The Report is the first full analysis of whether section 512 is working effectively in achieving its aim of balancing the needs of online service providers (“OSPs”) with those of creators.
In enacting section 512, Congress sought to create a balance between two goals. One is providing important legal certainty for OSPs, so that the internet ecosystem can flourish without the threat of the potentially devastating economic impact of liability for copyright infringement as a result of their users’ activity. The other is protecting the legitimate interests of authors and other rightsholders against the threat of rampant, low-barrier online infringement.
Congress balanced these interests through a system where OSPs can enjoy limitations on copyright liability – known as “safe harbors” – in exchange for meeting certain conditions, while giving rightsholders an expeditious and extra-judicial method for addressing infringement of their works. Thus, for some types of OSPs, their safe harbors are conditioned on taking down infringing content expeditiously upon notification by a rightsholder.
Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the “whack-a-mole” problem of infringing content reappearing after being taken down.
Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew. The Copyright Office makes the following conclusions and recommendations, in twelve areas:
Eligible Types of OSPs
The Office notes, that the current contours of the section 512(c) safe harbor are in tension with the original balance Congress sought to achieve. Specifically, the section 512(c) safe harbor shields an OSP from liability for monetary relief “for infringement of copyright by reason of the storage at the direction of a user of material that resides on a system or network controlled or operated by or for the service provider.”
As currently interpreted, “by reason of the storage” has been expanded to cover many activities “related to” hosting in a manner that Congress did not likely anticipate. Other eligibility questions have arisen that Congress may want to clarify, including the amount of time that qualifies as “temporary” for the section 512(b) safe harbor, and whether technology services beyond providing internet infrastructure – such and peer-to-peer (“P2P”) systems and payment processors – should appropriately be included under section 512(a).
Repeat Infringer Policies
While there is significant disagreement among stakeholders regarding the meaning of “repeat infringer,” the Fourth Circuit has held that a “repeat infringer” under section 512 means repeat alleged infringer, not repeat adjudicated infringer.
As currently interpreted, OSPs may be found in compliance if they adopt and reasonably implement an unwritten policy, the specifics of which are never shared with the OSP’s users. In the Office’s view, such unwritten and uncommunicated policies are unlikely to have the deterrent effect on infringing conduct that Congress initially intended.
Knowledge Requirements for OSPs
First is the question of “actual knowledge” vs. “red flag knowledge”. The statute requires that, in order to qualify for the section 512(c) or (d) safe harbors, an OSP must both lack actual knowledge that material or activity on its service is infringing, and “not be aware of facts or circumstances from which infringing activity is apparent,” which is known as red flag knowledge.
The Office believes that this question, in particular, could benefit from Congressional attention to reiterate or clarify the distinction between actual and red flag knowledge. Relatedly, the Office notes that courts have struggled to articulate the appropriate relationship between section 512(m)’s intent to avoid the imposition of a duty to monitor on OSPs, with section 512(c) and (d)’s knowledge requirements.
The second is the application of the “willful blindness standard.” This is a common law doctrine that asks whether an OSP deliberately blinded itself to knowledge of infringing activity by its users. If an OSP is found to have engaged in willful blindness, it will be charged with the equivalent of actual knowledge and lose its safe harbor.
The Copyright Office notes that courts have adopted a standard for willful blindness that is modified from the traditional common law standard and requires that the willful blindness involve deliberate avoidance of specific incidences of infringement, rather than avoidance of acts of infringement generally.
The third knowledge requirement issue concerns the common law vicarious liability standard, which was imported into the DMCA through section 512(c)(1)(B)’s provision. Currently, courts require a showing of “something more than the ability to remove or block access to infringing materials.”
Representative List and Identification of Location
In sending a compliant takedown notice, a rightsholder must identify the work allegedly infringed, “or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.” The rightsholder must also include “information reasonably sufficient to permit the service provider to locate” the infringing material.
This statutory language is ambiguous, with the result that it is often difficult for courts to ascribe separate meaning to these two requirements. The Office concludes that Congress may wish to consider whether the “information reasonably sufficient … to locate” provision is appropriately interpreted as requiring that a rightsholder must submit a unique, file-specific URL for every instance of infringing material on an OSP’s service.
Knowing Misrepresentation and Abusive Notices or Counter-Notices
Senders of both takedown notices and counter-notices are liable for damages if they make knowing material misrepresentations regarding whether the material to be taken down is infringing, or has been removed or disabled by mistake or misidentification. Courts have appropriately interpreted this provision by requiring actual knowledge or willful blindness of falsity, not merely negligent or unreasonable misrepresentation.
Knowing Misrepresentation and Fair Use
The Copyright Office questions the test for knowing misrepresentation under section 512(f) adopted by the Lenz court, which had the effect of imputing the good faith requirement in section 512(c)(3) for notice sending into the analysis of section 512(f)’s knowing misrepresentation requirement.
Such an analysis could result in placing potential liability on rightsholders who fail to undertake a fair use inquiry before sending a takedown notes, without regard to whether or not the material is actually infringing.
Standard & Non-standard Notice Requirements
Based on the information obtained during the course of the Study, the Copyright Office notes that the mechanisms for submission of takedown notices, adopted in recent years by many of the larger OSPs, are no longer in sync with the notice requirements set forth in section 512(c).
The proliferation of new web-based submission forms and OSP-imposed requirements for substantiation of takedown notices in order to ensure the efficiency of the process has had the effect of increasing the time and effort that smaller rightsholders must expend to send takedown notices. At the same time, some of the current notification standards set forth in section 512(c) could be on their way to becoming obsolete.
Time Frames Under Section 512
The statutory requirement that OSPs “expeditiously” remove or disable access to infringing material upon becoming aware of it has been interpreted by the courts using a flexible approach that takes into consideration the varying circumstances of each case.
The Office notes that the current statutory timeframes to resume providing access to content following receipt of a counter-notice currently ill serves both users and rightsholders given current business models and the realities of federal litigation. Ten to fourteen days is both too long for legitimate speech to be blocked, and too short for a rightsholder to realistically prepare and file a federal lawsuit to prevent the return of infringing materials.