Outside of the beltway, people all over the United States are taking to the streets to demand fundamental change. In the halls of Congress and the White House, however, many people seem to think the biggest thing that needs to be restructured is the Internet. Last week, the president issued an order taking on one legal foundation for online expression: Section 230. This week, the Senate is focusing on another: Section 512 of the Digital Millennium Copyright Act (DMCA).
The stage for this week’s hearing was set by a massive report from the Copyright Office that’s been five years in the making. We read it, so you don’t have to.
Since the DMCA passed in 1998, the Internet has grown into something vital that we all use. We are the biggest constituency of the Internet—not Big Tech or major media companies—and when we go online we depend on an Internet that depends on Section 512
Section 512 of the DMCA is one of the most important provisions of U.S. Internet law. Congress designed the DMCA to give rightsholders, service providers and users relatively precise “rules of the road” for policing online copyright infringement. The center of that scheme is the “notice and takedown” process. In exchange for substantial protection from liability for the actions of their users, service providers must promptly take down any content on their platforms that has been identified as infringing, and take several other prescribed steps. Copyright owners, for their part, are given a fast, extra-judicial procedure for obtaining redress against alleged infringement, paired with explicit statutory guidance regarding the process for doing so, and provisions designed to deter and remedy abuses of that process.
Without Section 512, the risk of crippling liability for the acts of users would have prevented the emergence of most social media outlets and online forums we use today. With the protection of that section, the Internet has become the most revolutionary platform for the creation and dissemination of speech that the world has ever known. Thousands of companies and organizations, big and small, rely on it every day. Interactive platforms like video hosting services and social networking sites that are vital to democratic participation, and also to the ability of ordinary users to forge communities, access information, and discuss issues of public and private concern, rely on Section 512 every day.
But large copyright holders, led by major media and entertainment companies, have complained for years that Section 512 doesn’t put enough of a burden on service providers to actively police online infringement. Bowing to their pressure, in December of 2015, Congress asked the Copyright Office to report on how Section 512 is working. Five years later, we have its answer—and overall it’s pretty disappointing.
Just Because One Party Is Unhappy Doesn’t Mean the Law is Broken
The Office believes that because rightsholders are dissatisfied with the DMCA, the law’s objectives aren’t being met. There are at least two problems with this theory. First, major rightsholders are never satisfied with the state of copyright law (or how the Internet works today in general)—they constantly seek broader restrictions, higher penalties, and more control over users of creative work. Their displeasure with Section 512 may in fact be a sign that the balance is working just fine.
Second, Congress’s goal was to ensure that the Internet would be an engine for innovation and expression, not to ensure perfect infringement policing. By that measure, Section 512, though far from perfect, is doing reasonably well when we consider the ease of which we can distribute knowledge and culture.
Misreading the Balance, Discounting Abuse
Part of the problem may be that the Office fundamentally misconstrues the bargain that Congress struck when it passed the DMCA. The report repeatedly refers to Section 512 as a balance between rightsholders and service providers. But Section 512 is supposed to benefit a third group: the public.
We know this because Congress built-in protections for free speech, knowing that the DMCA could be abused. Congress knew that Section 512’s quick and easy takedown process could result in lawful material being censored from the Internet, without any court supervision, much less advance notice to the person who posted the material, or any opportunity to contest the removal. To inhibit abuse, Congress made sure that the DMCA included a series of checks and balances. First, it created a counter-notice process that allows for putting content back online after a two-week waiting period. Second, Congress set out clear rules for asserting infringement under the DMCA. Third, it gave users the ability to hold rightsholders accountable if they send a DMCA notice in bad faith.
With these provisions, Section 512 creates a carefully crafted system. When properly deployed, it gives service providers protection from liability, copyright owners tools to police infringement, and users the ability to challenge the improper use of those tools.
The Copyright Office’s report speaks of the views of online service providers and rightsholders, while paying only lip service to the millions of Internet users that don’t identify with either group. That may be what led the Office to give short shrift to the problem of DMCA abuse, complaining that there wasn’t enough empirical evidence. In fact, a great deal of evidence was submitted into the record, among them a detailed study by Jennifer Urban, Joe Karaganis, and Brianna Schofield. Coming on the heels of a lengthy Wall Street Journal report describing how people use fake DMCA claims to get Google to take news reports offline, the Office’s dismissive treatment of DMCA abuse is profoundly disappointing.
Second-Guessing the Courts
An overall theme of the report is that courts all over the country have been misinterpreting the DMCA ever since its passage in 1998.
One of the DMCA’s four safe harbors covers “storage at the direction of a user.” The report suggests that appellate courts “expanded” the DMCA when they concluded, one court after another, that services such as transcoding, playback, and automatically identifying related videos, qualify as part of that storage because they are so closely related to it. The report questions another appellate court ruling that peer-to-peer services qualify for protection.
And the report is even more critical of court rulings regarding when a service provider is on notice of infringement, triggering a duty to police that infringement. The report challenges one appellate ruling which requires awareness of facts and circumstances from which a reasonable person would know a specific infringement had occurred. Echoing an argument frequently raised by rightsholders and rejected by courts, the report contends that general knowledge that infringement is happening on a platform should be enough to mandate more active intervention.
What about the subsection of the DMCA that says plainly that service providers do not have a duty to monitor for infringement? The Office concludes that this provision is merely intended to protect user privacy.
