The Internet provides a rapid and widespread network for communicating information. This information may include copyrighted works being copied and distributed without authorisation. The Digital Millennium Copyright Act 1998 provides a system for copyright owners and online entities to address online copyright infringements. Congress created the system to address the challenge that the Internet has made it possible for information, including copyrighted works, to be quickly copied and distributed to others. The system includes incentives for copyright owners and online service providers to cooperate in detecting and resolving copyright infringements and to provide greater certainty in exposures to copyright liability. For service providers, the incentive provides limitations on copyright liability – a 'safe harbour' if the service provider meets the requirements for expeditiously addressing a notice of online copyright infringement.

Recent research cited by the US Copyright Office indicates a doubling of infringing material accessed via the Internet from 2010 to 2012, while Internet users daily post hundreds of millions of photos, videos and other works, and service providers have received more than 1 million notices of alleged infringement under 17 USC 512. These challenges, and others related to the operation of copyright takedown notices, pose policy issues that warrant study and analysis.

The Copyright Office is now seeking information on:

  • the impact and effectiveness of the Digital Millennium Copyright Act's safe harbour provisions;
  • the costs and burdens of the notice-and-takedown process on large and small-scale copyright owners, online service providers and the general public; and
  • how successfully the notice system addresses online infringement and protects against improper takedown notices.

The Notice of Inquiry was published in the Federal Register on December 31 2015. The Copyright Office is inviting comments on seven issues:

  • the general effectiveness of safe harbours;
  • the notice-and-takedown process;
  • counter-notifications;
  • legal standards;
  • repeat infringers;
  • standard technical measures for safe harbour benefits; and
  • remedies. 

The specific questions are included in the notice.

There are four distinct safe harbours for service providers engaging in:

  • conduit for automatic online transmission of material directed by third parties;
  • caching material temporarily while transmitting material automatically;
  • storing or hosting material at the direction of a user; and
  • referring or linking users to online sites using information locating tools. 

A service provider that meets the requirements of the safe harbour is not liable for monetary damages, but may be subject to injunctive relief. 

Two requirements apply to each safe harbour: a reasonable policy to terminate "repeat infringers" and accommodation of "standard technical measures" that identify copyrighted works. Safe harbours under Sections 512(b), (c) and (d) further require expeditious response to takedown notices for removing or disabling access to material claimed to be infringing. The safe harbour for user-posted content under Section 512(c) requires a designated agent receive the notices and contact information for the agent posted publicly. Protection under Sections 512(c) and (d) also requires the service provider to act when having "actual knowledge" of infringement, or an awareness of such. Finally, the service provider must not receive a financial benefit directly attributable to the infringing activity in a case where the service provider has the right and ability to control such activity.

A takedown notice by a complaining party also must meet specific requirements: 

  • an authorised signature for the notice and contact information;
  • identification of the copyrighted work;
  • identification and location of the allegedly infringing work or activity;
  • a good-faith statement that the use of the work is unauthorised; and
  • a statement that the information is accurate and, under penalty of perjury, the complaining party is authorised to act on behalf of the copyright owner.

The Copyright Office poses 30 questions on safe harbour practices and invites comments by members of the public. Written comments must be received no later than 11:59pm eastern time on March 21 2016. Specific instructions for submitting comments will be posted on the Copyright Office website on or before February 1 2016. Further, the office will announce one or more public meetings to take place after the initial written comments are received by separate notice in the future.

Carl M Davis II

This article first appeared in IAM. For further information please visit www.iam-media.com.