Copyright Office Recognizes Section 512’s Impact on Users

One of the main criticisms of the Copyright Office (“the Office”)’s report on Section 512 of Title 17 is that it focused upon the impact of Section 512 on rightsholders and online service providers (“OSPs”), and largely ignored Section 512’s impact on users. The Copyright Office redressed this oversight in a June 29, 2020 letter the Office wrote in response to follow-up questions submitted by Senate Judiciary IP Subcommittee Chairman Thom Tillis and Senator Pat Leahy. 

The Office’s increased concern with users was most evident in its response to the Senators’ first question requesting the Office to prioritize its recommendations. The report gave little weight to the issue of abuse of the notice-and-takedown system. It called for a more effective means of dealing with abusive notices only in a footnote. Conversely, the June 29 letter identified abusive notices as one of the priority areas for Congressional attention: “The issue of abusive allegations of copyright infringement is serious, and congressional attention to the broader question of how to best discourage such uses of the copyright system could provide more effective mechanisms to address the problem.”

The concern with users was also reflected in the Office’s call for flexibility for determining when a subscriber’s account should be terminated because of infringing conduct. The Office noted that “the negative consequences that are likely to result from termination of a user’s internet service if there is only one local broadband provider is likely to be greater than the negative consequences that flow from having an account terminated on a social media site for which there are other ready substitutions.” Likewise, “termination of internet service is likely to have greater negative externalities for the user’s family and other household members than termination of a social media account.”

The Office’s response to the Senators’ question concerning what approach would the “Office recommend if Congress were to start from scratch” demonstrated a sensitivity to the impact of different policy choices on users. The Office wisely observed that “the end result of starting from scratch now would necessarily depend on the policy choices the Congress made in shaping the new system.” In addition to the underlying aims of copyright, the choices would involve other considerations, such as competition and consumer protection. With respect to copyright-related policy choices, Congress would have to identify the interests it sought to promote or balance under a new system. “Should primacy be given to the effective protection of the intellectual property interests of rightsholders of all sizes and sectors? Or to maximizing the diversity of, and innovation within, the internet ecosystem? Or, instead, to maximize the ability of individual citizens to speak to a broad audience and disseminate that speech?”

The Office then discussed the tradeoffs inherent in these policy choices. Thus, “prioritization of the diversity of the internet ecosystem…would argue in favor of looser qualification criteria so as to not threaten the viability of innovations that Congress may want to encourage.” Meanwhile, “prioritization of speech interests would likely argue for greater transparency within the system and against an unmediated, private, extra-judicial system.”

Turning to alternatives in the allocation of the burden of identifying and addressing online infringement, the Office recognized that placing an obligation on OSPs to more actively police their platforms could affect “user privacy interests.”

The Office then listed nine criteria any changes to the existing system, or a new system, should meet; four of these criteria considered user interests: 

• When stating that there should be legal certainty and room for innovation by OSPs that are acting in good faith, the Office noted that “the benefit of diverse platforms for the creation and dissemination of speech extends to many parties beyond the OSPs themselves.”   
• “There should be mechanisms for protecting users’ valid speech interests and to address mistaken or bad-faith takedown notices.”
• The discussion of criterion that “there should be built-in deterrents for misuse of the system by all parties” further addressed fraudulent takedown notices. Additionally, the Office remarked that light sanctions should apply to “a user’s ineffective attempt to make fair use of content.”
• The benefit of the system should not place undue burdens on smaller players such as “individual users.”

In response to the Senators’ question for the Office’s views concerning notice-and-staydown, the Office identified many concerns from a user perspective. For example, a filter might prevent future uploads that “differ in significant respects from the subject of the takedown notice,” such as a sample of a song being used as background music for different content. Or the filter could prevent incorporating a song into a political ad. The Office asked, “how do you comply with staydown request requirements while also protecting legitimate speech?” 

The Senators’ final question was if Congress were redesigning Section 512 today, should the interests being balanced be the same as those in 1998. The Office responded that overall, the interests among stakeholders have not changed significantly. Accordingly, “users continue to value the availability of new ways to access content and engage in speech of their own.” The Office did acknowledge a significant difference from 22 years ago: “account termination for the user of a Section 512(a) service would likely have a greater impact on the user’s ability to participate as a full citizen in the public discourse of the country today than it would have in 1998.” The Office explained that “government information and mechanisms to request government services have increasingly migrated online, and thus loss of internet access would impose significant hardship on not just on the user, but on the entire household.” For this reason, the Office suggested that “consideration of other possible deterrents to repeat infringement by users of a Section 512(a) service may better balance the interests of rightsholders and users.”

The June 29 letter reiterates many of the flawed findings of the report, such as that the “particular balance between the needs of online service providers [] and those of creators and rightsholders” struck by Congress in Section 512 in 1998 “has shifted in ways Congress likely did not anticipate.” Nonetheless, the June 29 letter commendably stressed the impact of Section 512, and its possible amendment, on users.