Yesterday, the U.S. Copyright Office released a report evaluating the impact and effectiveness of the “safe harbor” provisions contained in Section 512 of the Digital Millennium Copyright Act. The report recommends “rebalancing” the “safe harbor” protection — jeopardizing one of the most important safeguards for the Open Internet without taking due account of ways the current system has been abused.
Section 512 of the DMCA shields both online content and internet service providers, along with any other online service or digital platform, from secondary liability for copyright infringement committed by users. Under Section 512, rightsholders can’t hold these services directly liable for any potentially infringing activities of their users. Public Knowledge contends that the Copyright Office’s suggested changes would force digital platforms like Facebook and Google to exercise more control over content uploaded to them by users, risking both the online creative ecosystem and free speech.
The following can be attributed to Meredith Rose, Policy Counsel at Public Knowledge:
“Section 512 is a measured solution to an intractable problem — namely, how to balance the rights of copyright holders against the basic functionality of platforms and broadband providers, while simultaneously promoting the free expression rights of users. Framing this as a zero-sum game between artists and tech is both dangerous and false; it erases the voices of millions of users who rely on broadband providers and platforms for reasons other than consuming ‘content.’ Ignoring the risks of these proposals to users is nothing less than writing off the ability of millions to participate in modern society.
“There are many things that the 512 Report did not do — contrary to some industry statements — for which we are grateful. The report did not call for site-blocking or notice-and-staydown, two proposals which would have seriously curtailed the ability of users to communicate freely online.
“That does not, however, change the fact that the Copyright Office’s recommendations (and framing) are ill-considered. In a contentious debate, it comes down on the same side (copyright holders) in nearly every instance, and disregards ample evidence that the DMCA is often abused by people looking to censor content they have no rights over. Just last week, the Wall Street Journal reported how widespread DMCA abuse is used to censor news stories. Any examination of how the current system is and is not working must take these factors into account, and avoid proposals that could make them worse.
“Astonishingly, the Copyright Office buys into the idea that users should be subject to being cut off from internet access entirely on the basis of allegations of copyright infringement. Congress should not be making it easier for private actors to completely and unilaterally remove a person’s ability to access the internet, something which the Supreme Court has recognized is a prerequisite for even minimal participation in modern life. Moreover, internet service providers should not be charged with monitoring what users do online. This is doubly true in the current pandemic, when literally every facet of our lives — from school and work to food and utilities — are managed online.
“The internet is not just a giant copyrighted-content delivery mechanism; it is the fundamental backbone of modern life. Perhaps that was marginally less true when the Office began writing this report back in 2015. However, it’s disappointing that even after five years, two presidential administrations, and three Registers of Copyright, the Copyright Office still doesn’t seem to have accepted that fact. We look forward to working with them and other stakeholders moving forward to ensure that Congress doesn’t make a similar mistake.”
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