Shortly before Christmas, the Senate Judiciary Committee released the discussion draft of a bill to amend the copyright law, primarily the sections known as the Digital Millennium Copyright Act of 1998. There is something in the proposals for everyone to like or hate, but it is important to keep in mind that this is the starting point for what will be several years’ worth of negotiations. Although that legislative reality may not stop the copyright critics and the tech industry from fulminating early and often, I shall try, with this post, to describe a few of the major proposals without strenuously arguing for or against any one amendment. Each new recommendation deserves thorough discussion. But not today. We have a long way to go.
Section 512 Proposals
The big headline—and one that probably nobody likes—is that the discussion draft essentially throws out the four safe harbors and calls upon the National Telecommunications and Information Administration (NTIA) to develop a new set of criteria. Presently, the DMCA defines four types of service provider activities (e.g. system caching) and the conditions each must meet in order to retain immunity for liability stemming from infringements caused by users. This nearly blank-slate approach is such a bombshell in everyone’s camp that it is far too early to comment on what the responses will be.
One of the most significant proposed changes, which copyright owners have advocated for years, is a response to the complaint that courts have consistently misinterpreted what it means for a service provider to have “knowledge” of infringement on their platforms. The discussion draft includes new language meant to clarify Congress’s original intent and, in principle, limit a service provider’s ability in court to claim that they are innocently unaware of infringing material on their platforms.
The knowledge issue is the king gremlin of all DMCA squabbles, especially for smaller copyright owners (e.g. indie musical artists), who reasonably ask how can a company like Google claim to anticipate what everyone wants for breakfast but cannot know when certain works are repeatedly infringed on YouTube? In that spirit, the discussion draft introduces the conduct of willful blindness on the part of the OSP as grounds for abrogating the §512 liability shield, and it also recommends a burden on the OSP to contact and assist the notice sender who has made certain, partial errors in a takedown request. Ultimately, it is hoped that clarifying the knowledge standard will help to achieve a “notice-and-staydown” regime whenever “complete and near-complete works” are uploaded to a platform.
On the other side of that coin, the critics of the takedown mechanism will presumably like the working draft’s call for stricter penalties for bad faith misrepresentations, including specific sanctions against repeat wrongful takedowns by any party. That said, I imagine the same critics will grumble at the notion that bad faith misrepresentation can cut both ways (e.g. for counter notices), and I assume they will scream blue murder at the suggestion that the Copyright Claims Board, to be formed at the Copyright Office under the provisions of the CASE Act, would be the body to adjudicate allegations of bad faith use of the DMCA.
On that subject, expect the anti-copyright critics to marshal its rhetorical forces to scorn the expanded role the USCO would play in general under the provisions of the discussion draft. In addition to the above-mentioned role of the CCB, the bill envisions the Copyright Office writing and maintaining standardized rules and forms for the notice and counter-notice process and giving the Register of Copyrights the authority to determine what personal information (e.g. of an alleged infringer) may be protected by a service provider. Further, pursuant to a proposal mentioned below, the USCO would maintain a list of notices for “orphan works” being used without license, after a user makes a good faith effort to locate the rightsholders.
Section 1201 – Trafficking in Circumvention Devices
This is the part of the statute copyright owners would prefer to be left intact, and many stakeholders on that side of the debate will probably be highly critical of the proposed changes in the discussion draft. 1201establishes prohibitions against circumventing technical measures used to protect copyrighted works in the digital age—an original example being the encryption software used to protect a CD or DVD against copying.
Although the discussion draft comes nowhere near the kind of holistic assault on 1201 that groups like the EFF would like to see, it does propose to substantially alter, if not repeal, the prohibition against trafficking in devices used for circumvention. We can expect rightsholders to fight hard on that one. Meanwhile, there may be room for compromise on the recommendation that the Register be given the authority to make certain types of circumvention permanently exempted, so that, for instance, good-faith researchers do not need to reapply every three years for exemptions they have received in the past.
Section 1202 – Encouraging Attribution
This part of the DMCA, not often enforced or discussed in the public copyright conversation, prohibits the removal of copyright management information (CMI) from a work. The one proposed change to this part of the DMCA would alter the intent aspect of this conduct. As it stands, the potentially liable user must remove the CMI with the intent to cause (and presumably hide) an infringement. But the revised language would make removal of CMI with the intent to deny attribution to the author the only standard necessary to be potentially liable under the DMCA. Expect copyright critics to complain about this, though not quite so loudly as the 512 proposals.
The discussion draft proposes that a user of a work be allowed to do so without license in circumstances where the rightsholder cannot be found (i.e. the work is “orphaned”). This liability exception would require the user to meet several conditions, including a documented, good-faith effort to locate the rightsholder; providing appropriate attribution to the author; and filing a Notice of Use with the Copyright Office (mentioned above).
While this proposal sounds reasonable and balanced with respect to the individual user, or perhaps the not-for-profit library, a related problem to-date has been that big, corporate entities (e.g. Spotify) have used the Notice of Intent mechanism (§109), in conjunction with their technological capabilities, to create a pseudo-licensing regime for works en masse.* And, as rights advocate Chris Castle has noted, many of the works alleged to be “orphans” have been famous songs for which the owners are not hard to locate. We’ll see how this proposal shakes out, but suffice to say, an amendment designed to serve the individual creator or educator should not become a new loophole for the likes of Spotify and YouTube to exploit.
Relocation of the Copyright Office
Given the expanded role of the Copyright Office proposed in the discussion draft, we can expect to hear the usual suspects dredge up their unfounded allegations that the USCO “cannot be trusted,” or that it is “culturally captured by the major copyright owners.” But what will really get the copyright skeptics in a lather is the proposal that reprises a longstanding notion to relocate the Copyright Office out of the Library of Congress (into the Department of Commerce), and to make the Register of Copyrights a presidential appointee. I have written a couple of posts asserting the fundamental soundness of making the Copyright Office independent of the Library, and no doubt this subject will need revisiting as the storm clouds gather around this recommendation.
Other Key Proposals
The rest of the discussion draft addresses other matters not specific to the DMCA. It contains the language of the CASE Act such as it would be added to Title 17, which is the full U.S. Copyright Law. It proposes changes to the registration process so that good faith errors made by applicants are not refused protection, if the work would be otherwise eligible for registration. It contains an amendment to abrogate a registration if the application was filed in bad faith. And it contains a provision to amend original applications to add derivative works rather than file new applications for each derivative.
In short, there are several proposals (likely uncontroversial) that aspire to streamline Copyright Office processes and/or save applicants money on fees, but we shall see where any of this goes. Beyond that, I shall spare readers any attempt to summarize all the draft recommendations in one post. As I say, we are only at the beginning of a very long process, and each of the major amendments should be discussed in deeper dives. Deep dives to follow. Some breath holding will be necessary.
*NOTE: Though prior use of the NOI process is still relevant to the discussion, it should be noted that the practice of obtaining licenses for music via NOI was eliminated by the Music Modernization Act.
© 2021, David Newhoff. All rights reserved.