Stakeholders Seek to Define DMCA Section 512's Needed Balance, in CO Comments

Submitted comments and draft comments we reviewed addressed the CO’s second-round questions on Section 512, hewing toward well-known divisions among stakeholders visible in earlier comments (see 1604010057, 1604040051 and 1605130047). Content-side commenters continued to argue the CO should recommend changes to Section 512 that would in part implement a “notice and stay down” takedown regime. Tech sector interests warned against amending 512 and emphasized ways they believe the system remains effective.

RIAA, NMPA and 13 other music industry entities jointly urged the CO to recommend that Congress fix the “broken and antiquated” section. The safe harbors “suffer from numerous key failings that have resulted in a heavily skewed playing field where service providers can either comply with their minimal safe harbor obligations -- and thereby obtain immunity from damages liability and avoid obtaining licenses from rightsholders -- or use the safe harbors strategically in licensing negotiations with rightsholders to extract rates far below fair market value,” the music industry stakeholders said. “Service providers, including large technology companies, can help to restore much of the balance Congress intended to strike by agreeing to adopt standard technical measures and/or voluntary measures to address the DMCA safe harbors’ key failings.” Other music entities that signed on: top four performing rights organizations the American Society of Composers, Authors and Publishers, Broadcast Music Inc., Society of European Stage Authors and Composers and Global Music Rights. The Screen Actors Guild-American Federation of Television and Radio Artists and SoundExchange were also signatories.

The Content Creators Coalition, which joined that filing, separately submitted a video from CCC Advisory Board member T Bone Burnett in which the musician said Section 512’s safe harbors “have failed” to “balance the Internet’s openness with creators’ ability to earn a living wage from their work.” The safe harbors must be “restored” so “only responsible actors earn their protection, not those who actively profit from the abuse and exploitation of creators’ work,” Burnett said in the video. “Technology must be enlisted to make the system work better, not to roadblock progress in a pointless arms race of whack a mole and digital deception.” Other content sector interests were expected to separately file comments, including Gear Music Publishing and Ringtone Intellectual Property Group.

The Library Copyright Alliance urged the CO to evaluate Section 512 in balance with the rest of the DMCA. LCA noted that content creators strongly praised DMCA Section 1201 as currently written and urged against amending that section (see 1610270063, 1611010059 and 1611170052) while continuing to decry 512. “Although Congress attempted to achieve a degree of balance within each title” of the DMCA, “the grand bargain of the DMCA was the marriage” of an earlier bill implementing the World Intellectual Property Organization copyright treaties and a safe harbor bill sought by the tech sector, LCA said. “Given the tradeoffs that Congress made in assembling the DMCA, the [CO] should not assess the impact of any title in isolation.”

Public Knowledge and the Computer & Communications Industry Association were expected to separately file comments urging against changes to 512. PK was expected to focus on the need for the CO to “take into account the public interest” when considering the balance the current statute achieves, said Policy Counsel Raza Panjwani. PK planned to highlight recent examples of how the section has allowed online content creators, including “artists of color,” to distribute content through nontraditional channels such as SoundCloud, Panjwani told us. CCIA indicated its filing would emphasize that 512’s notice-and-takedown system is effective and that amending the statute to increase regulatory burdens on online services would harm industry.

The Re:Create Coalition planned to emphasize that the internet has allowed content creators to innovate and has allowed the proliferation of nontraditional forms of expression like remixes and fan fiction, said Executive Director Joshua Lamel. Examining a rewrite of Section 512 is “not something that should be taken lightly” given that innovation in content distribution, he told us. Re:Create planned to echo the LCA and others in urging that the CO not view Section 512 separately from the rest of the DMCA since it helps balance out other aspects of the “compromise” that Congress sought in passing the 1998 law.

Some questioned how the CO would factor in all of the feedback submitted over the two rounds of comment on Section 512. The office received more than 91,000 comments last year during the first filing round. “They’re going to have to huddle after this round is completed and figure out how to deal with it all,” said a music industry lobbyist. The CO may choose to simply lay out all of the existing issues with Section 512 “and tell Congress to sort it all out,” the lobbyist said. Lamel said he’s hopeful empirical studies on 512 that are due to the CO March 22 will help the CO make a “proper analysis” of the statute’s efficacy. A tech sector lobbyist predicted the CO’s eventual report will include a mix of recommendations for limited legislative updates to Section 512 and a call for “voluntary agreements that stakeholders can live by” to augment the statute.