CO Receives 91,000 Comments on DMCA Section 512 Study Campaign

The Fight for the Future-generated Section 512 comments outnumbered comments submitted by other copyright stakeholders, though it’s unlikely that the CO will give those comments greater weight as a result, said music industry attorney Chris Castle in an interview. The CO “is going to have to parse through these comments and will probably end up having to discount most of those comments” if they all contain the same message, said Castle. “This isn’t like an election where every comment has the same weight,” Copyright Alliance (CA) CEO Keith Kupferschmid told us. The CO “is going to take a deeper dive and look at the substance of the comments," he said. "If they see the same generic comment template repeatedly, I think those comments will have significantly less weight.” Available stakeholder comments generally tracked with expectations that stakeholders either would favor maintaining Section 512’s current safe harbors and notice-and-takedown process or would call for a major revamp of the section’s provisions (see 1604010057). The CO hadn’t posted the Section 512 comments at our deadline.

Fight for the Future wasn’t aware of the Section 512 study “until the last minute” and didn’t intend its campaign to flood Regulations.gov with comments so close to the comments deadline, said Campaign Director Evan Greer in an interview. The group intended TakeDownAbuse.org to be an outlet for members of the public to add their voices to the CO’s process, which Greer said is “often dominated by the music industry, Hollywood and others who have a vested interest” in restricting fair use. Fight for the Future hasn’t made specific plans yet to formally participate in the CO’s Section 512 study process but is likely to have some form of “grassroots campaign” related to revamping the notice-and-takedown process, Greer said.

Fight for the Future’s template comment text criticizes the CO’s existing notice-and-takedown process for being "heavily biased in favor of corporate copyright holders and too commonly used to censor content that is protected under fair use.” The template comment calls for “new safeguards” in DMCA interpretation “to protect against abuse,” including imposing statutory damages against companies that abuse the notice-and-takedown process. The template comment also cites a recent study by Columbia University's American Assembly and the University of California, Berkeley, School of Law, that found that more than 32 percent of a sample group of takedown requests were either “fundamentally flawed” or had some characteristics that raised doubts about their validity.

The Electronic Frontier Foundation also raised concerns about improper takedown requests and endorsed a series of steps to rein in filtering technologies that the group says contribute to notice-and-takedown abuses. EFF backed requiring filtering technologies to establish that content’s video and audio tracks both match the same copyrighted work and that more than 90 percent of the content is from a single copyrighted work. The group also backed requiring a service provider to give a user the opportunity to dispute a filtering technology’s claim of infringement. EFF said Section 512’s safe harbors are largely working as intended and cautioned against language in potential legislation that could undermine them.

The CA said it believes Section 512 “is under strain and that additional stakeholder collaboration is needed in order for the statute to live up to its potential as imagined by Congress.” Further improvements to automated infringement detection technologies are essential to “keep pace with new technologies and new types of online infringement, the CA said. “More needs to be done to ensure that individual creators, who are the lifeblood of the creative community, are not left behind in a world where human review alone is no longer practical.” Courts “need to ensure that bad actor [online service providers] do not continue to operate under the protection of the Section 512 safe harbors,” the CA said. “The courts should also ensure that the underlying goals of the DMCA and the intent of Congress are effectuated by, for instance, enforcing Section 512’s statutorily-required repeat infringer policies; properly applying the red flag knowledge standard; and recognizing the flexibility provided in the ‘representative list’ language.”

Public Knowledge believes Section 512 has achieved many of the “interrelated goals” Congress intended, but “it is less clear that users’ free expression interests have been adequately protected” by the section. “As important as it is to provide copyright owners with tools that enable efficient removal of infringing material, it is also important that any legal regime not be so onerous as to stifle entry into the online service provider marketplace,” PK said in its filing. The group also backed many of the proposals EFF endorsed, calling in part for Congress to “authorize the creation or designation of a public repository for takedown notices.” There should also be more public education on “the limits of copyright law,” which would “free copyright owners to focus on legitimately infringing material, and free online platforms to focus on responding expeditiously to legitimate takedowns,” PK said.

The Re:Create Coalition backed maintaining Section 512’s existing balance, noting the importance of the safe harbors and the notice-and-takedown process. The notice-and-takedown process “is an essential part of the system” that “rightfully recognizes that Internet intermediaries should not have to be the police or monitor for infringing works,” the coalition said. “The risk of being responsible for infringing content would be a huge burden on online intermediaries that host content, like YouTube, WordPress, Facebook and Etsy. The same goes for some basic functions of the Internet like comment sections and blogging platforms that depend on user generated content. Without this balance, it is likely the Internet we know today -- a place where creativity is thriving -- would not exist.”

The Information Technology and Innovation Foundation said the CO and Congress “should not take steps that would weaken protections for rights holders.” Although the existing notice-and-takedown process “is not perfect, there are clear societal benefits to removing infringing content from the Internet,” ITIF said in a filing. “Widespread piracy has a negative economic impact, seriously harming the artists who create content and the technicians who produce it.” The CO should examine the effectiveness of the current notice-and-takedown process based on both how many false takedown requests are transmitted and “false negatives” -- infringing content that filtering doesn’t detect, ITIF said.