EFF to Copyright Office: Safe Harbors Work
The “notice-and-takedown” process for addressing online copyright infringement isn’t perfect: it’s often abused to remove lawful speech from the Internet. But it many cases this process, described in Section 512 of the Digital Millennium Copyright Act (DMCA), works pretty well—particularly because of the safe harbors that protect Internet services that comply with the law. That’s why it’s so frustrating that major media and entertainment companies are still pushing the Copyright Office to recommend throwing away the safe harbors and instead order Internet platforms to filter users’ communications.
The Copyright Office’s study started in early 2016. EFF first submitted comments in April of that year, explaining that any tweaks to Section 512 should focus on protecting Internet speech and creativity for all of us. The safe harbors help protect the Internet as a viable and accessible platform for free expression and innovation, ensuring that online platforms are encouraged to experiment with new forms of communication and connection without threat of costly legal action. That unfettered experimentation creates new ways for everyone to share and comment and create art without undue copyright claims resulting in the removal, blocking, or filtering of content from Internet services.
The study is ongoing, and EFF submitted reply comments Tuesday reinforcing these arguments. But of course, in the last year we’ve seen a lot of submissions featuring the hysteria of major entertainment companies and their grab for more control. These copyright holders claim that more onerous processes, like mandatory filtering, are needed to make sure that Internet platforms and their users stop acting out. In short, many copyright holders would prefer to sacrifice your voice or the next fun social media product you might like to use in exchange for even more dangerous private policing of the Internet.
So while 512 could be implemented more fairly to users and innovators, it’s hard to escape the thought that this study is only treading well-worn ground, allowing Big Content to continue pushing a filter-everything approach.
The Copyright Office is working on other reviews of the law that could be more meaningful in the long run. The office is looking into Section 1201 of the DMCA—a provision that is blatantly unconstitutional. The anti-circumvention provisions of Section 1201 block your ability to access, use, or even discuss copyrighted materials if they are protected by digital rights management software. We are working on a lawsuit challenging Section 1201 because of the damage that it does, and we wish the Copyright Office would focus its attention there.