U.S. Copyright Office Undecided About Future of DMCA Takedowns

The U.S. Government's Copyright Office has launched a new consultation seeking guidance on the future of the DMCA's takedown process and safe harbor. Through a set of concrete questions, they hope to find a balance between the interests of copyright holders, Internet services and the public at large.

us-united-america-flagThe past week has been quite a tumulteous one for U.S. politics. However, that doesn’t mean that the wheels hve stopped turning.

On the day that millions of Americans cast their vote, the Copyright Office posted a new notice in the Federal Register, asking the public for input on future copyright law.

Over the past year, the Government already received a lot of input on a possible reform of the DMCA safe harbor provisions. Various rightsholders weighed in, as expected, and so did technology companies, law scholars and civil rights groups.

The problem for the U.S. Copyright Office is that there’s little agreement on how to move forward.

The MPAA, RIAA, and other industry groups are calling for extensive revisions and don’t want services to “hide” behind their safe harbor protections. Among other things, they want a ‘notice-and-stay-down‘ policy to ensure that, once deleted, content doesn’t pop up elsewhere.

Many service providers, however, see this an unworkable solution and believe that the current system is capable of dealing with infringing content.

On the other end of the spectrum there are calls to implement penalties for abusive notices, so copyright holders can be punished for submitting takedown requests that are false.

The Copyright Office has reviewed the various positions, but it is still unclear on how to move forward. It has therefore posed a set of questions seeking additional guidance on various key topics.

For the notice-and-stay-down issue, for example, it wants a clear overview of how that would be organized, as well as the benefits and challenges it brings.

“Several study participants have proposed some version of a notice-and-stay-down system. Is such a system advisable? Please describe in specific detail how such a system should operate, and include potential legislative language, if appropriate,” the notice reads.

“If it is not advisable, what particular problems would such a system impose? Are there ways to mitigate or avoid those problems? What implications, if any, would such as system have for future online innovation and content creation?”

Another question deals with the difference in opinions about the effectiveness of the DMCA safe harbor system.

“How should the divergence in views be considered by policy makers? Is there a neutral way to measure how effective the DMCA safe harbor regime has been in achieving Congress’ twin goals of supporting the growth of the Internet while addressing the problem of online piracy?”

In total, the Copyright Office has listed sixteen questions. These also cover the “repeat infringer” issue for ISPs, which Cox took to the appeal court earlier this week.

While the previous consultations and hearings have already resulted in a lot of input, the new questions force stakeholders to offer something more concrete. No general overviews but pointed answers.

To help to determine the effectiveness of the current system, the Copyright Office also welcomes additional data and studies. Several parties are reportedly conducting empirical research which may help to make an informed decision.

The deadline for the submissions is March 8, after which the Copyright Office will try to reach its conclusions. The Copyright Office’s full Federal Register notice is available here (pdf).

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