Artists Urging Reforms of the DMCA Safe Harbor: ‘Our Culture Is At Stake’

Last month, T Bone Burnett, a legendary musician, songwriter, and record producer, submitted a five-minute video to the U.S. Copyright Office calling for reforms in the Digital Millennium Copyright Act (DMCA) takedown-and-notice process on behalf of the Content Creators Coalition (C3) members and all music creators.

In the video posted on February 21, Burnett illustrates how the current business models “designed to scrape away value rather than fuel new creation, focused on taking rather than making” are threatening the ability of artists, filmmakers, and music creators to make a living from their art. Criticizing “mega corporations and web moguls living fat off the artistic, cultural and economic value everyone else creates online,” he urged Congress to close the loopholes in section 512 of the DMCA.

Enacted nearly two decades ago, the DMCA sought to balance the interests of content creators, who were struggling to protect their intellectual property in the digital age, and the interests of Internet website owners, who feared being held liable for possible infringing misdeeds of their users.

As a solution, the DMCA adopted a “safe harbor” for online service providers (“OSPs”) including website owners who host user-generated content (such as YouTube where content is posted not by the site owner but instead users of the site). Under the “safe harbor” regime, the OSPs are protected from infringement liability in the underlying disputes between copyright holders and users, provided they fulfill certain requirements.

For example, Internet service providers must implement measures to minimize online copyright infringement. They can include statements regarding intellectual property rights and the consequences of copyright infringement as a part of the website’s terms of use, and provide the contact information for an agent who copyright holders should contact if they believe their copyright has been infringed. Copyright holders can then send “takedown notices” of the perceived infringement. These notices must be based on a good faith belief that the content is in fact infringing, and the Internet service providers get to evaluate the question of fair use in deciding whether to honor that request.

For Internet service providers, section 512 offered relief from copyright law’s strict liability default rule (which holds someone liable for copyright infringement if their actions violate a copyright owner’s rights, even if they had no idea they were doing so) as long as they quickly respond to the takedown notices from copyright owners.

For copyright owners, however, section 512 put the onus on them to patrol the entire Internet for unauthorized copies of their works and notify the service provider through a takedown notice. They often need to repeatedly file takedown notices because the same infringing works continue to reappear elsewhere after the initial takedown in a matter of minutes or seconds, a process referred to as a perpetual game of whack-a-mole.

To end this cycle, copyright owners have suggested a number of potential solutions. One proposed solution is implementing a system known as“Take Down, Stay Down,” which imposes a duty on the Internet service providers to ensure that the infringing content remains down once it has been taken down using automated content identification technology. Another proposed solution is to revise the language of section 512 to require large Internet service providers of user uploaded content to use effective technology to monitor infringing works and review before uploading.

Not surprisingly, Internet service providers have expressed some concerns about the proposal. They rely on the argument that they are mere conduits when a user uploads an infringing work and requiring them to review the work before uploading raises censorship and First Amendment issues. They also argue that not all Internet service providers will be able to bear the full cost of implementing the“Take Down, Stay Down” regime, which could stunt the growth of Internet service providers.

It is clear that the current safe harbor provision is not working well but these are not easy questions to answer. There may be no one-size-fits-all solution. Companies like Google and Facebook could probably afford, if they don’t already possess, the technology to monitor Internet services. Imposing an affirmative duty to small businesses that could not afford the technology may overly burden them. Perhaps the law should impose different levels of requirements for different types of service providers.

The Copyright Office has been reviewing and soliciting comments from the public on the effectiveness of section 512 since the beginning of 2016. The first round of public comments, which ended almost a year ago, resulted in more than 92,000 submissions. The additional comment period ended last month. We should continue to watch how the Copyright Office and Congress tackle these difficult copyright issues as they proceed with their long-promised efforts to reform the safe harbor provisions of the DMCA.

Gina Seo is a J.D. candidate, 2018, at NYU School of Law.