U.S. Copyright Office announces study on impact and effectiveness of the DMCA safe harbor provisions
The Digital Millennium Copyright Act’s (DMCA) “safe harbor” provision has long been a source of frustration for creators. For years it’s allowed 3rd parties who enable, and often profit from piracy, to avoid legal liability for infringement. Momentum to tighten eligibility standards to qualify for safe harbor protection has been growing of late, both in courts and at the U.S. Copyright Office. In December, a federal jury’s verdict awarded BMG Rights Management 25 million in damages in its copyright infringement suit against Cox Communications. The suit went forward after the judge ruled against Cox, determining that because of an inadequate “repeat infringer” policy the company did not meet eligibility for a safe harbor defense as stipulated in section §512(i) of the DMCA.
(1)Accommodation of technology.—The limitations on liability established by this section shall apply to a service provider only if the service provider- (A) has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers;
While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement. The growth of the internet has highlighted issues concerning section 512 that appear ripe for study….Among other issues, the Office will consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public.
Many smaller copyright owners, for example, lack access to third-party services and sophisticated tools to monitor for infringing uses, which can be costly, and must instead rely on manual search and notification processes —an effort that has been likened to ‘‘trying to empty the ocean with a teaspoon.’’ In addition to the burden of policing infringement across the internet, copyright owners complain that material they succeed in having taken down is often promptly reposted on the same site—the so-called ‘‘whacka-mole’’ problem. Under section 512 as it has been interpreted, providers are not required to filter out or prevent the reposting of copyrighted content.
Written comments must be received no later than 11:59 p.m. Eastern Time on March 21, 2016. Specific instructions for submitting comments will be posted on the Copyright Office website on or before February 1, 2016. The Office will also be announcing one or more public meetings, to take place after the initial written comments are received, by separate notice in the future.