First, the Office recommends that Congress clarify the distinction between “actual knowledge” and “red flag knowledge.” Court decisions interpreting the red flag knowledge provision have often required a level of specificity regarding the types of information from which infringing activity is present as to blur the line between actual and red flag knowledge and conflate the existence of either knowledge type with receipt of a takedown notice from a rightsholder.
The Office questions whether this standard – which creates a high bar for red flag knowledge, effectively removing it from the statute in some cases and creating an extremely narrow path to demonstrate it in others—fully comports with congressional intent.
Relatedly, the Office notes that the knowledge requirements could benefit from additional statutory language that could incorporate a reasonableness standard to explicitly take into account differences among OSPs in terms of the sophistication of their operations and their technological capability to respond to red flag knowledge.
Second, the Office recommends that Congress clarify its intent regarding the content requirements for a valid takedown notice, specifically the provisions concerning the submission of a representative list of infringed works and adequate identification of the location of infringing material.
In practice, the line between identifying an infringed work and the material that infringes it can be blurry, and it is unclear how a rightsholder can specify every URL at which infringing material is located (as many courts have interpreted “information reasonably sufficient to permit the service provider to locate the infringing material”), while providing a representative, rather than full, list of copyright-protected works.
For this reason, Congress may want to consider providing additional statutory clarity regarding what properly constitutes a representative list and what types of location information is sufficient under section 512(c)(3)(A)(iii).
Specifically, 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.
Third, the current functioning of section 512 may be improved by providing the Office with increased regulatory authority to set standards related to the manner in which compliant notifications may be submitted to designated DMCA agents.
Congress could grant the Office additional authority to specify criteria related to the location, prominence, and content of the required public identification and contact information of an OSP’s designated DMCA agent on its website, to ensure that the public can easily locate this information.
The other area for which it may be beneficial to grant the Office additional regulatory authority is acceptable formatting and content of the notice submission systems that some OSPs have implemented. There is an opportunity for Congress to create a more standardized system that imposes fewer hurdles for small rightsholders by requiring any notice submission system to meet certain minimum regulatory standards.
The Office recommends that Congress consider not only reforms to section 512(f), but also broader solutions outside of section 512 to address abuse practices generally, including the filing of abusive complaints in court or the sending of abusive cease and desist letters.
The issue of abusive allegations of copyright infringement is serious, and congressional attention to the broader question of how to best discourage such uses of the copyright system could provide more effective mechanisms to address the problem.
Congress may wish to consider a more flexible approach that allows users to seek a faster evaluation of their counter-notice, or rightsholders to seek an extension of the deadline for restoring the content. While it is possible to do both in federal court, the Office has noted on multiple occasions that federal litigation is expensive, complex, and often slow.