US Copyright Office: DMCA's safe harbour system is "unbalanced"

By Emmanuel Legrand

The United States Copyright Office (USCO) has opened the door to a possible revision by Congress of the safe harbour provisions contained in section 512 of title 17 of the United States Code by concluding that the mechanism set in the 1998's Digital Millennium Copyright Act (DMCA) was "unbalanced" and skewed in favour of digital platforms.

  The comments were included in a 200-page report from the USCO to Congress and is the first government study of the effectiveness of the notice-and-takedown system since its enactment over twenty years ago.

  In the report, the Copyright Office wrote that "despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of section 512 notices to address that situation remain significant problems."

Balance titled askew

  The report noted the difference of interpretation of the workability of section 512 according to whether it was seen from a rights holders' or from an Online Service Providers (OSP) perspective. The report reads: "Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rights holders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the 'whack-a-mole' problem of infringing content reappearing after being taken down. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress' original intended balance has been tilted askew."

  “The Copyright Office’s report validates what every working musician knows: the music copyright system is broken and must be fixed," enthused Irving Azoff, manager of acts such as the Eagles and Fleewood Mac, and a Board Member of the Music Artists Coalition (MAC). "The interpretation of the DMCA by big tech strips music creators of the rights granted to them by the Constitution. Technology companies fight vigorously to protect their intellectual property but trample on copyright. The time has come for big tech to pay attention, read this report, and work with us to fix the system, rather than hiding behind an antiquated law that harms our working musicians, songwriters, producers and recording artists.”

  Meanwhile, the Electronic Frontier Foundation tweeted that the Copyright Office had “incorrectly determined that the only groups whose concerns should be addressed are those of large tech companies and major rights holders” and "ignored the users who will actually bear the brunt of these policies." "The DMCA is not just a protection for Big Tech; it is the cornerstone of the internet," wrote the internet advocacy group.

92,000 written submissions

  The report, which has been five years in the making, follows a 2015 request from the then-Ranking Member of the House Judiciary Committee. Since then, the USCO received 92,000 written submissions, held s series of roundtables with stakeholders and in New York and San Francisco, and published a Notice of Inquiry in 2016 assessing the operation of the safe harbour provisions on a quantitative or qualitative basis, which received 79 written comments and nine empirical studies in response.

  DMCA's section 512 established a framework for copyright owners and online platforms to address online infringement to provide “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the online networked environment.”

  It included limitations on liability for compliant service providers.To qualify for protection from infringement liability, a service provider has to fulfill certain requirements, generally consisting of implementing measures to expeditiously address online copyright infringement.

A 'whack-a-mole' system

  However, rights holders have been complaining for years that the notice-and-takedown system was nothing but a "whack-a-mole" system, with infringed copyright files re-appearing within minutes of their takedown.

  In reviewing the section 512 system, the Copyright Office identified five important principles that guided its analysis:
- Copyright protection online must be meaningful and effective;
- Online service providers operating in good faith must be afforded legal certainty and leeway to innovate;
- Congress intended to incentivise cooperation between online service providers and rights holders, but cooperation cannot be the only answer;
- Government decision-making should be based on evidence, as mush as it is possible to do so;
- Internet policy in the twenty-first century cannot be one-size-fits-all.

  The Copyright Office concluded that the operation of the section 512 safe harbour system today was "unbalanced" with specific areas "where current implementation of section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbours, repeat infringer policies, knowledge requirement standards, specificity within takedown notices, non-standard notice requirements, subpoenas, and injunctions."

Areas ready for fine-tuning

  However, the USCO fell short of offering "any wholesale changes to section 512, but instead identifies certain areas where Congress may wish to fine-tune section 512’s current operation in order to better balance the rights and responsibilities of online service providers and rights holders in the creative industries."

  The Report also identified what it describes as "non-statutory areas of untapped potential" to increase the efficacy of section 512 and recommended additional stakeholder and government focus in the areas of education, voluntary cooperation, and the use of standard technical measures. "The Office believes additional study and consultation would be needed before moving forward with such proposals," said the USCO.

  What will happen now depends of Congress and its willingness to legislate in the matter. Since most OSPs are satisfied with the way the system works for them, it is likely that they try to block any attempts to change the system in favour of rights holders.

