U.S. Copyright Office: DMCA Is “Tilted Askew,” Recommends Remedies for Rightsholders

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On May 21, 2020, the U.S. Copyright Office released its first full report—based on 92,000 written comments, five roundtables and decades of case law—on the Digital Millennium Copyright Act (17 U.S.C. § 512). The analysis was intended to determine whether the DMCA’s safe harbor provisions effectively balanced the needs of online service providers and rightsholders. The Copyright Office concluded that the balance is “tilted askew,” with largely ineffective copyright infringement protections for rightsholders.

When Congress enacted the DMCA in 1998, the safe harbors were designed to balance two goals: (1) preventing the potentially large economic impact of copyright infringement liability for OSPs, and (2) protecting rightsholders against “the threat of rampant, low-barrier online infringement.” In its recent report, however, the Copyright Office found that a balance has not yet been achieved.

To remedy the imbalance of the current implementation of the DMCA and better reflect the technological advances of the 21st century, the Copyright Office offered several recommendations. Notable suggestions include: (1) narrowing the eligibility of OSPs, (2) strengthening the deterrent factors of the DMCA, (3) clarifying the knowledge requirement and (4) making procedural modifications.

In narrowing the eligibility of OSPs, the Copyright Office reported that activities shielded from liability for being “related to” storage under § 512(c) is interpreted too broadly and should be limited to acts of storage or providing access to content. The Copyright Office also questioned whether technology services beyond providing internet, such as peer-to-peer systems and payment processors, should be included under § 512(a).

To strengthen the deterrent capabilities of the DMCA, the Copyright Office suggested requiring a clear, documented and publicly available repeat infringer policy and for Congress to clarify the “appropriate circumstances” for termination of a user’s account based upon repeated acts of infringement. It also suggested increased penalties for knowingly making material misrepresentation in takedown notices and counter-notices. However, the Copyright Office noted that in Lenz v. Universal Music Corp., the Ninth Circuit may have been too heavy handed in imputing a fair use in good faith requirement when issuing a takedown notice and that Congress should monitor the impact and potential liability imposed on rightsholders who submit takedown requests on infringing works without a fair use inquiry.

To better understand the knowledge requirement, the Copyright Office suggested drawing a more definitive distinction between “actual” and “red flag knowledge, under section 512(c) or (d) safe harbors” and adding a reasonableness standard to the knowledge requirement that would account for the differences among OSPs.

Procedurally, the Copyright Office suggested shifting the submission process of takedown notices to a regulatory process, which would enable the Copyright Office to set more flexible rules and “future-proof” the statute against changing communications methods. It also suggested creating an alternative statutory method for the adjudication of online infringement claims. The Copyright Office noted that the current 10 – 14 days is both too long for legitimate speech to be blocked, and too short for a rightsholder to prepare and file a federal lawsuit.

Going forward, the Copyright Office plans to post a new website—copyright.gov/DMCA—with several educational and practical elements, including model takedown notices and counter-notices. In addition, the U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property plans to draft changes to the DMCA by the end of 2020. Any changes made will be critical for the copyright community to monitor closely.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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