If you own or share creative content online (or have clients that do either), you will want to pay attention to the Copyright Office because changes may be afoot for the Digital Millennium Copyright Act (DMCA). The United States Copyright Office is currently undertaking a public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code.

Section 512 provides a framework for a copyright owner to request that a service provider take down allegedly infringing material. A proper request requires that the copyright owner provide detailed and specific information – e.g., identification of the copyrighted work, identification of the infringing work, and a statement, sworn under penalty of perjury, that the provided information is accurate. Service providers that respond expeditiously to remove or disable access to the allegedly infringing material are shielded from liability for copyright infringement – a so-called “safe harbor.”

Section 512 was enacted in 1998 at a time when the Internet was relegated to and visited by a small cross-section of society. Congress intended for the provision to provide a strong incentive for service providers and copyright owners to work together to identify and confront copyright infringement. There also was a desire that the framework would provide greater clarity regarding service provider infringement exposure.

In the almost 20 intervening years, the Internet has changed: specifically, the volume of infringing material accessed via the Internet has exploded.  It has been estimated that nearly one-quarter of all Internet bandwidth in North America, Europe, and Asia is devoted to hosting, sharing, and acquiring infringing material.[1] The safe harbor provided by section 512 is relevant now more than ever. Unfortunately, service providers and copyright owners are strongly divided as to how to adapt section 512 to account for this explosion in infringing activity.

From the copyright owner’s perspective, infringement is nearly inevitable and policing is a daunting and never-ending task. Although there are a number of technological advances – such as Google Content ID which monitors and flags YouTube postings for potentially infringing activities – smaller owners are unlikely to access to such sophisticated tools. Oftentimes, smaller owners are reliant on time intensive manual searches followed by repeated Section 512 take down notices in order to protect their works. Unfortunately, copyright owners are increasingly finding that that even once the infringing material is removed removed, it is re-posted on yet a different site. Essentially, copyright holders are forced to play a never ending game of “whack-a-mole.”

On the flip side, from the service provider’s perspective, managing Section 512 take down notices are expensive and necessitate a sophisticated tracking and monitoring system. Service providers report receiving hundreds of millions of DMCA take down requests each year and devote an ever increasing amount of time and resources to respond to each.

Recent debate has become boisterous with copyright owners urging that DMCA takedown provisions should include some mechanism that keeps the copyright material off of the Internet – appropriately called “stay down” notices. Copyright owners argue that once a takedown request is sent to a service provider, all files with that ID should be removed and future reposting should be blocked.

It is believed that such an enforcement scheme would be more manageable and, more importantly, eliminate the “whack-a-mole” game. Service providers, on the other hand, argue that major content platforms like YouTube and Facebook would receive an unfair advantage since they have much more sophisticated technology and larger teams to shoulder such a burden. Some service providers also argue that this would chill free speech by requiring all user generated content undergo a filtering process prior to being posted.

One thing is for sure, copyright law always chases technology. Whether you are an individual who wants to upload a music video of your toddler to Facebook, a filmmaker, or a website admin managing a site filled with user-generated content, we will all be affected by the outcome of whatever decision is made. No matter which side you are on, I would urge you to submit your thoughts to the Copyright Office. For a specific list of the questions for which input is requested, visit the Copyright Office website at http://copyright.gov/fedreg/2015/80fr81862.pdf.

Just remember, don’t upload any copyrighted material as part of your response unless you hold all of the rights!

[1] 80 Fed. Reg. 81862 (citing David Price, Sizing the Piracy Universe 3 (2013), http://www.netnames.com/digital-piracy-sizing-piracy-universe (infringing bandwidth use increased by 159 percent between 2010 and 2012 in North America, Europe, and [the] Asia-Pacific, which account for more than 95 percent of global bandwidth use)).

This post was written by Emily E. Campbell, a shareholder at Dunlap Codding in Oklahoma. She provides strategic counsel to clients on trademarks, copyrights, Internet law and licensing.

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