The Office also suggests the Ninth Circuit’s decision in Lenz v Universal Music was mistaken. In that case, the appeals court ruled that entities who send takedown notices must consider whether the use they are targeting is a lawful fair use, because failure to do so would necessarily mean they could not have formed a good faith belief that the material was infringing, as the DMCA requires. The Office worries that, if the Ninth Circuit is correct, rightsholders might be held liable for not doing the work even if the material is actually infringing.
This is nonsensical—in real life, no one would sue under Section 512(f) to defend unlawful material, even if the provision had real teeth, because doing so would risk being slapped with massive and unpredictable statutory damages for infringement. And the Office’s worry is overblown. It is not too much to ask a person wielding a censorship tool as powerful as Section 512, which lets a person take others’ speech offline based on nothing more than an allegation, to take the time to figure out if they are wielding that tool appropriately. Given that one Ninth Circuit judge concluded that the Lenz decision actually “eviscerates § 512(f) and leaves it toothless against frivolous takedown notices,” it is hard to take rightsholders’ complaints seriously—but the Office did.
In short, the Office has taken upon itself to second-guess the many judges actually tasked with interpreting the law because it does not like their conclusions. Rather than describe the state of the law today and advise Congress as an information resource, it argues for what the law should be per the viewpoint of a discrete special interest. Advocacy for changing the law belongs to the public and their elected officials. It is not the Copyright Office’s job, and it sharply undermines any claim the Report might make to a neutral approach.
Mere Allegations Can Mean Losing Internet Access for Everyone on the Account
In order to take advantage of the safe harbor included in Section 512 of the DMCA, companies have to have a “repeat infringer” policy. It’s fairly flexible, since different companies have different uses, but the basic idea is that a company must terminate the account of a user who has repeatedly infringed. Perhaps the most famous iteration of this requirement is YouTube’s “Three Strikes” policy: if you get three copyright strikes in 90 days on YouTube, your whole account is deleted, all your videos are removed, and you can’t create new channels.
Fear of getting to three strikes has not only made YouTubers very cautious, it has created a landscape where extortion can flourish. One such troll would make bogus copyright claims, and then send messages to users demanding money in exchange for withdrawing the claims. When one user responded with a counter-notification—which is what they are supposed to do to get bogus claims dismissed—the troll allegedly “swatted” the user with the information in the counter-notice.
And that’s just the landscape for YouTube. The Copyright Office’s report suggests that the real problem of repeat infringer policies is that courts aren’t requiring service providers to create and enforce stricter ones, kicking more people off the Internet.
The Office does suggest that a different approach might be needed for students and universities, because students need the Internet for “academic work, career searching and networking, and personal purposes, such as watching television and listening to music,” and students living in campus housing would have no other choice for Internet access if they were kicked off the school’s network.
But all of us, not just students, use the Internet for work, career building, education, communication, and personal purposes. And few of us could go to another provider if an allegation of infringement kicked us off the ISP we have. Most Americans have only one or two high-speed broadband providers with a majority of us stuck with a cable monopoly for high-speed access.
The Internet is vital to people’s everyday lives. To lose access entirely because of an unproven accusation of copyright infringement would be, as the Copyright Office briefly acknowledges, “excessively punitive.”
The Copyright Office to the Rescue?
Having identified a host of problems, the Office concludes by offering to help fix some of them. Its offer to provide educational materials seems appropriate enough, though given the skewed nature of the Report itself, we worry that those materials will be far from neutral.
Far more worrisome, however, is the offer to help manufacture an industry consensus on standard technical measures (STMs) to police copyright infringement. According to Section 512, service providers must accommodate STMs in order to receive the safe harbor protections. To qualify as an STM, a measure must (1) have been developed pursuant to a broad consensus in an “open, fair, voluntary, multi-industry standards process”; (2) be available on reasonable and nondiscriminatory terms; and (3) cannot impose substantial costs on service providers. Nothing has ever met all three requirements, not least because no “open, fair, voluntary, multi-industry standards process” exists.
The Office would apparently like to change that, and has even asked Congress for regulatory authority to help make it happen. Trouble is, any such process is far too likely to result in the adoption of filtering mandates. And filtering has many, many, \issues, such that the Office itself says filtering mandates should not be adopted, at least not now.
The Good News
Which brings us to the good news. The Copyright Office stopped short of recommending that Congress require all online services to filter for infringing content—a dangerous and drastic step they describe with the bland-sounding term “notice and staydown”—or require a system of website blocking. The Office wisely noted that these proposals could have a truly awful impact on freedom of speech. It also noted that filtering mandates could raise barriers to competition for new online services, and entrench today’s tech giants in their outsized control over online speech—an outcome that harms both creators and users. And the Office also recognized the limits of its expertise, noting that filtering and site-blocking mandates would require “an extensive evaluation of . . . the non-copyright implications of these proposals, such as economic, antitrust, [and] speech. . . .”
The Can of Worms Is Open
Looking ahead, the most dangerous thing about the Report may be that some Senators are treating its recommendations for “clarification” as an invitation to rewrite Section 512, inviting the exact legal uncertainty the law was intended to eliminate. Senators Thom Tillis and Patrick Leahy have asked the Office to provide detailed recommendations for how to rewrite the statute – including asking what it would do if it were starting from scratch.
Based on the report, we suspect the answer won’t include strong protections for user rights.