US Copyright Office: Congress should wait until EU's Art. 17 is implemented before reforming DMCA's safe harbour provisions

By Emmanuel Legrand

The US Copyright Office (USCO) has suggested that Congress should wait for the European ​Copyright Directive's content liabilities provisions for internet service providers (Article 17) to be fully implemented before considering updating the United States current take-down system and the safe harbour provisions contained in Section 512 of the Digital Millennium Copyright Act.

  The recommendation was made by Maria Strong (pictured, below), the Acting Register of Copyrights and Director of the USCO, in a letter to Senators Thom Tillis and Patrick Leahy from the Senate Judiciary Committee. Strong was responding to a letter co-signed by Tillis and Leahy dated May 29, 2020, in which they asked a series of questions regarding the USCO's recent report on 'Section 512 of Title 17'.

  One of the issues tackled by Strong in her letter is the need to address the notice-and-take-down process in order to achieve "a more equitable balance between deterring bad notices and requiring too much time and effort by a small rights holder to submit a take-down notice."

A burden on small rights holders

  "As the Office noted, the notice-and-take-down system currently imposes a greater burden on small rights holders: these stakeholders often do not have access to the technologies that larger OSPs make available to larger rights holders, such as filtering systems that can identify infringing content and alert the rights holder," wrote Strong.

  However, Strong remained cautious about the notion of stay-down, following a take-down, which is often a request from rights holders who consider that the take-down system does not work as infringing content reappears almost instantly once taken down. "As noted in the Report, there currently is no extant model for successfully mandating universal stay-down," wrote Strong. She then alluded to countries in the European Union that have taken different approaches to implement the requirements of Article 17 of the EU Digital Single Market Copyright Directive.

Evaluate success or failure

 ​  “Given the international nature of the internet, there is a risk associated with being the ‘first mover’ for adoption and implementation of such a requirement," she wrote. “Were the United States to adopt its own implementation method and requirements at the same time as, and without reference to, those adopted by the EU, it would risk placing requirements on OSPs [online service providers] that are either incompatible or otherwise in tension with the EU’s requirements."

  She added: "Incompatible obligations could pose a significant adverse economic impact for US-based OSPs attempting to serve both the domestic and the foreign market. It may, therefore, be prudent to wait and see whether the EU ultimately coalesces around one or two models, and then evaluate the relative success or failure of those models against the current notice-and-take-down system in the United States.​"

Changes to improve the system

  Elsewhere in the letter, Strong identified a series of changes that could improve the system:

  1 - Congress should clarify the distinction between “actual knowledge” and “red flag knowledge.”  Currently, wrote Strong, Section 512 provides that, in order to qualify for a safe harbor under section 512(c) or (d), an OSP must act expeditiously to remove or disable access to infringing material when it has either actual knowledge that the material or activity on its service is infringing, or when the OSP becomes “aware of facts or circumstances from which infringing activity is apparent,” which is commonly referred to as red flag knowledge. Strong notes that "the knowledge requirements could benefit from additional statutory language that could incorporate a reasonableness standard to explicitly take into account differences among OSPs in terms of the sophistication of their operations and their technological capability to respond to red flag knowledge."

  2 - Congress should clarify its intent regarding the content requirements for a valid take-down notice, specifically the provisions concerning the submission of a representative list of infringed works and adequate identification of the location of infringing material, as, according to the USCO, the "current statutory language ambiguous and potentially contradictory."

  3 - The current functioning of section 512 "may be improved" by providing the Office with increased regulatory authority to set standards related to the manner in which compliant notifications may be submitted to designated DMCA agents. Strong suggested that Congress could "grant the Office additional authority to specify criteria related to the location, prominence, and content of the required public identification and contact information of an OSP’s designated DMCA agent on its website, to ensure that the public can easily locate this information."

Offer broader solutions

  4 - The USCO recommended that Congress should consider "not only reforms to section 512(f), but also broader solutions outside of section 512 to address abuse practices generally, including the filing of abusive complaints in court or the sending of abusive cease and desist letters." Strong noted that the issue of abusive allegations of copyright infringement "is serious, and congressional attention to the broader question of how to best discourage such uses of the copyright system could provide more effective mechanisms to address the problem."

  5 - The Office noted "concerns about the ten to fourteen day window in which content remains down following receipt of a counter-notice," but the time frame "is both too long for legitimate speech to be blocked and too short for a rights holder to realistically prepare to file a federal lawsuit to prevent the return of infringing materials." To address this issue, Congress "may wish to consider a more flexible approach that allows users to seek a faster evaluation of their counter-notice or rights holders to seek an extension of the deadline for restoring the content."

  The 19-page letter is available here in full.