The U.S. Copyright Office’s Section 512 Report Is “Unbalanced”

After five years of work, the U.S. Copyright Office has issued its lengthy report about how the DMCA safe harbors are working. If you want to read it, you can read it here. The headline takeaway was that, about 20 years later, the safe harbors are “unbalanced” against copyright holders. But I don’t think you should bother because that conclusion isn’t really supported by anything. The report doesn’t tell you anything you didn’t already thought you knew and thus won’t change anyone’s mind about anything.

The Copyright Office did a lot of writing, but also a lot of erasing. Photograph by Pete Lounsbury, Attribution-NonCommercial-ShareAlike 2.0 Generic (CC BY-NC-SA 2.0)

Everyone Hates Section 512

I’ve blogged about these safe harbors many, many times. For a background most germane to this discussion, try my treatment of the Lenz “Let’s Go Crazy” dancing baby case. The main points are: (1) there are four safe harbors that render qualified online service providers immune to copyright liability if they comply with certain requirements; (2) for the most popular of these safe harbors, one of those requirements is taking down content upon receipt of a proper takedown notice (in a procedure known as notice-and-takedown); and (3) there’s a provision, § 512(f), that’s supposed to discourage using the notice and takedown procedure for improper purposes, but it’s largely toothless.

It’s no secret that no one likes the safe harbor provisions of § 512, especially (but not only) the notice-and-takedown provisions. To copyright owners, it’s an exhausting system, often likened to “whack-a-mole,” that has led to wide-spread infringement (and to the prominence of abominations like YouTube). To online service providers, it was an unnecessary bureaucratic burden, but the large ones have learned to live with it. To users, it was a way for complete strangers to interfere with their use of online services, sometimes legitimately, sometimes improperly or absurdly.

99% Fact Free

The Report’s headline conclusion was that § 512 was “tilted askew” or “unbalanced” against copyright owners. The Report’s authors wanted to base their conclusions on facts but admit that they couldn’t get their hands on any meaningful facts. Instead, their conclusion is based, essentially, on subjective feelings of two of the stakeholders. If you look at how I described them just now, you can see how the Report ended up concluding this:

  • Copyright Owners: Section 512 has been a $%&*# horror show.
  • Online Service Providers: Section 512 kind of sucks, but we’re doing OK now.
  • Users: Can anyone hear us?

That’s right, the Report’s main headline grabbing takeaway is based on who complained the most and the loudest to its authors.

To be fair, if and when Congress gets around to thinking about reforming § 512, that’s what the testimony will come down to: who complains the most and loudest. The difference will be that the online service providers will be certain to complain more loudly next time. That being the case, maybe the Copyright Office should’ve skipped the Report, and we all could just gone straight to the Congressional hearings. The Report isn’t adding anything to the debate.

Are Improper Takedown Notices a Problem?

One thing will stay the same, though: the role of users and consumers in the debate. Which is to say: no role at all. They are all but written out of the Report. The Report assumes that the “balance” to be struck is between two identifiable interest groups: copyright owners and online service providers. But all kinds of people rely on online service providers to put out their content. Some of these are ordinary, important only to the maker and their friends, e.g., a video of a baby dancing to “Let’s Go Crazy.” Others are big business, e.g., certain YouTube channels. These people have an interest in expressing themselves via a medium that their audience can access.

Are improper takedown notices a big problem? Wait. Let me rephrase, because I think any improper takedown notice is a big problem because it interferes with free expression and free enterprise. Are improper takedown notices very frequent?

No one knows! One might have hoped this Report would shed some light on how extensive improper takedown notices are. That, in turn, might have informed Congress’ analysis of § 512(f), which is supposed to discourage improper takedown notices but is toothless. Maybe it needs teeth (my guess). Maybe it’s fine the way it is. Without reliable empirical evidence, the Report can’t say.

What About the Users?

But it’s worse than that. The Report is not interested in the effect of improper takedown notices on users. When discussing § 512(f), the Report frames the discussion as a matter of cost to the copyright holders and to the online service providers (neither of whom are especially credible on this subject). Any inconvenience to users’ business or free-expression rights is acknowledged with only a nod towards, “…potentially impacting important free speech concerns.”

The Report then went on to discuss in which a clearly improper (but possibly not illegal) takedown notice really did affect someone’s free expression rights: Lenz. That’s the case where the Stephanie Lenz videotaped her child dancing for 29 seconds to Prince’s “Let’s Go Crazy” and posted it on YouTube. Prince’s publishing administrator reviewed the video, determined it infringed the copyright in the song, and got YouTube to take it down via the notice-and-takedown procedure. Lenz sued under § 512(f) on grounds that, toothless as it is, copyright holders must at least consider fair use before issuing a takedown notice. The Ninth Circuit agreed with her in a decision that I like but am not entirely certain was correct.

The point is that nowhere does the Report talk about Lenz’s point of view in all this. The Report worries about the burden a cursory fair-use analysis might have on copyright holders, especially where automated detection and takedowns are used.1Even though, in Lenz, the video was reviewed by, and the notices issued by, a human being. It worries that online service providers might ignore otherwise proper notices because they are automatically generated (as, apparently, one online service provider said it was doing).

Who Will Speak for Users?

In any serious treatment of the safe harbors of § 512, the user’s point of view must be considered. Not to be coddled: many users are infringers! But many are not. Section 512, and especially § 512(f), must take into account the interference improper takedown notices have on user’s enjoyment of online services. You can’t count on online service providers to stick up for users, even if their interests coincide somewhat.2All the more so since, as the Cox Communications cases have laid bare, some online service providers actually want to help infringing users more than non-infringing users.

It’s nice that the Copyright Office looks out for copyright holders and invited online service providers to the table, but someone’s got to look out for users.

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.

    Footnotes   [ + ]

    1. Even though, in Lenz, the video was reviewed by, and the notices issued by, a human being.
    2. All the more so since, as the Cox Communications cases have laid bare, some online service providers actually want to help infringing users more than non-infringing users.