Copyright Office DMCA Proceeding Asks: It’s 2016, so why are we Copyrighting Like It’s 1999?

(Notice of Inquiry latest opportunity to weigh in on the future of the DMCA Safe Harbor)

"I was dreamin' when I wrote this, so sue me if I go too fast""

Those are lyrics from the dearly beloved and extremely talented musician Prince's epic 1982 hit "1999" from the album of the same name. He was writing about the possibility that within just 18 years none of us might exist because Nuclear Armageddon was possible at any minute (he always excelled at masking dark lyrics with a catchy beat).

Other than the fact that it's awesome, why am I quoting "1999" in this post? Because in 2016 - 18 years after the passage of Section 512 of the Digital Millennium Copyright Act (DMCA) - the Copyright Office is taking a hard look at whether the law should still exist and, if so, whether changes need to be made. And because a Notice issued by the Copyright Office (CO) on November 8, 2016 seeking further comments on several DMCA-related topics can trace its roots, in part, to a lawsuit relating to another hit from the Purple One himself: "Let's Go Crazy." Comments must be submitted by February 6, 2017; empirical research studies must be submitted by March 8, 2017.

Section 512 was enacted as part of the DMCA in 1998. It was a different time; in fact, as a Sign O' the Times it is worth noting that less than 5% of the world's population used the Internet. But the potential for Revolution(ary) change was there - as long as copyright infringement lawsuits didn't prevent it first. The purpose of Section 512 was to try and keep small copyright infringement disputes out of the courts - especially those which might be filed against Internet Service Providers ("ISPs") who could otherwise be sued for the infringing activities of third parties. Under the law, qualifying service providers who meet certain obligations and requirements can receive immunity from liability for contributory infringement.

These service providers generally fall into 4 different categories with varying levels of "safe harbors":

Those who serve as a conduit for the automatic online transmission of material as directed by third parties

Those engaged in caching (i.e., temporarily storing) material that is being transmitted automatically over the Internet from one third party to another

Those who host material at the direction of a user on a service provider's system or network

Those who refer or link users to online sites using information location tools as a search engine

The eligibility requirements vary from category to category, as do the obligations to act in the event of an alleged 3^rd party infringement.

Here is a non-comprehensive, basic outline of those requirements and obligations:

By far and away the best-known requirement involves maintenance of a notice-and-takedown process, including acting expeditiously to remove or disable access to infringing material upon actual knowledge or notification by the copyright owner of an alleged infringement. It is also the source of significant Controversy.

Copyright owners don't love this regime because it often amounts to a game of "whack-a-mole." They may send a takedown request and successfully have their copyrighted content removed from a particular site, only to see it arise somewhere else - or even on the same site - later. Smaller copyright owners don't have the resources or technology to scour the web to even find infringing uses. Many have suggested that the "notice-and-takedown" procedure should be converted into a "notice-and-staydown" procedure whereby a service provider would have to make commercially reasonable efforts to keep infringing material off its site once an effective and uncontested takedown notice has occurred.

Several parties - especially website operators - also feel a burden to keep up, even as they acknowledge that they are benefiting from the immunity provisions. Hundreds of millions of "takedown requests" are sent from copyright owners to website operators every year. According to an earlier Notice and Request for Public Comment in this proceeding, Google alone received approximately 230 million requests in 2013 and 345 million in 2014. Imagine if Google could have been sued - or threatened with suit - in all those instances (hint: YouTube probably wouldn't exist today).

Finally, many individuals and free speech organizations feel the notice-and-takedown regime is too weighted in favor of copyright owners, putting individual webizens in a defensive position upon the filing of any Takedown request, especially if that individual doesn't have a good understanding of his or her right to file a "counter-notification." There are also concerns that abusive takedown requests have become the norm - or at least are all too common - as evidenced by the takedown requests that have been catalogued for years on the Lumen (formerly Chilling Effects) website.

This, of course, is where we get back to Prince. As I have documented in earlier posts, litigation surrounding a YouTube video including a short clip of "Let's Go Crazy" went on for almost a decade and has only now resulted in the first "teeth" behind a requirement that a copyright owner consider whether the allegedly infringing content is authorized by law. This may have an effect on the amount of takedown requests filed each year - both abusive and legitimate - but my guess is that it will not be a profound effect.

So the big question raised by the CO is whether a law passed in the 20^th Century is still the best policy in the 21^st. They aim to answer this by receiving "public input, including, where available, empirical data on the efficiency and effectiveness of section 512 for owners and users of copyrighted works and the overall sustainability of the system if, as appears likely, the volume of takedown notices continues to increase."

