Requirements that pose a relatively minimal burden for large, established OSPs could be crippling for a small startup that lacks access to enterprise-level technology. Larger rightsholders with in-house enforcement teams may have more resources to monitor online infringement than small rightsholders that must face a choice between devoting their time to creative endeavors or to enforcing their rights.
And individual users whose use of online platforms is primarily passive may not experience the same impact from an improper takedown notice as users who utilize such platforms to make a living. With this in mind, there are few areas of section 512 that would benefit from approaches that can be better tailored to the needs and concerns of different size stakeholders.
The Office has identified three areas which would benefit from flexibility that takes into account for the need for solutions that are not one-size-fits-all: (i) flexibility with regards to the adoption and reasonable implementation of repeat infringer policies; (ii) certain aspects of the notice-and-takedown process itself; and (iii) the timeframes during which content remains down following receipt of a counter-notice.
Flexibility in Adoption and Reasonable Implementation of Repeat Infringer Policies.
For an OSP to avail itself of a section 512 safe harbor, it must adopt and reasonably implement a repeat infringer policy. It may be appropriate to consider the nature of the infringement when evaluating whether an OSP has reasonably implemented its repeat infringer policy in a given case.
By way of example, file sharing of full-length content can be expected to create a different level of economic harm for rightsholders than the use of a part of a song in the background of a homemade video, and is more likely to be an intentional act of infringement.
While there should be certain minimum standards addressing repeated acts of infringement, an evaluation of the reasonableness of those standards may vary depending upon individual factors in the case, including the OSP’s size and resources, the nature of the service, and the nature of the infringement itself.
Another aspect for which it would be important to provide flexibility for different types of OSPs is defining the circumstances under which termination of a user’s account is appropriate.
The Office does not believe that it would be workable or appropriate to adopt a universal standard for “appropriate circumstances” that should result in the termination of a repeat infringer’s account. Rather, it may be appropriate for Congress to first consider an OSP’s nature and the potential ramifications of account termination.
For example, the negative consequences that are likely to result from termination of a user’s internet service if there is only one local broadband provider is likely to be greater than the negative consequences that flow from having an account terminated on a social media site for which there are other ready substitutions.
Congress may want to consider the adoption of penalties short of account termination, such as limiting bandwidth or slowing service speed, to address repeat infringers for certain users of section 512(a) services.
Additionally, it may be advisable to provide additional flexibility in the statute to aid in determining what constitutes “reasonable grounds” for account termination with respect to 512(b) services providers (i.e., caching service providers), especially those that cache as part of content delivery network services.
While account termination after only a handful of infringement notices may be appropriate for file sharing networks or other websites aimed at facilitating infringement, the threshold should likely be higher for termination of the account of a good-faith OSP that occasionally has users upload infringing content but otherwise complies with the requirements of section 512.
OSPs’ concern regarding bad-faith notice senders could potentially be addressed by implementing some mechanism for identifying and tracking bad-faith notice or counter-notice senders, with tailored punishments to discourage further engagement in these activities.
Even the most advanced filtering systems result in a non-negligible number of false positives and cannot identify whether content is protected by fair use. User advocacy groups have raised concerns that such inaccuracies may impact important free speech concerns.