The following post comes from Liz Velander, a recent graduate of Scalia Law and a Research Assistant at CPIP.
By Liz Velander
In late September, the House Judiciary Committee held a hearing entitled Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. 512 After Two Decades. As Chairman Jerrold Nadler (D-NY) explained, the hearing sought “perspectives on whether Section 512 is working efficiently and effectively for this new internet landscape.” The hearing was guided by the U.S. Copyright Office’s Section 512 Report, released in May, which concluded that the operation of the Section 512 safe harbor system disfavors copyright owners—contrary to “Congress’ original intended balance.”
The witnesses included: Jeffrey Sedlik, President & CEO, PLUS Coalition; Meredith Rose, Senior Policy Counsel, Public Knowledge; Morgan Grace Kibby, Singer and Songwriter; Jonathan Band, Counsel, Library Copyright Alliance; Matthew Schruers, President, Computer & Communications Industry Association; and Terrica Carrington, Vice President, Legal Policy and Copyright Counsel, Copyright Alliance.
Enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA), Section 512 establishes a system for copyright owners and online service providers (OSPs) to address online infringement, including a “safe harbor” that limits liability for compliant OSPs. To qualify for safe harbor protection, an OSP must fulfill certain requirements, generally consisting of implementing measures to expeditiously address online copyright infringement. Congress sought to create a balance between two goals in enacting Section 512: (1) 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 user activity, and (2) protecting the legitimate interests of authors and other rights owners against the threat of rampant, low-barrier online infringement.
The Copyright Office’s Report determined that the balance Congress originally sought is now “askew.” It found that “despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of Section 512 notices to address that situation, remain significant problems.” The Report did not recommend any wholesale changes to Section 512, but instead identified certain areas that Congress could fine-tune in order to better balance the rights and responsibilities of OSPs and copyright owners. These include eligibility qualifications for the service provider safe harbors, repeat infringer policies, knowledge requirement standards, specificity within takedown notices, non-standard notice requirements, subpoenas, and injunctions.
At the hearing, the six witnesses reacted to the Copyright Office’s Report in dramatically different fashions. Representatives of OSPs disagreed with the Report’s conclusions, testifying that Section 512 is working as Congress intended. Mr. Band from the Library Copyright Alliance referred to Section 512 as a “shining example of enlightened legislation for the public good” that is responsible for the “golden age of content creation and distribution.” Mr. Schruers from the Computer & Communications Industry Association criticized the Report for inadequately reflecting the interests of users and “conspicuously” overlooking the problem of Section 512 misuse. Ms. Rose from Public Knowledge stated “the Office’s analysis performed a familiar sleight-of-hand by presenting user interests as coextensive with those of platforms, effectively erasing free speech concerns from its analysis.”
Representatives of content creators painted an entirely different picture of Section 512’s efficacy. They applauded the Copyright Office for calling attention to areas of imbalance related to Section 512 and to how overly expansive or narrow interpretations of the statute have aided in skewing the balance Congress intended. Mr. Sedlik, a photographer with over 35 years of professional experience and President & CEO of the PLUS Coalition, described how service providers take advantage of his and others’ copyrighted works while hiding behind Section 512’s safe harbors. He explained that, like many other copyright owners, he must spend an exorbitant amount of time searching for infringing materials online and sending takedown notices instead of creating new works.
Ms. Kibby, a singer and songwriter, testified that Section 512 is “undermining creativity, and more alarmingly, quietly undercutting our next generation of artists. It is jeopardizing livelihoods for working class musicians, obliterating healthy monetary velocity in our creative community. It is rewarding unscrupulous services that deal in the unauthorized trade and use of our works. It is fundamentally sabotaging the legitimate online marketplace that we all rely on and that Congress envisioned.” Responding to the argument that notice-and-takedown results in censorship of user-generated content, Ms. Kibby said that Section 512’s “stripping creators of their fundamental rights, their livelihood, and ultimately their creative contributions is the real censorship.”
Ms. Carrington from the Copyright Alliance identified three main problems with Section 512: (1) the ineffective notice-and-takedown process, (2) the effective elimination of the red flag knowledge standard, and (3) ineffective repeat infringer policies. She recommended adjusting the statute to clarify the difference between actual and red flag knowledge, enacting the Copyright Alternative in Small-Claims Enforcement (CASE) Act, and transparently developing effective standard technical measures (STMs).
Members of the Committee recognized the need for reform. Chairman Nadler remarked that the sheer volume of takedown notices being sent does not seem like the hallmark of a system functioning as intended. Some Members first spoke about the importance of copyright law before questioning the panelists. For example, Representative Hank Johnson (D-GA) said “it’s crucial that these creators are able to rely on copyright law protections to make their living. This is even more true in an age where the click of a button can plagiarize a lifetime of work.”
It was heartening to hear the Representatives’ positive response to the concerns of small, individual creators whose livelihoods depend on the commercial viability of their works. It was clear that the Committee is seriously considering the recommendations in the Copyright Office Report and looking for a way to rebalance Section 512 so that it respects what Congress originally intended—a system that respects the rights of authors and artists who face widespread infringement of their rights in the online environment.