After 22 Years, Is a DMCA Update Necessary? The Copyright Office Issues a Report

After several years of studying data compiled from the public on the DMCA section 512 safe harbor provisions, the Copyright Office found that Online Service Providers (OSPs) and rights holders disagree on whether the notice and takedown system is working in a balanced manner for all.  As such, the Copyright Office issued a report suggesting a DMCA update for the Act to better fit with modern times and technology.

A DMCA Update Could Lean in Favor of Rights Holders

The Copyright Office found that rights holders do not see eye-to-eye with the companies relying on DMCA safe harbor provisions to avoid liability for copyright infringement caused by third party’s using their platforms. In considering a DMCA update to the section 512 provision of the Act, the Copyright Office considered the difference in how OSPs and rights holders view the provision as “working” to combat infringement.  

In talking with OSPs, the Copyright Office found that in great proportion, most feel that the section 512 provisions are working well and are providing a good and effective manner of dealing with infringement complaints as well as shielding them from liability from third party acts.  However, the feedback from rights holders included the disclosure of issues, concerns, and the feeling they are not being protected enough. Therefore, the Copyright Office report explains how a DMCA update could provide a better balancing effect as Congress originally intended in implementing the Act. 

Rights Holders’ Issues With the DMCA Notice and Takedown Process 

The Copyright Office report indicates that instances of online copyright infringement has grown exponentially and rights holders feel that the safe harbor provisions of the DMCA help incentivize growth of businesses that tend to profit from the dissemination of infringing content and behavior.  Additionally, rights holders complained that the time and cost to report all instances of infringement is great.  Critics for a DMCA update argue that the specific requirements necessary for giving proper notice for every instance of infringement is too burdensome for rights holders, especially when it can become a whack-a-mole issue with a republishing of the infringing content under another URL after one instance is taken down.  

The Copyright Office report indicates that there is also concern that OSPs with licensed content get an unfair advantage in competing with OSPs that rely on safe harbor provisions without paying licensing fees and the ability to operate large scale sites for less cost to consumers, using the notice and takedown process to avoid liability from infringement throughout their sites.

Based on the Copyright Office’s findings, it is recommending a DMCA update to help bring the provisions in line with how online technology currently works and to help find a better balance between requirements by rights holders and OSPs in providing proper notice and taking swift action to remedy copyright infringement.

Key Takeaways on a Proposed DMCA Update and Issues to Consider in the Current Takedown Process

As Internet companies work to protect themselves from liability for consumer’s infringing postings on their sites and find ways of facilitating a DMCA safe harbor, the Copyright Office determined a DMCA update could help with addressing the following concerns identified in the notice and takedown process:

• Rights holders’ concerns the forms, requirements, and notice process are time consuming and vary among platforms

• The “knowing misrepresentation” requirement and whether it deters abusive notices and counter notices, as well as what qualifies as “fair use”

• Some ISPs impose additional requirements not specifically listed in the DMCA

• The rights holders’ and the ISPs views on timeframes in the process and what constitutes “expeditiously” 

Download the Copyright Office Report.

For more insights on copyright protection, see our Software & Copyrights Overview, and Technology Industry Legal Solutions pages.

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