Last week, the U.S. Copyright Office published Notices of Request and Public Comment for both parts of the Digital Millennium Copyright Act: Section 512 (limitations of copyright liability for online service providers) and Section 1201 (prohibition of DRM circumvention). Jacqueline Charlesworth, General Counsel of the Copyright Office, will be discussing both of these — and more — when she gives the keynote speech at our Copyright and Technology NYC 2016 conference on Tuesday January 19th. (Register today!)
In both of the studies, anyone can submit written comments, and after the comments have been posted, the Office will hold public discussions. Deadlines for written submissions are February 25 for the Section 1201 study and March 21 for the Section 512 study, though the Section 1201 study also has a March 25 deadline for replies to comments submitted by the February 25 deadline.
The Section 512 study is broad in scope. It invites people to submit comments on a wide range of issues, including effectiveness of the notice-and-takedown process; accessibility of the law to small entities (both copyright owners and service providers); efficacy of automated processes for both detection of alleged infringements (e.g., through fingerprinting) and processing of notices; effectiveness and fairness of the counter-notification process; the potential for replacing “notice and takedown” with “notice and staydown”; and the overall effectiveness of the law in striking a balance between the interests of copyright holders and service providers.
The study notice mentions that because of a lack of specificity in the statutory language, courts have had to interpret various portions of Section 512. As a result, we look to many court opinions to get clarity on concepts such as “red flag knowledge” of or “willful blindness” to alleged infringements, the “financial benefit” and “right and ability to control” standards for service provider liability, the precision of content identifiers or locators required in takedown notices, policies that service providers must have in place for terminating the accounts of “repeat infringers” in order to qualify for the safe harbors, and so on. The study invites people to comment on whether or not the courts have interpreted these statutory concepts appropriately. The study cites a “greatest hits” of Section 512-related litigations: Viacom v. YouTube, UMG v. Shelter Capital (Veoh), CCBill v. Hotfile, Columbia Pictures v. Fung (IsoHunt), UMG v. Lenz (“Dancing Baby”), and various others.
A huge amount of virtual ink has been spilled about inadequacies of Section 512. Copyright owners, service providers, legal scholars, and others have all expressed frustration with it in Congressional hearings, court, the press, legal publications, blogs, etc.; the study notice summarizes the concerns that have been raised. This is the case even though at least one study has found that stakeholders would generally prefer to have the law as it is rather than not have it at all.
This study should attract a larger number and broader range of inputs into Section 512 than previous attempts to assess it such as the March 2014 Congressional hearings. It promises to be an excellent vehicle for intelligent summary of stakeholders’ concerns — including those who aren’t lawyers and can’t afford lobbyists — and of distillation of conclusions into recommendations. The Copyright Office has no direct power to change the law, but as its mission is to serve as Congress’s official consultant on copyright, the findings from this study ought to carry a lot of weight in any legislative changes that Congress might consider.
The Section 1201 study, in contrast, is considerably narrower in its scope. Section 1201 has been the subject of fewer high-profile litigations than 512, especially during the last few years. The way it was originally set up, Section 1201 forbids circumvention of technical measures designed to control access to creative works, yet it defines two sets of exceptions — types or situations of circumvention that aren’t forbidden. There are eight permanent exceptions for things like security testing, cryptography research, and activities of nonprofit libraries and archives.
There is also a set of temporary exceptions that the Copyright Office defines in rulemaking actions every three years; these exceptions expire and must be renewed through fresh evidence at each rulemaking. The rulemaking process solicits public input but has typically been dominated by public policy entities who know how to “work the system” and submit exception scenarios that fit the Copyright Office’s criteria based on past experience.
The temporary exception process was complicated recently by Congress’s passage of the Unlocking Consumer Choice and Wireless Competition Act of 2014, which effectively overrides Section 1201 to make it legal for people to “circumvent technical measures” by jailbreaking or rooting mobile phones. Meanwhile, the Copyright Office has complained that the triennial rulemaking process is very resource-intensive, and some have complained that the Office’s criteria for exception scenarios have changed over the six rulemakings that it has run since Section 1201’s enactment.
Thus the main thrust of the Section 1201 study is to revisit the exception process: to re-evaluate the permanent exceptions, and to see if there is a more efficient way of soliciting and deciding on exemptions over time that still minimizes the ever-present risk of technological obsolescence. The study notice assumes that the basic idea of Section 1201 — to forbid DRM hacking except where the hack fits one of the current exceptions — will stay as is. In addition, the Section 1201 study will revisit the prohibition on “trafficking” of circumvention tools in situations where people legitimately need to have third parties help them perform activities that include acceptable circumvention.
We will have a lot of discussion about these issues at Copyright and Technology NYC 2016 on January 19th. In addition to Jacqueline Charlesworth’s keynote, we will be featuring a presentation by Jennifer Urban of Berkeley Law School and Joe Karaganis of the American Assembly at Columbia University of their original research on the efficacy of Section 512 and the processes that copyright owners and service providers have evolved over time to deal with it. This research will undoubtedly serve as important input to the Copyright Office’s Section 512 study — and our conference will be its first public airing.
In addition, we will feature two afternoon sessions on Section 512 issues featuring expert panelists: From Takedown to Staydown and Pleasures of the Harbor: DMCA Safe Harbor Eligibility. So why not register and participate in these cutting-edge copyright discussions yourself?
Bill, I wanted to let you and your readers know there is a Staydown petition that was introduced last fall: http://www.takedownstaydown.org