In a five-minute video appeal posted February 21 and available for viewing at https://vimeo.com/204940925/ce417a2098, Nashville music producer T Bone Burnett recently urged the U. S. Copyright Office to close safe harbor loopholes in Section 512 of the Digital Millennium Copyright Act. Current provisions in the DCMA require that music creators identify and request removal of pirated material from internet search engines and video services. A multitude of prominent artists including Sir Paul McCartney, Lionel Richie, Taylor Swift and Steven Tyler have previously called for copyright reform. The U.S. House Judiciary Committee will consider more stringent copyright legislation later this year.
A current dispute in copyright law for which public policy does not offer a simple solution is: who should be responsible for finding copyright infringing material on the Internet and enforcing the DMCA takedown provisions? This question is one of incentives, deterrence, and safe harbors as the DMCA has been written by Congress and interpreted by courts. The Copyright Office was recently accepting public comments on Section 512 of the Copyright Act which is likely what spurred T Bone’s recent remarks. T Bone’s remarks show that many individuals such as musicians and other creators of copyrightable content are not satisfied with the current system. T Bone wants changes in the statute to put more of the onus on internet service providers such as Google, YouTube, Facebook, and other providers of online user uploaded content. He believes that the current system of internet service monopolies acting within the safe harbor of the DMCA allows companies like Google to pay artificially low royalty fees to artists. The current system incentivizes copyright owners to patrol the Internet in a perpetual game of whack-a-mole to find infringing works, then notify the internet service of the infringing content through a takedown notice.
The statutory authority for the safe harbor of internet takedown of copyright infringing works is found in 17 USC § 512: Limitations on liability relating to material online. Subsection (c) discusses information residing on systems or networks at direction of users. That section sets up the rule that internet service providers shall not be liable for infringing material unless they have actual knowledge of the infringing work or do not act expeditiously to remove infringing content reported to them.
An Example Federal Court Case
Courts have interpreted this statute to require actual or “red flag” knowledge of specific instances of infringement; some have found the common law willful blindness doctrine applies. An excellent example of a court’s decision based on the statutory language of §512 is found in the Second Circuit’s 2012 Viacom case. Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 25-38 (2d Cir. 2012). In Viacom, the Second Circuit affirmed that actual knowledge or awareness of facts or circumstances that indicate specific and identifiable instances of infringement will disqualify a service provider from the safe harbor.Id. at 32. The court discussed in further detail that as §512 does not mention willful blindness, the court presumes that this common law doctrine still applies as there is no evidence that the statue has abrogated it. Id. at 35. Therefore, it remanded the willful blindness issue to the District Court. Id.
A Comment Advocating for Change
A comment submitted to the U.S. Copyright Office in the matter of §512 by Jenner & Block attorneys Kenneth Doroshow and Scott Wilkens on February 21, 2017, reads similar to a Supreme Court amicus brief with several proposed changes to §512 that the Copyright Office should recommend to Congress according to the comment. Joint Supplemental Comments in the matter of Section 512 http://src.bna.com/mnc (accessed on February 25, 2017). One proposed solution is to revise the language of §512 to impose a duty on large internet providers of user uploaded content to use effective technology to monitor and find infringing works or review before uploading. Id. They argue persuasively that the United States should follow the European Union example by creating this duty similar to what has been proposed in: European Commission, Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on copyright in the Digital Single Market, Sept. 14, 2016, at 20 https://ec.europa.eu/digital-single-market/en/news/proposal-directive-european-parliament-and-council-copyright-digital-single-market. Another proposed solution is to eliminate or clarify the “red flag” knowledge provision of §512. Joint Supplemental Comments in the matter of Section 512 http://src.bna.com/mnc (accessed on February 25, 2017). Congress could choose to apply the common-law standard for vicarious liability in this area. Id. One other possible solution they offer is to require that, once a service provider receives a takedown notice with respect to a given work, the service provider use automated content identification technology to prevent the same work from being uploaded in the future. Id.
Arguments for the Status Quo
On the other side of the issue, companies like Google and Facebook have a vested interest in maintaining the current language of §512 that effectively has limited their liability for user postings of copyright infringing works. They would likely agree with the theory that they are not involved in any volitional conduct when a user uploads an infringing work and imposing a legal liability on them to review the work before posting raises Constitutional problems of censorship under the 1st Amendment. They already pay some royalties to copyright owners for some uses of content and §512 strikes the appropriate balance in deterring copyright infringement and allowing networks of users to upload content and continue to be profitable. Revising the statute to impose an affirmative duty on technology companies could increase their operating costs and lead to lower profitability which may hurt their stock value and stunt the growth of technology companies.
My opinion is premised on the belief that the technology already exists for large companies such as Google and Facebook to review user content at the time of posting to check for copyright violations. Congress could reasonably impose a duty on them to use this technology or else be liable for user posted copyright infringement. I would prefer to see the language of §512 revised to allow a more limited safe harbor by imposing a limited duty to monitor on all internet services with over 1,000,000 users. I would not want this requirement to overly burden small businesses that could not afford the technology. Companies like Google and Facebook already possess this technology and currently use it sporadically. Requiring more from them would, in my opinion, better align the copyright incentives to reward copyright creators in the digital age. It would also eliminate copyright holders from wasting time and money engaging in whack-a-mole take- down notices. I do not think the best public policy counsels in favor of leaving the status quo in place as to §512.