Copyright Office Releases Report on Section 512
Issue No. 824 - May 21, 2020
The U.S. Copyright Office today released its Report, Section 512 of Title 17, a multi-year study of section 512 of the U.S. Copyright Act, which is part of the Digital Millennium Copyright Act (DMCA). When it enacted section 512 in 1998, Congress designed its safe harbors to provide “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the online networked environment.” The Report examines whether the balance that Congress sought has been achieved, particularly in light of the enormous changes that the internet has undergone in the last twenty-plus years. The Report, the last in a series of studies requested in a prior congressional session, represents the final output of the Office on topics related to the 2013-2015 copyright review hearings held by the House Judiciary Committee.
The Copyright Office concludes that the operation of the section 512 safe harbor system today is unbalanced. In its examination of the balance established by Congress, the Office outlines five principles that guided its review, identifies its findings, and makes several recommendations for Congress to consider. The Report highlights areas where current implementation of section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbors; repeat infringer policies; knowledge requirement standards; specificity within takedown notices; non-standard notice requirements; subpoenas; and injunctions. While the Office is not recommending any wholesale changes to section 512, the Report points out these and other areas where Congress may wish to consider legislation to rebuild the original balance between rightsholders and online service providers.
The Report also identifies non-statutory areas of untapped potential to increase the efficacy of section 512 and recommends additional stakeholder and government focus in the areas of education, voluntary cooperation, and the use of standard technical measures. Finally, it provides background information on several proposals submitted by Study participants on approaches that go beyond the original construct of the DMCA, but does not provide a recommendation with respect to those proposals. The Office believes additional study and consultation would be needed before moving forward with such proposals.
The full report, along with the extensive public comments, empirical studies, and roundtable transcripts, is available on the Copyright Office’s website at copyright.gov/policy/section512/.