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Music Community’s joint supplemental comments on implementation of safe harbour provisions in USA

Many service providers readily claim in their comments that the DMCA safe harbors, as interpreted by the courts and certain advocates, give service providers blanket immunity from damages liability for copyright infringement as long as they respond to takedown notices and terminate users they deem to be repeat infringers.

So interpreted, the DMCA safe harbors provide copyright owners with no meaningful protection from massive online piracy, contrary to the balance Congress intended to strike. Instead, the safe harbors, as interpreted, create a heavily skewed playing field where service providers can either comply with their minimal safe harbor obligations and thereby obtain immunity from damages liability, or use the safe harbors as a cudgel in licensing negotiations with copyright holders to extract rates far below fair market value. Whichever path service providers choose, copyright holders and creators are clearly disadvantaged because they do not receive a fair share of the value their works generate.

As misinterpreted by several service providers and some courts, the safe harbors place all of the burden on copyright owners to police the infringement of their works across the Internet on a link-by-link or file-by-file basis and offer them little more than a frustrating, burdensome and ultimately ineffective takedown process. Service providers, including large technology companies, can and should do more to correct this imbalance by working with copyright owners and creators to identify and prevent the infringement of copyrighted works.

The inclusion of obligations, similar to those provided in proposed draft copyright law in EU, on service providers in the DMCA safe harbors could prove important in allowing copyright owners and creators to more effectively protect the use of their content online while also creating a more balanced playing field for licensing negotiations between copyright owners and service providers.

Given the controversy over how “red flag” knowledge should be interpreted, one possible solution would be to clarify legislatively, as suggested by some commentators, that “red flag” knowledge applies to whole categories of infringement and more generalized infringing activity, and not only to specific instances of infringement.

Congress could clarify that the DMCA safe harbors should incorporate, and be interpreted consistently with, the common law standard for vicarious liability along the lines of the Fonovisa standard.20 Alternatively, the Copyright Office could provide guidance that the vicarious liability prong of Sections 512(c) and (d) should be interpreted consistently with the Fonovisa standard.

The notice and takedown process suffers from several flaws that need to be remedied. First, the undefined statutory term “expeditiously” leaves service providers far too much discretion to decide how quickly they will comply with a takedown notice. If service providers can post content nearly instantaneously, they can remove it just as quickly and should have no excuse for waiting hours or days to comply. Even a very short window of infringement can be incredibly damaging for pre-release or newly-released material.

Second, one possible solution would be to amend Section 512 to provide further guidance as to the meaning and proper application of the “representative list” language. Specifically, the amendment could make clear that if multiple copyrighted works are being infringed at a single online site, the copyright owner can submit a representative list of the copyrighted works infringed, together with a representative list of the infringements of those works, which would then obligate the service provider to identify and remove or disable access to all infringements of the copyright owner’s works on that site.

Third, one more possible solution would be to require that, once a service provider receives a takedown notice with respect to a given work, the service provider use automated content identification technology to prevent the same work from being uploaded in the future. Another option would be to require the use of such technology to identify and take action with respect to known third party copyrighted works at the time of upload or sharing.

In the context of search engines and the Section 512(d) safe harbor, the whack-a-mole problem takes a different form: links to infringing content are removed in response to a takedown notice, but then other links to infringements of the same work reappear in search results on the same service. In addition, Google’s search algorithm and search-term suggestion often promotes popular, infringing sites over authorized, legitimate sites for neutral searches for mp3s or downloads of music.

One possible solution would be to require search engines to de-index structurally infringing sites that are the subject of a large number of takedown notices. Another possible solution would be to require search engines to demote the ranking of such sites in search results, even where such sites engage in domain hopping. A third possible solution would be for search engines to either promote authorized sites over infringing sites and/or to proactively take into account authenticity over popularity in search rankings.

Congress could clarify that content owners are not required to evaluate fair use before sending a takedown notice, that automated notice-and-takedown processes without human review are appropriate, and that, consistent with the Supreme Court’s description, fair use should be treated as an affirmative defense and considered by the copyright owner in connection with a valid counter-notice raising such a defense.

Requiring copyright owners to file suit in order to dispute each invalid counter-notice is an unrealistic solution given the proliferation of copyrighted works on the countless platforms hosted by service providers and the sheer volume of illegitimate counter-notices. One solution to problems with the counter-notice provision may be to allow disputing parties to participate in mediation or other alternative dispute resolution. Another possible way to alleviate problems with the counter-notice provision would be to lengthen the time that copyright owners have to address clearly erroneous or invalid counter-notices. A further possible solution would be to impose a duty of care on service providers to deal with clearly erroneous or invalid counter-notices.

The statute does not define the term “repeat infringer,” or provide any guidance regarding what it means to “reasonably implement … a policy for the termination in appropriate circumstances of … repeat infringers.” One possible solution to address the problems with the repeat infringer provision would be to amend the statute to define the term “repeat infringer” to mean a user who has uploaded or posted links to, or otherwise uploaded, distributed, or downloaded content concerning, some threshold number of infringements of work(s) that have been subject to valid takedown notices, or at a minimum to make clear that “repeat infringer” does not mean only an adjudicated infringer but also includes users who are the subject of repeated, valid takedown notices. The statute could also require service providers to disclose to the public annually the specific terms of their repeat infringer policies as well as details of their implementation and application of their repeat infringer policies.