safe harbor system, and most of this problem would disappear pretty quickly.

    Business models like remixing, parody and news?

    What about all the cases where two parties create something building off the same public domain (or otherwise legitimate/licensed) source, and one party kicks the other party's content off the internet because they think it's infringing?

    What you're suggesting may be possible if every creative work was spun from whole cloth, and never incorporated any element from any other creative work ever. In the world we live in? You're spitting into the wind.

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