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10 August 2020
The US Copyright Office recently issued the long-awaited and first comprehensive government study on the 20-year-old Section 512 of the Copyright Act. Section 512 is a widely used, high-stakes and regularly litigated provision of the federal copyright law that is relevant to many parties. The 250-page study (the 512 Report) contains an incredibly thorough and well-done analysis of the current law in this area, the learned challenges of this provision and the viewpoints of various stakeholders with regard to some of the challenges that exist with Section 512. This article aims to provide a brief overview of the study's key findings.
Congress enacted Section 512 of the Copyright Act in 1998 as part of the Digital Millennium Copyright Act (DMCA) and it was meant to be a balancing tool for online service providers (OSPs), content creators and rights holders to address copyright infringement in the complex and ever-changing online landscape. Section 512 was intended to shield OSPs from copyright infringement liability, under certain specific circumstances, when third parties upload or post unauthorised copyrighted material to a platform or website, among other methods, and put a system in place for rights holders to have their unauthorised works removed from these websites, known as the DMCA takedown notice. If executed properly, a DMCA takedown is meant to be an efficient process to:
OSPs that fail to respond appropriately to a valid notice lose the safe harbour that they may otherwise have had, if other requisite steps have been followed, from the otherwise strict liability for the infringing material they are hosting (even if unwittingly). Twenty years later, and after experiencing how legal precedent has developed around Section 512 while technology continues to change rapidly, OSPs and rights holders continue to have rather different views regarding whether Congress struck the right balance with Section 512.
In 2015 the Copyright Office began the Section 512 study to "evaluate the impact and effectiveness of the DMCA safe harbour provisions" at Congress's request. The Copyright Office put tremendous work into the study, reviewed thousands of written responses and held numerous roundtables to hear from OSPs and rights holders. Although somewhat of a generalisation, OSPs largely do not see the need for changes to Section 512 of the DMCA, but the rights holders view the process as a tiresome game of whack-a-mole. The OSPs argue that a more stringent approach would limit their innovation and progress. However, rights holders have responded that with the ease in which content is transferred online, there is no way that they will be able to monitor and effectively remove content that infringes their copyrights.
There have been several collaborative efforts between OSPs and rights holders to come to better terms, but these have not produced a solution that satisfies everyone. Several "best practices" guidelines have been released to address user-generated content, fair use and online piracy.(1) Formal agreements have also been signed by the parties to facilitate "the operations within the notice-and-takedown framework".(2) There have also been private initiatives, such as educational outreach and technological tools, to help combat copyright infringement. Many OSPs believe that they are doing their part in limited infringing material on their sites, but many rights holders believe that more can be done.
The Section 512 Report by the Copyright Office articulated that the Section 512 mechanism is not working as intended and opined that the burdens on rights holders are increasing while OSPs enjoy protections beyond what Congress intended. In proposing its recommendations to Congress, the Copyright Office used the following principles to guide the Section 512 study:
To be clear, the Copyright Office did not recommend "any wholesale changes to section 512, instead electing to point out the numerous areas where Congress may wish to fine-tune section 512's current operation".(4) Specifically, the Copyright Office recommends that Congress re-examine the following areas of the statute:
In addition, the Copyright Office believes that voluntary efforts can greatly increase the efficiency of the takedown process, including education. The Copyright Office plans to lead these efforts by unveiling a new website ("copyright.gov/DMCA"), which will include model notices and practical tips, among other useful information.
Section 512 is a fascinating area for copyright practitioners and scholars, and should be understood by a great many businesses, beyond the most active content owners and OSPs that have been at the forefront of these issues.(6)
For further information on this topic please contact Linda J Zirkelbach or Danae Tinelli at Venable LLP by telephone (+1 410 244 7400) or email (email@example.com or firstname.lastname@example.org). The Venable LLP website can be accessed at www.venable.com.
(1) For example, the Principles for User-Generated Content Services (UGC Principles) were created as "a set of guidelines designed to address the proliferation of uploaded content that infringes copyrighted works". Subsequently, the Fair Use Principles for User-Generated Video Content were also published as "a set of guidelines meant to provide concrete steps to be taken to minimize unnecessary, collateral damage to fair use in light of the techniques advocated in the UGC Principles". US Copyright Office Section 512 Report, 2020, pp 36-38.
(2) For example, the RogueBlock program, created by the International Anti-Counterfeiting Coalition, was implemented "to create a streamlined, simplified procedure for members to report online sellers of counterfeit or pirated goods directly to credit card and financial services companies". Id, p 39.
(6) The information provided in this article is intended to be only a general overview. For a more comprehensive analysis of the Copyright Office's findings and recommendations, see the Section 512 study report in full.
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