Back in 1998 – before user-generated, content-based platforms like YouTube rose to prominence and the internet grew to become the dominant force in commerce and culture – Congress enacted the Digital Millennium Copyright Act (“DMCA”) to help address copyright infringement concerns online.  Recognizing the need for rules governing how to deal with the unauthorized posting of copyrightable content, Section 512 of the DMCA established a copyright notice-and-takedown system whereby copyright owners who discover their content posted to a website without their permission can file a request to remove content from the site.  As long as the website hosting the content (an “online service provider” or “OSP”) removes unauthorized content from its site under certain rules, the OSP enjoys “safe harbor” liability protection to shield it from an infringement claim.  In exchange, copyright owners receive an efficient way to remove infringing online copies of their work. 

After more than twenty years, the DMCA remains a key enforcement tool for copyright owners, and OSPs enjoy the DMCA’s safe harbor provisions to shield them from a constant threat of lawsuits for content appearing on their sites.  Acknowledging the important role Section 512 plays in copyright law, the U.S. Copyright Office undertook a multi-year study to review whether section 512 effectively balances the needs of OSPs with the needs of copyright owners. The study resulted in a May 21, 2020 Section 512 Report.  Based on several rounds of comments from OSPs, copyright owners, and other stakeholders, the Copyright Office concluded that Congress’s intended balance of interests tilts in favor of OSPs.     

The Copyright Office does not recommend a major overhaul of Section 512, but it does ask Congress to consider several clarifications to the law, among other recommendations.  The highlights include:

• OSPs should clarify what it means to be a repeat infringer.

Section 512 empowers OSPs to terminate the user accounts of “repeat infringers” under “appropriate circumstances,” but there is no consensus for whether a repeat infringer means a repeat alleged infringer or a repeat offender as decided by a court; similarly, whether “appropriate circumstances” can include situations that do not arise from a takedown notice from a copyright owner.  The Report recommends that OSPs publish clear, written guidelines to better define “repeat infringer” and “appropriate circumstances,” and Congress should consider clarifying what these statutory terms mean.   

• Congress should revisit the knowledge requirement standards OSPs must meet to be eligible for Section 512 safe harbor protection.

Section 512 includes many knowledge standards OSPs must meet to qualify for safe harbor protection, and the Report notes that the way courts have interpreted those knowledge requirements might not match what Congress intended.  OSPs must lack actual knowledge of a specific infringement, and they also must lack “red flag” knowledge, meaning OSPs were not aware of facts that would have made the specific infringement obvious to a reasonable person.  OSPs lose their safe harbor protection if they deliberately blind themselves to knowledge of infringing activity (the willful blindness standard).  OSPs also lose their protection if they receive a financial benefit directly attributable to infringing activity and have a right and ability to control users’ infringing posts (the vicarious liability standard). 

The Copyright Office believes Congress should clarify the distinction between actual and red flag knowledge, revisit whether willful blindness means deliberately avoiding specific incidences of infringement or simply avoiding evidence that would indicate that infringement occurs on the site.  The Copyright Office also recommends that Congress revisit whether it agrees with federal courts that an OSP only should be held vicariously liable for its users’ infringement if the OSP plays an active role in selecting, monitoring, or marketing user content. 

• Congress should revisit the level of specificity copyright owners must show when identifying where allegedly infringing works are located.

As noted by the Copyright Office, Section 512 includes ambiguous language pertaining to the rules a copyright owner must follow when submitting takedown requests.  Under the statute, copyright owners must identify the work allegedly infringed or a representative list of works on a site if those works are included in a single takedown notice.  However, when only a representative list of infringing works is provided, the copyright owner must also include enough information to help the OSP locate the infringing material.  The Report asks Congress to clarify and consider whether takedown notices should have to include an URL for each instance of allegedly infringing material regardless of the number of infringements. 

• Congress should empower the Copyright Office to set rules for takedown notices.

The Report notes that many OSPs have adopted takedown processes not directly in step with Section 512’s notice and takedown requirements.  Congress intended the process to involve a passive intake of a notice of alleged infringement and the automatic removal of content resulting from that notice, but the Report notes that many OSPs now impose requirements that go beyond what is in the statute, such as requiring proof of copyright registration or other forms of ownership.  The Copyright Office asks Congress to shift the required minimum notice standards for takedowns to a regulatory process the Copyright Office can oversee and modify as may be necessary.

• The Copyright Office plans to launch a public information campaign to educate the public on these important issues.

The Copyright Office plans to launch a website located at www.copyright.gov/DMCA where it will publish educational materials about the Section 512 system so online users, copyright owners, and OSPs better understand their respective rights and responsibilities.

The Section 512 Report is an important step forward, and hopefully Congress will provide needed clarity and modifications to better balance the online needs of stakeholders. 

BY Adam W. Sikich, Esq.