Introduction

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.

Section 512

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:

  • put the OSP on notice that the rights holder's work is being used without permission;
  • remove the work from the platform expeditiously; and
  • put the third party on notice that it has infringed a copyrighted work.

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:

  • copyright protection online must be meaningful and effective;
  • OSPs operating in good faith must be afforded legal certainty and leeway to innovate;
  • Congress intended to incentivise cooperation between OSPs and rights holders, but cooperation cannot be the only answer;
  • to the extent possible, government decision making should be based on evidence; and
  • internet policy in the 21st century cannot be one size fits all.(3)

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:

  • Eligible types of OSPs: the Copyright Office recommends clarification of some of the eligibility requirements to qualify for the safe harbour. For instance, Section 512(c) activities relating to storage or hosting, Section 512(b) timing guidelines for what constitutes "temporary" storage and whether other technology services, such as payment processors and peer-to-peer systems, should qualify under Section 512(a).
  • Repeat infringer policies: currently, an unwritten repeat infringer policy, provided such policy is implemented, is enough for OSPs to be eligible under Section 512(i)(1)(A). However, the Copyright Office recommends that this policy should be clearly accessible to deter infringers. Additionally, the Copyright Office recommends additional guidance on what "appropriate circumstances" are when OSPs are terminating repeat infringers.
  • Knowledge requirements for OSPs: the Copyright Office recommends that Congress clarify the actual versus red flag knowledge requirements as they relate to Sections 512(c) and 512(d), the wilful blindness standard used in connection with Section 512(m) and the right and ability to control standard in Section 512(c)(1)(B).
  • Representative list and identification of location: under Section 512(c)(3)(A)(ii)-(iii), rights holders must identify the work "claimed to have been infringed" and "information reasonably sufficient" to identify such material. In light of the tension between the statutory language and the interpretations by some courts and OSPs, the Copyright Office recommends that Congress clarify whether "a unique, file-specific URL" is needed or should be necessary to identify each infringing occurrence.
  • Knowing misrepresentation and abusive notices or counter notices: the Copyright Office simply notes that stakeholders have asked for increased penalties for misrepresentations in notices or counter notices to serve as a deterrent effect. No recommendations were made, as the Copyright Office appears to believe that this provision (ie, Section 512(f)) has been interpreted correctly by the courts, which have generally required actual knowledge or wilful blindness of falsity.
  • Knowing misrepresentation and fair use: the Copyright Office questions the Lenz court's test(5) for a knowing misrepresentation under Section 512(f) and recommends that Congress monitor the impact of the Lenz court test for knowing misrepresentation under Section 512(f) that may cause liability to the rights holder for not considering a fair analysis prior to sending a DMCA notice and consider clarifying language on this issue as necessary.
  • Standard and non-standard notice requirements: the Copyright Office recommends shifting the notice standards requirements in Section 512(c) to a "regulatory process". Some of the OSP-imposed requirements in their takedown forms are inefficient for rights holders. Additionally, some of the current notification standards are becoming out of date.
  • Time frames under Section 512: under Section 512(g)(3), within 10 to 14 days an OSP must restore the allegedly infringing content in response to a counter notice if the alleged infringer does not file a lawsuit relating to the content at issue. The Copyright Office recommends an ADR model because the current mechanism is considered to be too long to block speech and yet too short to realistically file suit.
  • Subpoenas: the Copyright Office believes that the language in Section 512(h) is ambiguous as to whether mere conduit OSPs may also be subpoenaed for alleged infringer identification and thus recommends some clarification as to this area.
  • Injunctions: the Copyright Office sees no need for congressional intervention in this area unless Congress believes that the current narrow interpretation of injunctive relief under Section 512(j) should be broader than it has been in practice.

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)

Endnotes

(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.

(3) Id, pp 64-72.

(4) Id, pp 7 and 198.

(5) Lenz v Universal Music Corp, 801 F 3d 1126, 1154 (9th Cir 2015) (holding that a rights holder must consider fair use before sending a DMCA takedown notification).

(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.