The US Copyright Office issued a report on Thursday claiming that the safe-harbor provision of the Digital Millennium Copyright Act (DCMA) now favors tech companies over rights-holders. After studying the issue for years and taking into consideration more than 92,000 comments, the Copyright Office suggests that “Congress may wish to fine-tune” the statute.
The report places much of its focus on Section 512 of the DCMA, which sought to balance the competing interest of online service providers and creators. However, due to the technological advances that have been made since the enactment of this section, many question whether the goals Congress sought to achieve have been fulfilled. In order to successful address this question, the Copyright Office surveyed both online service providers and copyright holders.
The Copyright Office concludes that the balance Congress intended when it established the section 512 safe harbor system is askew. The office reviewed more than 92,000 written comments, hosted five roundtables, and analyzed decades of case law. While OSPs, supported in many aspects by user advocacy groups, report satisfaction with the current operation of the safe harbors, that view is not shared by the other intended beneficiaries of the section 512 system, including authors, creators, and rightsholders of all sorts and sizes. There is no doubt that the internet, in all its various component parts, has grown successfully and exponentially over the past two decades. However, despite the advances in legitimate content options and delivery systems, and despite the millions of takedown notices submitted on a daily basis, the scale of online copyright infringement and the lack of effectiveness of section 512 notices to address that situation remain significant problems.
As a result, the Copyright Office made recommendations and conclusions in 12 different areas in order for Congress’ original intent, with regards to section 512, to be carried out. The Copyright Office was optimistic about Congress’ ability to rebuild section 512, but noted that in order for this to occur “additional study, including of potential non-copyright impacts with public input, would be needed.” The Copyright Office is prepared to provide Congress with the resources it needs in order to achieve this goal.