September 16, 2020 PERSPECTIVE

Thorny Copyright Issues—Development on the Horizon?

June M. Besek

©2020. Published in Landslide, Vol. 13, No. 1, September/October 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Today there are countless copies of works available for free on the internet to the detriment of their copyright owners. Under the Digital Millennium Copyright Act (DMCA), copyright owners can get their works removed from an online service provider’s (OSP’s) service by sending a notice to the OSP. But because works can now be copied and distributed with lightning speed, the takedown provisions are of limited effect. Even where copies are removed, they’re often promptly uploaded again by users—a phenomenon referred to as the “whack-a-mole” problem. The result is that unauthorized copies of copyrighted works are perpetually available on the internet.

Congress has embarked on an ambitious project to amend the DMCA, in particular its notice and takedown procedures. In 1998, when the law was passed, Congress believed that OSPs risked potential liability for copyright infringement because of their activities, e.g., copying and distributing copyrighted works. Congress reasoned that without “safe harbors” from infringement liability, OSPs would be reluctant to expand their activities, thus impeding the growth of the internet. These safe harbors, codified in § 512 of the Copyright Act, limit OSPs’ potential liability only to injunctions, and then only in limited circumstances, provided they comply with the statutory conditions.

One of the § 512 safe harbors limits OSPs’ liability concerning infringing materials placed on their services by third parties. To get the benefit of this safe harbor, the OSP must abide by several statutory requirements, among them:

  1. The OSP must remove the infringing material from its service “expeditiously” upon receipt of a proper notice from a complaining copyright owner.
  2. If the party who posted the allegedly infringing material sends a proper counter-notice, the OSP must put the material back up no less than 10 days or more than 14 days from the counter-notice, unless the complainant initiates a legal action for an order to restrain infringement by the posting party.
  3. Even without notice, if the OSP has actual knowledge of the infringing material, or is aware of facts and circumstances from which infringing activity is apparent (“red flag knowledge”), it must respond expeditiously to remove the infringing material.
  4. The OSP must terminate repeat infringers.

Congress thought these provisions would provide a fair balance: protecting OSPs and fostering the growth of the internet. Responsibility to identify infringing material would remain with copyright owners, who would benefit from the ability to get infringing material taken down simply by notification to the OSP.

But this isn’t the way notice and takedown procedures have worked. Since 1998, with the explosion of the internet, the number of notices of infringement has also grown at such an astonishing rate that today they threaten to overwhelm the notice and takedown system. As the Copyright Office observed in its recent report, Section 512 of Title 17 (Section 512 Report), from 1998 to 2010, Google received notifications for fewer than three million URLs containing allegedly infringing content. In 2017, Google received notices relating to 882 million URLs.

The Section 512 Report describes the current problems and suggests where Congress might consider changing the law. Even before its release, the Subcommittee on Intellectual Property of the Senate Judiciary Committee began a series of hearings on the DMCA, devoted in large part to how § 512 is working. The House has also shown interest in these issues and plans to embark on a series of “listening sessions” with various groups of stakeholders.

Right holders and others are far apart as was clear in the issues they raised in the Copyright Office proceedings and recent Senate hearings:

Right holders emphasize the burdensome nature of having to send takedown notices repeatedly for the same material, citing the whack-a-mole problem, as discussed above. The current regime is a drain on their time, attention, and money, diminishing the number of new works they can create. Many recommend a “take down, stay down” rule. OSPs, on the other hand, argue that the law is working as Congress intended. The relative certainty provided to OSPs by § 512 has led to innovations in technology, cooperation among stakeholders, and rapid growth of the internet. A take down, stay down policy could adversely affect free speech, because posting a work in one context may be infringing, while in another context may be permissible.

Copyright owners maintain that courts’ narrow interpretation of red flag knowledge removes the force of that provision. They argue that courts are so reluctant to find that an OSP should have known of infringement, that only actual knowledge or receipt of a notification triggers an OSP’s takedown obligation. OSPs posit that infringements aren’t apparent on their face, even if a file has a title highly suggestive of infringement. OSPs say that they would have to investigate further to determine if a file is infringing, and § 512(m) provides that they have no obligation to do so.

Additional issues concerning § 512 are under discussion. Section 512 creates a hardship for many stakeholders. Large entities on both sides are better off than their smaller counterparts because they can afford automated systems to identify infringements, serve notices, and respond to those notices. Individuals or small copyright owners cannot realistically take advantage of filtering systems such as Google’s Content ID.

Copyright legislation can take years to develop, and stakeholder positions are widely divergent. So, it’s unrealistic to expect Congress to resolve these issues anytime soon. But it is encouraging that the process has now begun.

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    June M. Besek is chair of the ABA Section of Intellectual Property Law. She is the executive director of the Kernochan Center for Law, Media and the Arts and a lecturer in law at Columbia Law School. Her research and teaching focus on copyright and related rights, particularly as they relate to new technologies.