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Copyright Office Calls for Changes to Whack-a-Mole Takedowns (1)

May 21, 2020, 4:50 PMUpdated: May 21, 2020, 9:41 PM

The U.S. Copyright Office offered recommendations to Congress for updating copyright law to clarify online publishers’ responsibilities and takedown processes for infringing materials posted by their users.

The office said in a new report that while it’s not seeking any wholesale changes to the Digital Millennium Copyright Act, the law could be fine-tuned. It proposed requiring platforms like Twitter Inc., Facebook Inc. and YouTube to provide written, public policies for terminating services of repeat infringers rather than just internal policies. Congress could also clarify when a platform’s knowledge or willful blindness of infringement removes protections from liability unless they remove offending materials, the Copyright Office said.

Legislators have been holding hearings to determine whether the 1998 law needed an upgrade to adapt to the modern online publishing ecosystem. The law was meant to help copyright holders defend their rights in an environment of easy infringement, while allowing online platforms freedom to develop without facing massive copyright liability for their users’ actions.

The Copyright Office said “Congress’ original intended balance” of those competing interests “has been tilted askew.” Platforms generally reported the legal system has been working, allowing them to grow exponentially. But those in creative industries say the law’s implementation still allows for rampant infringement and a “whack-a-mole” problem of infringing works reappearing after being taken down, the office said.

Sen. Thom Tillis (R-N.C.), who heads the Senate’s subcommittee on intellectual property, said in a statement that the report confirms that the law is “in dire need of revisions.”

The report will be helpful as the subcommittee continues its “yearlong slate of hearings” on DMCA reform legislation, Tillis said. The next hearing is scheduled for May 27.

Safe Harbor

The Copyright Office also suggested lawmakers consider an alternative model of resolving disputes involving takedown notices of infringing materials.

The DMCA creates a safe harbor for platforms that participate in the notice-takedown-counternotice system and other requirements. Platforms must quickly remove allegedly infringing materials upon proper notice. But users can have them restored in 10 to 14 days if they file a counternotice saying they don’t infringe.

The agency said the 10-to-14 day window is too long for legitimate speech to remain down in the modern online environment and too short for content creators to mount a lawsuit. The office also suggested that Congress weigh stricter penalties for misrepresentations in notices and counternotices.

The report also said courts have struggled with the relationship between DMCA’s requirement for platforms to act on infringement and provisions that relieve them of a costly duty to monitor all users. The DMCA requires web platforms to act on actual knowledge of infringement as well as “red flag knowledge,” or infringement they should have found.

Congress should consider clarifying what constitutes “red flag” knowledge, especially since common law often only counts willful blindness to specific incidents rather than avoiding awareness of general activity, the report said. Incorporating a reasonableness standard into such definitions might help account for differences among platforms, it added.

The DMCA has a provision for rightsholders to subpoena platforms to identify an infringer. But it’s rarely used because courts have interpreted it restrictively and the information learned is often useless, the report said. Congress should consider clarifying whether the provision applies to internet service providers, which may be the only way to learn identities of users engaged in activities like peer-to-peer file-sharing.

The Copyright Office said some more extreme proposals from rightsholders—like notice-and-stay down, where a platform has to prevent the infringing work from re-emerging, and website-blocking—need more study before it can recommend them.

Congress probably didn’t contemplate the sheer volume of content that would be uploaded on a daily basis when it crafted the law, music industry lawyer Jordan Bromley of Manatt, Phelps & Phillips, LLP said.

“I think people need to look at why it’s not changing, and put pressure on big tech to come to the table and come up with a reasonable solution. Creators are the only ones hurting,” Bromley said. “This is a very heavy lift, but it’s doable.”

(Updated with additional reporting throughout)

To contact the reporter on this story: Kyle Jahner in Washington at kjahner@bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloomberglaw.com, Keith Perine at kperine@bloomberglaw.com

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