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More than two decades after Congress sought to strike a balance between the interests of creators and service providers with the Digital Millennium Copyright Act (DMCA), it is clear that Section 512 of the Copyright Act has failed to create the right incentives to curb online copyright infringement. Indeed, as a May report from the U.S. Copyright Office concluded, the “original intended balance has been tilted askew.”

As laid out in the DMCA, Section 512’s goal was to “preserve strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements” while simultaneously providing “greater certainty to service providers concerning their legal exposure for infringements.” While the law has certainly accomplished the latter, it has been at the expense of the former.

The good news is that Congress has taken notice. Sens. Thom Tillis (R-N.C.) and Chris Coons (D-Del.)—the chair and ranking member, respectively, of the Senate Judiciary Subcommittee on Intellectual Property—have held a series of hearings on potential reforms to the Copyright Act, with another scheduled for Dec. 15. Tillis also recently solicited feedback to guide a discussion draft of reform legislation he intends to make public shortly after the hearing. (Our answers to Tillis’ questionnaire can be found here.) 

The problem

Back in 1998, there were reasons for lawmakers to believe Section 512 would help Internet users, copyright holders and online service providers (OSPs) alike. Holding OSPs culpable for any misuse of copyrighted material in the vast amount of user-generated content they carry would create unreasonable litigation risk and hinder development of online distribution services. That would be bad for Internet users, for copyright holders who benefit from the lawful dissemination of their content and for the OSPs themselves. In that sense, providing OSPs limited liability protection for collaborating to curb piracy was seen as a way to create a healthier online ecosystem to everyone’s advantage.

But as Section 512 has been applied by the courts, OSPs need do little more than respond to takedown notices from copyright holders. At that point, the copyrighted content has already been unlawfully disseminated and damage has already been done. Moreover, in the interim, service providers can continue to monetize the infringing content through ad placement or other mechanisms. In essence, Section 512 has in practice given OSPs an economic incentive to do as little as possible to prevent infringement for as long as possible so that they can avoid costs and continue to generate revenue. That is antithetical to the copyright system, which is supposed to give copyright holders the ability to determine how their content is disseminated and to negotiate compensation.

Such concerns are compounded by the fact that a single unauthorized version of a copyrighted work on one Internet site may quickly be replicated into hundreds of versions at hundreds of sites across the globe. Copyright holders must scour the entire Internet for unauthorized versions of their content in a constant state of notice-sending, only to have the content continue to pop up. That is a costly and time-consuming burden for any copyright holder. The burden is even greater for independent creators who do not have their own content-protection departments. The hours and days they lose policing the Internet for their copyrighted material is time they could be spending on their craft.

Potential solutions

Proper safe harbors should encourage OSPs to help prevent copyrighted content from being improperly disseminated. Ideally, such rules could also encourage OSPs to license content. That would enable them and their users to benefit from the content without litigation risk, but while respecting copyright holders’ rights. One of the benefits of intermediaries is that they can more efficiently negotiate such agreements with copyright holders than the copyright holders could with each of the service providers’ many users.

But the near-complete absence of intermediary liability means OSPs have little incentive to curb piracy or license content. As a condition of receiving safe harbor protection, OSPs should be required to take reasonable steps: 1) to prevent infringement and 2) to stop, upon notice, infringement that has already occurred. Such steps would include:

  • Authentication of Identities. Ensuring online service providers know their users’ true identities would discourage those users from engaging in piracy, while also making it harder for users to simply change account names once caught. It would also help copyright holders to seek redress, including in cases where all they want is to ask users to cease unintentional infringement. Identities could generally remain confidential, disclosed to third parties only when needed to resolve a case of infringement.
  • Education Measures. Unintentional infringement might be avoided if OSPs briefly explained to users the principles of copyright and fair use and asked whether they were transmitting content that contained someone else’s copyrighted work. Such explanations and inquiries should be provided at the point a user seeks to disseminate content. Links could be included pointing to more detailed information on the Copyright Office’s site.
  • Revisions to the Knowledge Standard. According to the text of Section 512, to be protected by the safe harbors, OSPs must not have either “actual knowledge” of infringement or be “aware of facts or circumstances from which infringing activity is apparent.” This awareness of facts or circumstances is often referred to as “red flag” knowledge. But courts have all but read this standard out of the statute. The statute should be revised to make clear that OSPs are required to act when infringement is apparent, even if they have not been alerted to a specific instance of infringement by a copyright holder.
  • Preservation of Rights Management Information. Digital works often have embedded data indicating who the copyright holders are and how the content may be used. OSPs should be held culpable if they negligently, recklessly or knowingly remove that data. Copyright holders should not be required, as is the case today, to demonstrate that the online service provider acted with an intent to facilitate infringement. The lack of accurate rights-management information makes it harder for copyright holders to enforce their rights, as well as for individuals willing to license content to determine who to approach to do so. OSPs should thus have an obligation to ensure that rights-management information included by a copyright holder remains intact, especially since OSPs often monetize that content through advertising or other means.
  • Filtering and Staydown: Allowing all copyright holders to provide “fingerprints” of their content would enable OSPs to prevent copyrighted content from being unlawfully uploaded or otherwise disseminated. It could also help ensure that any copyrighted content that slips through and is subsequently taken down manages to stay down. Preventing unauthorized dissemination through filtering could also reduce the number of takedown notices copyright holders would need to send and OSPs would need to process—saving everyone time, hassle and money. Filtering technologies, such as Google’s Content ID, already exist, although Google does not make it available to all copyright holders. The EU has recently adopted filtering requirements. A U.S. filtering requirement would help to foster a market for the creation of additional filtering solutions.
  • Adoption of Standard Technical Measures. Section 512(i) requires OSPs to accommodate standard technical measures for preventing piracy that have been developed through a voluntary, consensus process. The immunity from liability that the safe harbors provide, however, reduces OSPs’ incentive to collaborate to develop standard technical measures. The Copyright Office should be authorized to certify certain solutions as standard technical measures, and even to commission the creation of additional ones. This would help foster a market for such measures.
  • Improving the Takedown Process. The statute allows copyright holders to provide representative lists in their notices for takedown, rather than require them to itemize every URL for takedown. Yet OSPs often impose technicalities before they will act on a representative list. The Copyright Office should be authorized to create model forms deemed to provide adequate notice, as well as to specify what kind of information is both necessary and sufficient to require takedown.
  • Effective Repeat Infringer Policies. The statute already requires OSPs to have policies to terminate service to repeat infringers, and to reasonably implement those policies. Courts have historically interpreted those requirements rather laxly. The Copyright Office should be authorized to create a model repeat-infringer policy deemed to comply with the requirement.

In addition to creating baseline requirements such as the ones listed above, the Copyright Act should be revised to provide additional tools to resolve disputes. Creating a small claims process, as provided in the CASE Act, could alleviate the burdens of litigation for smaller copyright holders, smaller OSPs and individual users. Also, courts ordinarily have authority to issue no-fault injunctions to third parties when doing so is necessary to effectuate their rulings. In the copyright context, even when U.S. courts have ruled that websites have willfully engaged in infringement, ceasing the infringement can be difficult, especially when the parties and their facilities are located outside the United States. Courts should be clearly authorized to issue no-fault injunctions requiring OSPs to block access to sites that the courts have ruled are willfully engaged in mass infringement. Such orders are already available to courts in many other countries and have not, as some hyperbolically predict, “broken the Internet.”

Revising the Copyright Act as described above would encourage OSPs both to prevent the initial infringement and to more effectively curtail continued infringement that has slipped through. OSPs could decline to implement these content-protection requirements, but they would lose the safe harbors and be subject to the ordinary standards of copyright liability. OSPs also might more widely choose to license copyrighted works that are likely to appear on their platforms. That would benefit copyright holders and Internet consumers alike. The providers themselves might even find it leads to increased use of their service—as well as increased profits.

R Street’s Sasha Moss recently posted a piece on TechDirt describing the alleged shortcomings of the Register of Copyrights Selection and Accountability Act of 2017 (RCSAA) — proposed legislative adjustments to the Copyright Office, recently passed in the House and introduced in the Senate last month (with identical language).

Many of the article’s points are well taken. Nevertheless, they don’t support the article’s call for the Senate to “jettison [the bill] entirely,” nor the assertion that “[a]s currently written, the bill serves no purpose, and Congress shouldn’t waste its time on it.”

R Street’s main complaint with the legislation is that it doesn’t include other proposals in a House Judiciary Committee whitepaper on Copyright Office modernization. But condemning the RCSAA simply for failing to incorporate all conceivable Copyright Office improvements fails to adequately take account of the political realities confronting Congress — in other words, it lets the perfect be the enemy of the good. It also undermines R Street’s own stated preference for Copyright Office modernization effected through “targeted and immediately implementable solutions.”

Everyone — even R Street — acknowledges that we need to modernize the Copyright office. But none of the arguments in favor of a theoretical, “better” bill is undermined or impeded by passing this bill first. While there is certainly more that Congress can do on this front, the RCSAA is a sensible, targeted piece of legislation that begins to build the new foundation for a twenty-first century Copyright Office.

