Both the popular and media trade press has been full of reports in the last few weeks about musicians and other artists petitioning the Copyright Office to hold YouTube and other online services liable for infringement when the artists’ copyrighted material appears on the service (see, e.g. the articles here and here). The complaints allege that these services are slow to pull infringing content and, even when that content is pulled from a website, it reappears soon thereafter, being re-posted to those services once again. While the news reports all cite the filings of various artists or artist groups, or copyright holders like the record labels, they don’t usually note the context in which these comments were filed – a review by the Copyright Office of Section 512 of the Copyright Act which protects internet service providers from copyright liability for the actions taken by users of their services (see the Notice of Inquiry launching the review here). All of these “petitions” mentioned in the press were just comments filed in the Copyright Office proceeding, where comments were due the week before last. The Copyright Office will also be holding two roundtable discussions of the issues raised by this proceeding next month, one in California and one in New York City (see the notice announcing these roundtables here). What is at issue in this inquiry?
Section 512 was adopted to protect differing types of internet service providers from copyright liability for material that uses their services. Section 512(a) protects ISPs from liability for material that passes through their systems. That section does not seem to be particularly controversial, as no one seems to question the insulation from liability of the provider of the “pipes” through which content passes – essentially a common carrier-like function of just providing the infrastructure through which messages are conveyed. Sheltered from liability by Section 512(b) are providers of systems caching – temporary storage of material sent by third-parties on a computer system maintained by a service provider, where the provider essentially provides cloud storage to third-parties using some automated system where the provider never reviews the content. That section also does not seem particularly controversial. Where the issues really seem to arise is in the safe harbor provided in Section 512(c) which is titled “Information residing on systems or networks at the direction of users” – what is commonly called “user-generated content.”
This safe harbor from liability for user-generated content was adopted in the Digital Millennium Copyright Act of 1998, and was at that was principally targeted at “bulletin board services” where users would post messages that could conceivably violate copyrights of others. The law sheltered those who hosted these online forums from liability if those using the services post material that violates the copyrights of others. This provision extended the protections offered to such services from other legal liability (in areas like defamation) by the Communications Decency Act (see our article here). The CDA had insulated service providers from pretty much all other legal liability for user-generated content except for rights under the Copyright Act, and the DMCA provisions extended the insulation to copyright liability. But certain obligations were imposed on service providers before they could qualify for that “safe harbor” from liability for user-generated content.
In order to be sheltered, the provider had to have no actual knowledge of the posting of infringing material. It also had to take down infringing material when notified that such materials were posted on its site (and set out specific rules and procedures for such notifications). Finally, the provider could not directly receive a financial benefit from the positing of the material. The provider also had to make information available on its site as to who copyright holders should contact with their “take-down” notices (notices asking that infringing content be removed from the site). A specific contact for take-down notices also needed to be registered at the Copyright Office (see our article here from several years ago, when the Copyright Office proposed to update their registration system).
This system has been credited with allowing some of the biggest names in digital media to exist – leading to the prominent role that this country’s Internet giants play on the world media stage. YouTube, Facebook, Instagram, Twitter and similar services all rely on the safe harbor in allowing their users to post material online, theoretically without fear of liability from content owners whose works some of the users of the services may appropriate in some of their posts. While at the same time as it allows these online giants to thrive, the safe harbor has also allowed other smaller services to operate online without fear of the potential of massive copyright liability – everything from the local newspaper or TV station asking that users post pictures of 4th of July activities or videos of their kids playing outside on a snow day without fear that the paper or station faces liability if that fireworks shot was not really the user’s own work, or if that snow day picture featured background music for which no rights had been obtained.
While services see the safe harbor provisions as essential to their very existence and their growth, and filed comments in the Copyright Office proceeding to reflect that fact (the comments can all be found on the Copyright Office website here), many copyright holders feel that the law can too easily be abused, with services turning a blind eye to infringing content posted on their sites (the Courts having generally held that services do not need to go looking for infringing content, but need specific knowledge that specific infringing content has been posted in order to be held liable). Copyright holders allege that they have to play “whack-a-mole,” repeatedly going back to the same service to have content removed, as once the service removes a copyrighted work posted by one user, it often is almost immediately reposted by someone else on that same service. With sites hosting millions of videos or other works, copyright holders claim that it is impossible to police the Internet under the current regulatory regime. Comments from many artist groups, and copyright holders of copyrighted works (e.g. record and movie companies), were submitted in the Copyright Office proceeding asking that the rules be changed.
What are some of the specific changes that are being discussed and what other questions are being asked in this inquiry? The Copyright Office asked a series of questions – asking for perspective from the various interested parties as to how the current system is working. The inquiry asks whether it is possible for services to adopt systems that can identify infringing content, and whether the services should be forced to adopt a “take down, stay down” system where once infringing content is identified, the service should somehow be forced to go through all of its content to determine whether the material that it has just taken down has popped up someplace else. The Copyright Office is obviously interested in the feasibility of such practices and the cost to implement. One of the issues identified about such systems is that each post may use a copyrighted work in a different way – so that a work that is an infringement when used in one YouTube video may constitute “fair use” in another – or it may even be an authorized work posted by the artist or copyright holder. Automated systems may not allow for such distinctions to be made, and the rights of users could thus be infringed were a system made too strict (and, indeed, an online campaign resulted in thousands of electronic comments from users arguing against any change in the rules).
These are obviously very contentious subjects already debated vigorously in the comments, and likely to be explored in depth at the Roundtables to be held by the Copyright Office. As we have written before (here and here), the Copyright Office itself does not have the ability to change this statutory regime. Instead, its study will simply inform the actions of Congress in its continuing review of possible changes to the Copyright Act – a review that has been ongoing for quite some time (see our article here from a discussion two years ago about including music law reform in this review). Copyright reform is usually only accomplished when the principal parties involved essentially agree on how to reform the law. Already, there are voluntary efforts made to accomplish some of what the copyright holders are requesting so perhaps these efforts can form the basis for future compromise. But all media companies that allow users to post content on their websites need to carefully watch how this proceeding plays out.