A broken system

  The creative sector welcomed the report. "As this report makes clear, the current system is broken – especially when it comes to so-called ‘user-upload platforms’," said in a joint statement the American Association of Independent Music (A2IM), the Music Artists Coalition (MAC), the National Music Publishers Association (NMPA), the Recording Industry Association of America (RIAA), the Songwriters of North America (SONA) and SoundExchange. They added: "To succeed, platforms must be made accountable participants in the music ecosystem. But the good news is that many of these issues can be addressed by the big technology platforms who exploit music, including by applying already widely available technologies."

  The organisations list three initiatives platforms could do "right now to begin to address the issues identified in the report":
- Ensure that ‘take down’ means ‘stay down’ by implementing "meaningful, robust processes to ensure that once infringing content is taken down, the same infringing content does not immediately re-appear on the same service."
- Thwart stream-ripping services by having on-demand video streaming services ensuring that their technological protection measures "stay ahead of the stream-ripping services, and by aggressively monitoring when and how their technical protections are being breached."
- Permit copyright owners to monitor infringement of their own works, with social media platforms providing tools "that allow copyright owners – regardless of their size – to monitor infringement of their own works and establish automated and scalable notice and takedown systems like many other user-upload platforms already have.” 

  Comments from industry executives included:
  > “Technology companies have shown they can solve some of the world’s most difficult technical problems – legal, financial, or otherwise," said Mitch Glazier, Chairman and CEO of the RIAA, who expects that Congress "will closely review both the Copyright Office report and the steps taken by the platforms to fix the issues it has identified."

  > Richard Burgess, President and CEO of A2IM, called for "common sense fixes" that would "narrow the gap, especially for independent artists and labels that lack the means to adequately protect their intellectual property when they are up against internet platform behemoths that are literally the richest companies on earth."

  > For David Israelite, President and CEO of the NMPA, the report "outlines where the system is failing, and we hope that it underscores the need for tech companies to do more about the theft they know they are enabling."

  > "If we have to live with the DMCA system, it needs to be takedown, staydown. If there are better tools available to filter out repostings, all creators should have the opportunity to use those tools, not just bigger players. Songwriters should be spending their time writing songs, not sending takedown notices," said Michelle Lewis, Executive Director, of SONA.

  > Michael Huppe, President and CEO of neighbouring rights society SoundExchange, said: “As this study shows, today’s creators are forced to spend immense (and sometimes impossible) efforts trying to protect their rights. This is fixable, but it requires the cooperation of Big Tech companies that allow their platforms to trample the rights of creators while hiding behind the DMCA. The system can work better, and we all deserve a higher standard.”

  > Copyright Alliance CEO Keith Kupferschmid said the report was "extremely important to the copyright community." He added: “Section 512 of the DMCA does not work effectively or efficiently for creators, and online service providers must do more to hold up their end of the bargain. As we continue to read and digest the vast report, we applaud the Office for calling attention to areas of imbalance in the framework of Section 512, and how overly-expansive or narrow interpretations of the statute over the years have led to applications of the law that may differ from Congress’ original intent."

  “When you cut through the bureaucratic caution and legalese, this report describes a simple, brutal truth: The tech monopolies are failing artists, songwriters, and music fans. And they couldn’t care less," commented the Artist Rights Alliance. “If we could get some common decency from the Silicon Valley giants, we could work out solutions to many of these issues without changes to the law. The Judiciary Committees asked for this report and must now push tech companies to find these solutions and insist that independent creators have a seat at the table. If that fails, Congress must act.”

  > Former Register of Copyrights Maria Pallante, now President and CEO of the Association of American Publishers (AAP), commented: "We are pleased the report concludes that ‘the balance Congress intended when it established the section 512 safe harbor system is askew,’ and underscores that ‘authors, creators, and rights holders of all sorts and sizes’ do not agree with online service providers that the current operation of 512 meets the original objectives of Congress."
 

  She added: “This report reinforces that the broken notice and takedown system in the US – also known as ‘whack-a-mole’ – has placed unfair burdens on the creative industries, which contribute more than $1 trillion in value to the US economy and employ more than 5.7 million workers. We are committed to finding solutions to these problems, and we stand ready to continue to work with the Copyright Office, other stakeholders, and Congress as we seek to establish a 21st century Internet policy that works for everyone.”