Issue Section:
 Editorial
On 21 May 2020, the US Copyright Office published its long-awaited report on the US Digital Millennium Copyright Act (DMCA) section 512 copyright safe harbours.1 The report is the final instalment of a series of studies by the Copyright Office which evaluate the need to update the US Copyright law for the 21st century.
As such, this report (amounting to over 250 pages with Annexes) covering the history and application of the section 512 online copyright safe harbours is required reading for everyone interested in copyright law or policy.
The fundamental conclusion of the report is that the critical balance sought by the US Congress when adopting the DMCA in 1998, has been lost. The report notes that the Congress crafted the section 512 safe harbours so as,
(1) to enable copyright owners to effectively address the infringement of their works online and (2) to facilitate the development of internet-based platforms by clarifying the obligations and limiting the liability of OSPs with respect to infringement committed by third-party users of their systems.
The safe harbours subsequently created by the Congress were intended to incentivize and foster cooperation between right owners and online service providers to achieve these twin goals.
The report finds that this is no longer the case. Instead, the DMCA safe harbour provisions have placed an increasing burden on rightholders while providing enhanced protections to online services “in circumstances beyond those originally anticipated by the Congress”. So, while section 512 has been successful in driving the development and growth of online services, it has left rightholders without sufficiently effective means to protect their rights.
The report seems to put this down to two main factors: online services have developed beyond what the legislators could have foreseen at the time of the adoption of the DMCA, and the courts have not managed to strike the right balance in this changing environment between the twin goals that Congress intended to guarantee.
Broadly speaking, the report finds that in most of the specific areas examined, courts have tended to interpret the section 512 safe harbour provisions in a manner that favours the online services.
For instance, the Office “is unconvinced” that the Congress had intended to extend the hosting service provider safe harbour to online services that go beyond mere storage of content and provide services that are “related” to storage, as the appeals court (2nd Circuit) held in Viacom v YouTube.2 Similarly, the Office considers that the requirement that a service provider must not receive a financial benefit directly attributable to the infringing activity has been interpreted too narrowly. The appropriate test, according to the Office, should be whether infringing material on the site is one of the “primary draws for users, and whether the plaintiff’s works were infringed by being performed or distributed through the site”.
Further, the Office also finds that by requiring the hosting service provider to have knowledge of specific infringements before they have to remove infringing content, courts have set the threshold for constructive (or ‘red flag’) knowledge3 so high that, against the original intention of the Congress, the provision no longer makes a meaningful distinction between actual and constructive knowledge.
The report goes on to make a series of legislative recommendations to the Congress so as to balance the rights and responsibilities of online services and right holders, but it stays within the parameters of the existing section 512, focusing on the shortcomings identified by the Copyright Office. Therefore, the Copyright Office is not recommending, for instance, the much-needed introduction of ‘website blocking’ injunctions against online intermediaries. Instead, the Office considers that further study is needed on that topic.
The report also includes proposals for specific actions by the Copyright Office to prepare educational materials and to promote voluntary cooperation to address infringements, including with respect to “standard technical measures” (measures to identify or protect copyrighted works, with which online services may not interfere under the DMCA).
All in all, the Copyright Office report is not only a study on the US copyright safe harbours, it is an important contribution to the general debate on how the online safe harbour laws should be reviewed to restore fair balance in the relationship between online services and content creators. As such, the report is likely, directly or indirectly, to impact legislative processes and policy discussions at several levels and fora, both in and outside the US.
In the US, the Congress is organizing hearings on the topic and legislative action may follow. It should be difficult for the Congress to remain passive when faced with the clear conclusion of the report – the balance originally sought by the Congress has been lost. Further, unless and until the shortcomings identified by the Copyright Office are addressed, the DMCA section 512 cannot credibly be referred to as a model for fair and balanced safe harbour laws. This applies both in the context of Free Trade Agreement negotiations (including those on-going with the UK), as well as at national level when governments look to introduce or review existing safe harbour provisions. Finally, the report’s findings support the European legislators’ actions to clarify and rebalance online services’ privileges and responsibilities; both within the targeted scope of Article 17 of the Digital Single Market Copyright Directive (2019/790), and more generally within the forthcoming Digital Services Act.

Footnotes

1
The report is available at <https://www.copyright.gov/policy/section512/> (last accessed 15 June 2020).
2
Viacom Int'l, Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).
3
Section 512(c), which introduced the safe harbour for hosting service providers, conditions the enjoyment of the safe harbour on services removing infringing content from their systems after having either gained actual knowledge or becoming aware of “facts or circumstances from which infringing activity is apparent”. The Office also notes that a notice from a right holder is not a prerequisite for actual or ‘red flag’ knowledge.
© The Author(s) 2020. Published by Oxford University Press. All rights reserved.