This is actually just the latest attempt by the CO to get to this thing called the DMCA. The CO issued a Notice of Inquiry on December 31, 2015 seeking answers to 30 questions across 8 categories. It received more than 92,000 written submissions. The CO also convened separate two day roundtables in New York and San Francisco in May 2016 which provided additional opportunity to address the original 30 questions, as well as any other questions relating to the DMCA. Transcripts of those proceedings are available online.

These earlier public comments and round-table discussions revealed certain general themes in three broad topic areas:

Characteristics of the Current Internet Ecosystem

Participants noted a wide diversity of experiences and views among DMCA participants, even within similar stakeholder groups. For instance, content creators come in all sizes. Larger companies have tools available to them which make it easier to address infringement than it is for smaller companies or individuals. There is even a noticeable difference in the quality of takedown notices drafted by these larger entities vs. smaller companies or individuals. The same is true on the ISP side, where larger companies are better equipped to respond to takedown notices.

Operation of the Current DMCA Safe Harbor System

While some participants said the current system works well, many did not. ISPs tended to favor the current Internet ecosystem, describing it as thriving and vibrant even as they receive an ever-increasing number of takedown notices. At the same time, they identified abusive takedown notices as a major problem.

Content creators largely described the system as inefficient and ineffective. They countered the ISPs' view of takedown notices by claiming abuse is rare. In fact, they see identified ISP-specific web forms as barriers to effective use of the DMCA.

Potential Future Evolution of the DMCA Safe Harbor System

There was a common enthusiasm for creating government and private-sector educational materials on copyright and Section 512, perhaps targeted to individual groups (i.e., ISPs, content creators, users, etc.). Also generating support was the idea of industry-wide or sub-industry-specific voluntary measures. However, potential legislative changes were also proffered, including a possible "notice-and-staydown" procedure that might pre-screen user uploads.

[Editorial Note: I actually wrote, but did not post, something about that first Notice of Inquiry back on December 31 (which is one of the reasons I was thinking about 1999, since it always seems to be played around New Year's Eve). Of course, in the intervening time, Prince died. I'm sure we all hope he's in a place of never-ending happiness, where you can always see the sun, day or night.]

This time around, the CO raises 16 questions across those same 3 major topic areas, as well as some miscellaneous questions:

Characteristics of the Current Internet Ecosystem

How should improvements in the DMCA safe harbor system account for the diversity among the content creators and ISPs who comprise the Internet ecosystem, especially with regard to the size of the requester and receiving entity?

Are there specific issues for which it is particularly important to take into account the perspective of individual Internet users and how do we factor them in?

Operation of the Current DMCA Safe Harbor System

How can the CO account for the widely divergent views on the overall effectiveness of the DMCA? Is there a neutral way to measure the effectiveness of the DMCA safe harbor in terms of supporting Internet growth and addressing online privacy?

What are the most significant barriers to use of the notice-and-takedown and counter-notice procedures and how can they be addressed?

Are changes to the DMCA timeline needed (both with regard to the amount of time it takes to get content removed from a website via notice-and-takedown and to get it reinstated via counter-notification)?

How can identified disincentives to filing notices and counter-notifications (such as safety and privacy concerns, intimidating language or potential legal costs) be addressed?

Should penalties for filing false or abusive notice-and-takedown requests be strengthened? If so, how?

What notice or finding should be necessary to trigger a repeat infringer policy? Should the repeat infringer policy vary according to the status of the ISP (i.e., acting as a conduit vs. caching, hosting or indexing)?

Potential Future Evolution of the DMCA Safe Harbor System

How can the CO better educate the public about Section 512?

How can the adopting of additional voluntary measures be encouraged or incentivized?

Should industry-wide or sub-industry-specific technical measures be adopted? If so, what should the government's role be?

As opposed to (or in addition to) the notice-and-takedown system, should there be a "notice-and-staydown" regime? How would it operate? How would legislative language read? If not advisable, why?

What other specific legislative provisions or amendments could improve the overall functioning of the DMCA safe harbor regime?

Other Developments

What is the impact of the two court decisions that have been released since this study began?

What approaches have jurisdictions outside the US taken to address the question of ISP liability and the problem of copyright infringement on the Internet?

And, of course, there's the ubiquitous "catch all" request to "Please identify and describe any pertinent issues that the Copyright Office may wish to consider in conducting this study."

So, taking us out with some more lyrics from "1999", if you have lion in your pocket, and baby he's ready 2 roar, make sure you get your comments in to the Copyright Office by February 6, 2017; empirical research studies providing quantitative or qualitative data must be submitted by March 8, 2017.