A 21st Century Update to Digital Copyright Law

For years, the U.S. Copyright Office has grappled with how to update federal copyright law for the 21st Century. A recent report from the Copyright Office on Section 512 of the Digital Millennium Copyright Act (DMCA)—a law that grants “safe harbor” to online service providers (OSPs) for potentially infringing content generated by users, such as a fan’s YouTube video that features copyrighted music—is the culmination of a years-long study into the state of the DMCA and how to improve it. Section 512 is the product of the U.S. Congress’s attempt to balance two competing interests. On one hand, Congress designed the legislation to provide OSPs room to grow while avoiding a potential onslaught of copyright lawsuits. At the same time, Congress sought to give content creators and rights holders a tangible solution to combat online copyright infringement. As a means of enforcing this balance, Section 512 includes a “notice-and-takedown” provision, which requires OSPs seeking the safe harbor liability protection to remove infringing material upon written notice from rights holders. After the DMCA passed, this mechanism became “a useful tool that enabled parties to reach quick resolution of copyright disputes while avoiding costly litigation,” according to copyright attorney Janet Fries. As the internet has grown, however, there has been widespread disagreement over whether Section 512 still achieves Congress’s intended balance. Reflecting this divide, the Copyright Office’s research for its recent report on Section 512 yielded “dramatically varied opinions” on the legislation’s effectiveness. OSPs generally view Section 512 as a success that has allowed them to “grow exponentially and serve the public without facing debilitating lawsuits.” Rights holders, however, argue that courts have interpreted the Section 512 safe harbor protections too broadly, while leaving individual creators to address the “whack-a-mole” problem of reporting reappearing infringing content. As stated in its report, the Copyright Office now concludes that Section 512 is out of balance with Congress’s initial intent. This week’s Saturday Seminar focuses on the debate surrounding Section 512 of the DMCA and how this law could be strengthened for the 21st century