Congress may be deadlocked on a lot of key issues facing the country, but there is one area where it has been working in a diligent, bipartisan manner: reforming section 512 of the Copyright Act, enacted as part of the Digital Millennium Copyright Act in 1998. This important provision of copyright law regulates the liability of internet platforms for copyright infringement by their users. Recognizing that expensive copyright infringement lawsuits against internet platforms could hobble the growth of the fledgling internet economy, Congress included a system of “safe harbors” in section 512 with the intent of balancing the twin goals of limiting liability while protecting copyright owners against piracy on the internet. As long as the platforms took certain actions against infringement and cooperated with copyright owners to protect their works, they would not be held liable for the actions of their users.
Despite Congress’s best intentions, the courts found inconsistencies in the statute and, over the last two decades, in a series of decisions, upset the balance that Congress had sought between the interests of copyright owners and the internet platforms. These decisions minimized the obligations on internet platforms to mitigate copyright infringement, and at the same time imposed increasingly onerous requirements on copyright owners to obtain the cooperation of internet platforms under section 512. Relieved of any meaningful legal obligations to target infringement and police piracy, internet platforms, whose business model is driven by the number of users they attract, have turned a blind eye to piracy. As a consequence, many internet platforms today—from social media sites and search engines to online marketplaces—are replete with piracy, and notorious pirate sites like Libgen and others are easily accessible through Google.
Given section 512’s central role in regulating the obligations of internet platforms to redress infringement, no appreciable gains against piracy can be had without addressing its deficiencies. For many years, the Authors Guild has stood at the forefront along with many other creator groups calling on Congress to fix the problems with section 512 and restore its balance because of the clear and grave harm occurring to the creative industries as a result of rampant online piracy.
This year has been a momentous one for our advocacy with respect to section 512, starting with the Copyright Office releasing its highly anticipated report on section 512 in May after a multi-year study; the Senate Judiciary’s IP Subcommittee following suit with hearings on section 512, in which Authors Guild President Doug Preston testified; and the House Judiciary Committee holding listening sessions in which the Authors Guild took part.
So far, we feel heartened by the lawmakers’ positive responses to our concerns and those of small, individual creators, whose livelihoods depend on the commercial viability of their works. Despite efforts by the internet platform lobby to convince Congress that the law is working as intended and needs no changes, lawmakers have made their concerns known about the imbalance within the current section 512 regime and how that is impacting authors and small creators, whose works are stolen with impunity.
Here we provide an update on recent developments and our involvement in the section 512 reform process.
House Judiciary Committee’s Intellectual Property Subcommittee Holds 512 Hearing
The U.S. House of Representatives Judiciary Committee held a hearing on section 512 last week, titled “Copyright and the Internet in 2020: Reactions to the Copyright Office’s Report on the Efficacy of 17 U.S.C. § 512 After Two Decades.” The Authors Guild was invited to testify at the hearing but we could not attend due to a conflict with our council meeting, although we made sure to apprise the committee of our concerns by submitting a written statementfor the record. In addition, prior to the hearing, Mary Rasenberger participated in a listening session with committee staffers where the staffers asked questions about our recommendations, which broadly focus on holding internet platforms accountable for general awareness of pervasive infringing material on their services, regardless of whether they are notified of the specific locations via a takedown notice from the copyright owner; clarifying that major internet platforms that host a large amount of pirated content have a duty to use filtering or other technologies to detect and remove pirated materials; and creating incentives for internet platforms to adopt commercially available and commonly used technological protections.
You can read our full statement to the House Judiciary Committee here.
Copyright Office Holds Discussion Sessions on Standard Technical Measures
Also last week, on Tuesday, the Copyright Office concluded a series of three discussion sessions on “standard technical measures.” The sessions were convened to provide small creators and individual users an opportunity to share their experiences of using technological means of rights protection, the effectiveness of such measures, and what Congress and the Copyright Office could do to better enable their effective use. When internet platforms use technical measures like fingerprinting and filtering, they are able to greatly reduce piracy; whereas the current notice-and-takedown system, which requires copyright owners to give the internet platform notice of every single infringing post and URL, fails to make a dent in overall piracy because the infringing content that is taken down pops right back up at a slightly different URL, resulting in a frustrating whack-a-mole ordeal for copyright owners. The current system completely relieves the platform from any obligation to prevent reuploads of the pirated content, nor does it encourage preemptive monitoring for infringing content. As such, the Guild is advocating for the adoption of such measures by all internet platforms that are over a certain size and that are used to distribute significant amounts of pirated content. Mary Rasenberger participated in the first session, which took place on September 22, 2020, and covered the legal basis for the use of standard technical measures. (The Copyright Office is expected post recordings from the three discussion sessions on its YouTube page; we will update this blog when the videos become available.)