After several years of public consultations and stakeholder meetings, the US Copyright Office issued its review of the DMCA’s safe harbor provisions.
The report doesn’t propose any major overhauls of the DMCA. Instead, it aims to fine-tune some parts, to better balance the interests of copyright holders and online service providers (OSPs).
More drastic suggestions were put on the backburner. Those include pirate site blocking and a ‘takedown and staydown’ requirement for online services, which would require mandatory upload filtering.
Not Everyone Is Happy with the Report
The Copyright Office’s attempt to create more balance is well-intended but not everyone is pleased with it. For example, a statement released by several prominent music industry groups, including the RIAA, shows that they wanted and expected more.
The music groups provide a list of things big technology platforms could do to address the concerns raised in the report. However, their first suggestion is to ensure that ‘takedown’ means ‘staydown.’ That’s one of the things the Copyright Office explicitly did not recommend, as there may be a negative impact.
On the other side, there was a lot of critique of the apparent disregard for a key party in the DMCA debate, the public at large. The Copyright Office frames DMCA issues as a ‘copyright holders’ vs. ‘online service provider’ debate, but the voice of the public is glanced over at times.
Looking at the suggestions in the report, however, it’s clear the public will be heavily impacted by the proposed changes. This is also a problem signaled by some digital rights groups.
Disconnecting Alleged Copyright Infringers
According to Public Knowledge, the Copyright Office’s recommendations are ill-considered. The digital rights group believes that the report heavily favors copyright holders while totally overlooking the interests of millions of regular Internet users.
The proposals don’t only harm the general public, they also fail to recognize copyright abuses, including false DMCA notices, the group adds.
“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,” the group notes.
Public Knowlege takes offense to the Office’s comments regarding repeat infringers. These stress that people’s Internet access be disconnected based on allegations of copyright infringements by copyright holders.
“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,” Public Knowledge writes.
The DMCA text is currently not clear on whether allegations are good enough, but the Office’s recommendation is backed by an Appeals Court order. Nonetheless, Public Knowledge doesn’t believe it should be law.
“Congress should not be making it easier for private actors to completely and unilaterally remove a person’s ability to access the internet,” the group writes. “The internet is not just a giant copyrighted-content delivery mechanism; it is the fundamental backbone of modern life.”
Public Knowledge is not alone in its criticism. The Electronic Frontier Foundation (EFF) also stresses that the interests of the public are largely ignored, tilting the “balance” towards copyright holders.
“For example, the proposal to terminate someone’s Internet access—at any time, but especially now—is a hugely disproportionate response to unproven allegations of copyright infringement,” EFF wrote on Twitter.
Copyright Office Cherry-Picking?
It’s worth noting that court decisions are not always leading to the Copyright Office. The Appeals Court previously ruled that a repeat infringer policy doesn’t have to be written down, for example, but the Office now suggests updating the DMCA to change this.
Requiring a written repeat infringer policy, contrary to the Appeal Court ruling, would favor copyright holders. The same is true for confirming the other Appeal Court ruling, which concluded that ISPs must deal with repeat infringers based on allegations alone.
This doesn’t mean that the Office is always taking one side, however. As mentioned earlier, the report also denied the top demands from copyright holders by not recommending site blocking and ‘takedown – staydown’ policies.
By highlighting these positions from two opposing sides of the debate, it is clear that the Copyright Office report includes positive and negative elements for all stakeholders. While it attempts to create more balance, disagreement remains.
This has also been the general theme of the DMCA revision debate over the past several years. The demands from one side usually hurt the other, and vice versa. It took a long time before the Office finalized its views and given what’s at stake, pushing any changes through Congress is not going to be easy.