Draft legislation to overhaul online copyright enforcement would give the U.S. Copyright Office new powers to enforce regulations and put more pressure on service providers to curb infringement.
The “discussion draft” proposed by Sen. Thom Tillis (R-N.C.) Tuesday also would create new procedures for copyright owners to request removal of infringing materials, and for users to contest such claims. The protocols are designed to funnel many disputes into a new small claims court within the Copyright Office.
The bill would make the Copyright Office, currently part of the Library of Congress, a regulatory agency in the executive branch.
The proposal would be the first substantial update to the 1998 Digital Millennium Copyright Act. Its changes could dramatically affect content creators’ rights, the liability of platforms used for mass communication, such as
“Rather than tinker around the edges of existing law, copyright modernization ought to reform the framework to better encourage the creation of copyrightable works and to protect users and consumers who are making lawful uses of copyrighted goods and software-enabled products, respectively,” Tillis said in a statement.
The bill introduction marks the beginning of what could be several years of tough negotiations involving groups with strong concerns about the shape of the bill.
Growth of Internet
Congress created the 1998 copyright law to let then-nascent internet service providers and web platforms grow by creating a conditional safe harbor from liability for their users’ copyright infringement. Service providers must meet certain obligations to qualify, including agreeing to remove allegedly infringing material upon receipt of a takedown notice from the copyright owner.
Alleged infringers can contest the takedown notice with a counter-notice, giving the copyright owner 10 to 14 days to respond with a lawsuit, or the work can be reposted.
In the new takedown procedure outlined in the draft bill, if a user filed a counter-notice, the material could go back up in five days.
The copyright owner could keep the work down for 30 more days by certifying it expected damages to exceed the small claims tribunal’s $10,000 per work maximum and that it intended to sue. It could also summon the infringer to the tribunal for an expedited resolution. The user could opt out, forcing the rightsholder to sue.
The tribunal is an expanded version of the Copyright Alternative in Small-Claims Enforcement (CASE) Act that passed Congress Monday in an omnibus bill. The tribunal would also hear claims of bad-faith notices and bad-faith counter-notices, which Tillis’ proposal would penalize.
The creator-provider balance has tilted to favor tech companies, Tillis, content industries, copyright advocates, and the Copyright Office have all said in recent months. Infringement is rampant while litigation costs outstrip possible awards, leaving creators unenforceable rights, they say.
Copyright groups praised Tillis’ draft. The Copyright Alliance called it the first step toward a workable compromise. It said internet platforms could have addressed concerns by negotiating with rightsholders in good faith, but failed.
“While all copyright owners are harmed by rampant online infringement, it is individual creators and small businesses who are most devastated,” Copyright Alliance CEO Keith Kupferschmid said. “They have urged reform of the DMCA’s Section 512 because they have no other means to protect themselves.”
Tech and consumer groups have said the DMCA largely works to keep the internet free while giving rightsholders a powerful tool to remove material with a mere allegation. They warn weakening safe harbors would undermine the entire system of user-generated content, likely forcing platforms to over-censor in the face of increased liability.
They also have called the CASE Act unconstitutional for settling private disputes without an Article III court or the express consent of the accused party.
Other Provisions
The National Telecommunications and Information Administration would define the types of providers eligible for safe harbor protection in consultation with the Copyright Office.
The Register of Copyrights, who leads the Copyright Office, would become a presidentially appointed position subject to Senate confirmation.
In addition, service providers would face a lower bar for how much they know or should know before they must act on infringement.
The DMCA says services must act on “actual” or “red flag” knowledge of infringement. Critics say courts have defined red flag as essentially the same as actual knowledge. The proposed changes would require monitoring for infringement wherever reasonable.
The proposal also would provide for the establishment of best practices for services to combat piracy. Companies would need to implement the practices in order to be eligible for safe harbor protection.
Longtime Opposition
Tech, public interest, and consumer groups have long opposed many of the bill’s provisions, which they say threaten a free internet and free speech. The law already allows for potentially legal speech to be removed based on an accusation, and the counter-notice process for contesting is impractical, critics say.
Copyright law professor Rebecca Tushnet of Harvard University called the proposal a “giveaway” to content industries and a “massive new expansion in new regulatory authority.” Tushnet is a member of the legal committee of the Organization for Transformative Works, which advocates for the protection of fair use of existing material by incorporating them into new creative works.
The Copyright Office would have new power to settle disputes among private parties usually reserved for courts, raising constitutional questions that the move to the Commerce Department doesn’t fully address, Tushnet said.
The proposal also calls for a takedown-staydown provision requiring a platform to remove all versions of a flagged rip-off of an entire existing work, and prevent future uploads.
The Internet Association, which represents
“So-called ‘notice and stay down’ proposals remain both technically infeasible and fraught with potential to dramatically limit both licensed and fair use of content,” IA director of federal government affairs and counsel Mike Lemon said in a statement.
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