The Digital Millennium Copyright Act (DMCA) should be reformed to help promote openness online. We’ve made this case before, posting about section 1201 on the circumvention of technological protection measures. Now, the U.S. Copyright Office has sought comments on section 512, on liability for intermediaries whose services may facilitate activity that infringes copyright. In this area, too, we argue for changes to better support openness. So, we filed comments in response to this consultation last week.
Section 512 gives an exemption (also known as a “safe harbor”) to the normal presumption of liability for copyright infringement, if the intermediary (usually a website, platform or ISP) follows a set of defined processes to deal with copyright complaints. These processes are centered around DMCA notices and counter-notices, and are a common occurrence in online life for creators who take advantage of fair use and other exceptions to copyright to build upon the work of others. Section 512’s protections have enabled the massive growth both of online services and, thereby, of the market and opportunities for licensing copyrighted works. Both of these outcomes have delivered great benefits to Internet users. Some believe these benefits have come with huge costs to rightsholders and believe the current approach should be gutted and replaced with a more punitive “notice-and-staydown” strategy; we believe these proposals should be ignored. But, there is room for improvement.
Because of important nuances of copyright law, it is not just the content but also the context in which content is found that determines infringement. For example, a piece of content can be used as a parody or for criticism or comment – or the user may hold a license permitting the activity – which would not constitute infringement. However, automated systems which generate the majority of section 512 notices today work by detecting the presence of particular content. These systems cannot account for context, and thus many activities that are non-infringing trigger burdensome enforcement processes. This confusion, problematic in the current regime, would be amplified many times in a “notice-and-staydown” regime.
In our filing, we offer three main proposals for reform to improve on the current system:
- Rebalance the underlying incentive structures by introducing statutory damages as a component of the remedy for unwarranted DMCA takedown requests;
- Attach penalty of perjury to the accuracy of notices as a whole, not merely the authority of the complaining party to act; and
- Give intermediaries some discretion to preserve the availability of content during the statutory 10-day waiting period under good-faith belief of invalidity of the notice (for example, for users who are frequently targeted with invalid notices).
Considering how long ago it was written, and the major technological advancements since then, section 512 has aged very well. It should be viewed generally as a farsighted and well-designed attempt to promote the interests of users who want engaging online services. We hope that the reforms we propose will be adopted to ensure that it continues to maximally promote innovation and creativity online.