from the how is this possible? dept
More than four years ago, the Copyright Office kicked off a project to do a big “study” on Section 512 of the DMCA, better known as either the “notice-and-takedown” section of copyright law, or the “safe harbors” section for websites. The Office took comments, held a few, somewhat bizarre “roundtables” (that we participated in)… and then… silence. Years of silence. Until yesterday when it finally released the report. It’s 250 pages and there’s a lot in there — and we’re likely to have a few more posts on it as we dig into the details, but to kick it off, I wanted to highlight just how bizarre a report it is, in that the authors don’t seem to realize or ever acknowledge that the purpose of copyright law (and even this section) is to create the best possible services for the public.
Instead, the report seems to frame the entire Section 512 debate as a battle between the legacy copyright industry and giant internet companies. From the executive summary:
In enacting section 512, Congress sought to create a balance between two goals. One is
providing important legal certainty for OSPs, so that the internet ecosystem can flourish without
the threat of the potentially devastating economic impact of liability for copyright infringement as
a result of their users’ activity. The other is protecting the legitimate interests of authors and
other rightsholders against the threat of rampant, low-barrier online infringement. Congress
balanced these interests through a system where OSPs can enjoy limitations on copyright
liability—known as “safe harbors”—in exchange for meeting certain conditions, while giving
rightsholders an expeditious and extra-judicial method for addressing infringement of their
works. Thus, for some types of OSPs, their safe harbors are conditioned on taking down
infringing content expeditiously upon notification by a rightsholder.
In the twenty-plus years since section 512 went into effect, the question has often been
asked whether the balance that Congress sought has been achieved, particularly in the light of the
enormous changes that the internet has undergone. Indeed, that is the question that motivated
the Study that led to the present Report.
But the entire framing of that premise is wrong on multiple levels. For proof, let’s go back to the legislative record and the the Senate Judiciary Committee’s report on why DMCA 512 was necessary, written by long term buddy to the recording industry, Senator Orin Hatch. (As a reminder, Senator Hatch was considered so in the tank for the recording industry that in Rob Reid’s satirical sci-fi novel, Year Zero, about the recording industry, he jokes that Hatch is nicknamed “Senator Fido” for his willingness to do whatever the recording industry told him — so not exactly a defender of the public). Yet, the report makes it abundantly clear that a major stakeholder of the DMCA is the “end-user” and that the DMCA needs to be careful not to be used to take down works that are legitimately placed online. From that report:
The Committee was
acutely concerned that it provide all end-users–whether
contracting with private or public sector online service
providers–with appropriate procedural protections to ensure
that material is not disabled without proper justification. The
provisions in the bill balance the need for rapid response to
potential infringement with the end-users legitimate interests
in not having material removed without recourse.
The Copyright Office was told repeatedly both about this clear stakeholder and was given many, many examples of how the DMCA 512 has failed on that front. And, yet very little of that is reflected in the report. Instead, the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse… and then claims that since only one side is “upset” clearly that means things are out of balance.
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. Rightsholders 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
It’s like the public’s interest has just been written right out of the law by the Copyright Office. And that’s stunning. And it’s also disappointing because our own comments (along with many others) to the Copyright Office highlighted the failing of the notice-and-takedown process in that it frequently censors non-infringing material.
Also, the “conclusion” that the “original intended balance has been tilted askew” also further misrepresents the entire history of the DMCA. Remember, there were two major sections to the DMCA: 512 (the part we’re discussing here, which is the notice-and-takedown safe harbors) and 1201 (which is the digital locks/anti-circumvention parts). Part of the “negotiation” to get the DMCA passed (mainly between legacy copyright holders and telcos) was that these two sections were balanced against each other. That is “copyright guys get 1201 if we protect service providers with 512 safe harbors.” Some of us already had trouble with how unbalanced a trade that was, but the really ridiculous thing here is to have the Copyright Office pretend that 512 alone was designed to be a “balance” between service providers and copyright holders (ignoring the massively unbalanced 1201).
This is like saying “I’ll trade you a bucket of oranges for a watermelon” and then, after that trade is concluded, whining “how come you get all the oranges! That’s unfair!”
There are many, many other problems with the report, and we’ll likely be digging into those in the coming weeks, but the very fact that the report appears to write the public out of its stakeholder analysis (even ignoring the Constitutional underpinnings and the stated basis for the law) suggests that the entire analysis is very, very skewed.
People within the Copyright Office keep telling me that I’m being unfair to the hardworking team there. And, to be clear, I do think that they really do mean well and actually do want to do the right thing. But if they want to be taken seriously, to put out a report that is so off the rails from the very start, it becomes more and more difficult to take their analysis seriously.