The U.S. Copyright Office recently called for changes to the Digital Millennium Copyright Act (“DMCA”). Congress enacted 17 U.S.C. § 512 of the DCMA to balance the threat of liability for copyright infringement on online service providers with “the threat of rampant, low-barrier online infringement.” This was accomplished with the use of “safe harbors” for service providers if, e.g., they quickly take down infringing content upon receiving notification of such infringement by a copyright holder. While this has allowed service providers to grow without facing debilitating lawsuits it has also created the “‘whack-a-mole’ problem of infringing content reappearing after being taken down.”
Therefore, the Copyright Office conducted a study based on several guiding principles, including that copyright protection online must be meaningful and effective and internet policy in today’s age cannot be one-sized fits all. Based on its own analysis, the Copyright Office concluded that the originally intended balance sought by Congress “has been tilted askew.”
The Copyright Office made several findings and suggestions to try and re-balance the DMCA. For example, to qualify for safe harbor, a service provider must have “adopted and reasonable implemented… a policy that provides for the termination in appropriate circumstances of subscribers and account holders… who are repeat infringers.” Under the current interpretation, compliance with the law may be found if a service provider merely adopts an unwritten policy that is never shared with its users. However, and in an apparent adoption of the Fourth Circuit’s holding that repeat infringer under section 512 means repeat alleged (not repeat adjudicated) infringer, the Copyright Office suggests that service providers must have a “clear, documented, and publicly available repeat infringer policy” to adequately deter repeat infringers.
In addition, the Copyright Office asked Congress to clarify the “knowledge” requirements – including the amount of knowledge of infringement a website must have before it takes down infringing content as well as the knowledge (or lack thereof) required to qualify for the safe harbor provisions. The Copyright Office further suggested that Congress should articulate a reasonableness standard that takes into account differences among the service providers that exist.
The Copyright Office also found that several provisions have been expanded to cover activities not contemplated over 20 years ago when enacted by Congress and that some terms could and should be further clarified to achieve the required balance.
It remains to be seen if Congress is inclined to adopt these (and other suggested) proposals but it certainly serves as a good first step in meaningfully protecting copyright owner’s rights online.