Direction of Copyright Office's Section 512 Study Wide Open Ahead of Roundtables
The direction of the Copyright Office’s study of the Digital Millennium Copyright Act Section 512’s notice-and-takedown process and the section’s safe harbors remains highly fluid ahead of the conclusion of the first of CO’s two planned roundtables on Section 512, multiple participants in the first sessions said in interviews. The first roundtable, which began Monday and is to conclude Tuesday, is at the Thurgood Marshall U.S. Courthouse in New York. The CO is planning a second event May 12-13 at the James Browning U.S. Court of Appeals Building in San Francisco.
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Any CO guidance on how it plans to proceed on its study will likely be the most important information to come out of the roundtable discussions since participants’ comments during both are likely to largely parrot their existing positions on the section, stakeholders said. Several participants in the New York gathering told us they would be summarizing portions of comments they filed last month on the Section 512 study (see 1604010057 and 1604040051), though some said the CO would have more power to steer the direction of the discussions. “Everyone’s going to say what they’ve been saying for the past 18 years” about DMCA, a publishing industry lobbyist told us. “What [the CO] thinks it can get out of a discussion like that is really baffling.”
The roundtables are likely to dredge up “pretty much every issue imaginable” about the section’s notice-and-takedown process and its safe harbors that have come up since DMCA was enacted in 1998, said Copyright Alliance Vice President-Legal Policy Terry Hart. “It’s safe to assume that you’ll end up with the normal battle lines” on DMCA issues, said Library Copyright Alliance Counsel Jonathan Band. Band, Hart and others predicted many content creators would say implementation of Section 512 has fallen short of Congress’ goal of bringing stakeholders together to address online piracy.
Users and service providers will likely say the process has been effective but will raise concerns about how the notice-and-takedown process affects fair use, Hart and others said. All parties are “really entrenched in their views” on the issue, said Organization for Transformative Works board member Rebecca Tushnet, a Georgetown University Law School professor. “This isn’t a case where there are many areas of possible compromise to be found, unfortunately.” Likely repetition of stakeholders’ existing positions on notice and takedown may ultimately convince the CO to recommend maintaining status quo implementation of the section, a publishing industry lobbyist said. “The fact that you have one set of parties saying [Section 512] goes too far in one direction and another set saying it goes too far in the other direction may indicate that the current compromise is just right,” the lobbyist said.
How the CO explains its plans for the Section 512 study may be of more value than stakeholders’ comments during the talks, since comments are expected to hew largely to arguments made in earlier filings to the CO, a music industry lobbyist told us. “These roundtables really don’t move the needle much farther than what we’ve already seen in the filings,” the lobbyist said. “In fact, we find the filings tend to provide more clarification because that level of detail is often lost when people talk past each other.”
Digital Media Association (DiMA) General Counsel Greg Barnes told us he’s hoping the CO will give some guidance on next steps and the direction it will take in a final report on its study. “We want to know if this report is going to just summarize the issues that Congress should look at or if [the CO] will recommend legislative reforms,” he said. Future of Music CEO Casey Rae said he wants the CO to indicate what its timeline for the Section 512 study will be, noting the six-month window that exists before the November election. Rae said he’s dubious the CO will provide much guidance on how it plans to proceed, since during 2014 roundtables on the office’s music licensing study, CO officials only listened to the discussion.
The CO will be able to guide the direction of the discussions to some extent because they're divided into panels on specific topics, but it’s still “hard to predict where the conversation will go,” Band said. Panels in New York include ones focusing on applicable legal standards for Section 512, technological solutions to identifying infringing content, and voluntary measures like the Copyright Alert System (CAS). Many of the participants in New York represent content creators, which is at least somewhat likely to color the information the CO gleans from discussions there, Hart said. The San Francisco version is likely to be dominated by online service providers and digital rights groups, he said.
Barnes, Hart and Rae all indicated they'll urge the CO to recommend that stakeholders pursue further voluntary processes to solve existing problems with Section 512 implementation. Hart said he believes it’s valuable for the CO to seek additional voluntary measures, given the success of CAS and other previous measures. The CO should ensure future measures are “as inclusive as possible,” he said. DiMA believes voluntary processes are far more valuable than pursuing a wider copyright legislative revamp because such processes can address notice-and-takedown problems “with a laser focus,” Barnes said. Development of voluntary best practices could conversely allow Congress additional time to consider what issues to tackle in a legislative revamp, Rae said.