The Copyright Office’s new system for registering designated agents for the service of take-down notices when it is believed that user-generated content infringes on intellectual property rights has now gone live. The Copyright Office issued a reminder, here, that all new registrations of agents for the service of these take-down notices must now be submitted in this new electronic system. We wrote more here about the new system and the new requirements for registration, including the requirement that all who are already registered on the old paper forms must re-register in the new system by December 31, 2017. This is important for all media companies who allow third-party users to post content on their sites – whether that content is written articles, photos, videos, music or any other material that could infringe on anyone’s rights under the Copyright Act. Registration is a pre-requisite of getting “safe-harbor” protection for companies who host such third-party content under Section 512 of the Digital Millennium Copyright Act. We discussed this issue in my seminar yesterday on legal issues for broadcasters in digital and social media, the slides from which will be posted shortly.
On Section 512, the safe harbor for those who host user-generated content, the Copyright Office last month issued a Request for Additional Comments in its study of the safe harbor. The safe harbor provides that, if an Internet service provider follows certain rules including the registration of an agent for take-down notices, and some unrelated party uses the service and posts or transmits unauthorized copyrighted material, the service has no liability. Exactly what requirements the service needs to observe depends on the type of the service. ISPs, who provide a mere conduit for material transmitted by others have one set of rules, while companies (including most media companies) that allow content to be posted on their sites to be viewed by the public, have another set of rules that place more obligations on these companies, including avoiding any steps to encourage the posting of infringing content, taking down infringing content of which they have actual notice or for which they have been received an uncontested take-down notice, and otherwise not affirmatively profiting from such infringing content. As part of its role of advising Congress on copyright issues, the Copyright Office began a study of the Section 512 exemption a year ago, which we wrote about here. Congress has also held hearings on the matter, and may well try to tackle it in its reform of the Copyright Act that is supposed to be in the works after the new Congress convenes in 2017. Last month’s request for additional comments suggests just how difficult that the reform of this section will be.
The questions asked in the Request for Additional Comments really echo the initial request – covering the waterfront of issues raised in initial comments in the proceeding. The request for comments asks whether there should be different rules for different types of services. For instance, a huge service like YouTube can likely afford more technological responses to take down notices (including adopting systems to make sure that infringing content, once removed, stays removed) when it has built a large business based on user-generated content, while a newspaper or broadcaster, who may have lesser resources and only occasionally allow for the posting of third-party content, may not be able to afford such solutions. The question of whether technology offers solutions to infringement issues is also raised. Even questions of whether there are abusive take-down notices that raise infringement issues when really none exist (and whether the notices should be required to assess fair use defenses that might be available in connection with the allegedly infringing content), is posed for further comment. The Copyright Office wants further comments on numerous factual issues, and also on the legal precedents that have arisen since the initial comments a year ago. Comments are to be filed by February 6, 2017, and any empirical research assessing these issues should be submitted by March 8, 2017.
These are difficult questions that come up in all sorts of contexts (see for instance our articles here and here). The Copyright Office merely studies these matters, and makes recommendations to Congress, who must actually craft any changes in the rules that apply to these services. Given the number of huge businesses – including all of the social media platforms that have grown based on the ability of users to post content on sites insulated from liability for the content that these users post – and the incredible effects on society and commerce that these social media platforms have in today’s world, Congress is sure to tread carefully as they consider changes to Section 512 in the next Congress.