Process over politics

The proposed bill is simple: It would make the Register of Copyrights a nominated and confirmed position. For reasons almost forgotten over the last century and a half, the head of the Copyright Office is currently selected at the sole discretion of the Librarian of Congress. The Copyright Office was placed in the Library merely as a way to grow the Library’s collection with copies of copyrighted works.

More than 100 years later, most everyone acknowledges that the Copyright Office has lagged behind the times. And many think the problem lies with the Office’s placement within the Library, which is plagued with information technology and other problems, and has a distinctly different mission than the Copyright Office. The only real question is what to do about it.

Separating the the Copyright Office from the Library is a straightforward and seemingly apolitical step toward modernization. And yet, somewhat inexplicably, R Street claims that the bill

amounts largely to a partisan battle over who will have the power to select the next Register: [Current Librarian of Congress] Hayden, who was appointed by Barack Obama, or President Donald Trump.

But this is a pretty farfetched characterization.

First, the House passed the bill 378-48, with 145 Democrats joining 233 Republicans in support. That’s more than three-quarters of the Democratic caucus.

Moreover, legislation to make the Register a nominated and confirmed position has been under discussion for more than four years — long before either Dr. Hayden was nominated or anyone knew that Donald Trump (or any Republican at all, for that matter) would be president.

R Street also claims that the legislation

will make the register and the Copyright Office more politicized and vulnerable to capture by special interests, [and that] the nomination process could delay modernization efforts [because of Trump’s] confirmation backlog.

But precisely the opposite seems far more likely — as Sasha herself has previously recognized:

Clarifying the office’s lines of authority does have the benefit of making it more politically accountable…. The [House] bill takes a positive step forward in promoting accountability.

As far as I’m aware, no one claims that Dr. Hayden was “politicized” or that Librarians are vulnerable to capture because they are nominated and confirmed. And a Senate confirmation process will be more transparent than unilateral appointment by the Librarian, and will give the electorate a (nominal) voice in the Register’s selection. Surely unilateral selection of the Register by the Librarian is more susceptible to undue influence.

With respect to the modernization process, we should also not forget that the Copyright Office currently has an Acting Register in Karyn Temple Claggett, who is perfectly capable of moving the modernization process forward. And any limits on her ability to do so would arise from the very tenuousness of her position that the RCSAA is intended to address.

Modernizing the Copyright Office one piece at a time

It’s certainly true, as the article notes, that the legislation doesn’t include a number of other sensible proposals for Copyright Office modernization. In particular, it points to ideas like forming a stakeholder advisory board, creating new chief economist and technologist positions, upgrading the Office’s information technology systems, and creating a small claims court.

To be sure, these could be beneficial reforms, as ICLE (and many others) have noted. But I would take some advice from R Street’s own “pragmatic approach” to promoting efficient government “with the full realization that progress on the ground tends to be made one inch at a time.”

R Street acknowledges that the legislation’s authors have indicated that this is but a beginning step and that they plan to tackle the other issues in due course. At a time when passage of any legislation on any topic is a challenge, it seems appropriate to defer to those in Congress who affirmatively want more modernization about how big a bill to start with.

In any event, it seems perfectly sensible to address the Register selection process before tackling the other issues, which may require more detailed discussions of policy and cost. And with the Copyright Office currently lacking a permanent Register and discussions underway about finding a new one, addressing any changes Congress deems necessary in the selection process seems like the most pressing issue, if they are to be resolved prior to the next pick being made.

Further, because the Register would presumably be deeply involved in the selection and operation of any new advisory board, chief economist and technologist, IT system, or small claims process, Congress can also be forgiven for wanting to address the Register issue first. Moreover, a Register who can be summarily dismissed by the Librarian likely doesn’t have the needed autonomy to fully and effectively implement the other proposals from the whitepaper. Why build a house on a shaky foundation when you can fix the foundation first?

Process over substance

All of which leaves the question why R Street opposes a bill that was passed by a bipartisan supermajority in the House; that effects precisely the kind of targeted, incremental reform that R Street promotes; and that implements a specific reform that R Street favors.

The legislation has widespread support beyond Congress, although the TechDirt piece gives this support short shrift. Instead, it notes that “some” in the content industry support the legislation, but lists only the Motion Picture Association of America. There is a subtle undercurrent of the typical substantive copyright debate, in which “enlightened” thinking on copyright is set against the presumptively malicious overreach of the movie studios. But the piece neglects to mention the support of more than 70 large and small content creators, technology companies, labor unions, and free market and civil rights groups, among others.

Sensible process reforms should be implementable without the rancor that plagues most substantive copyright debates. But it’s difficult to escape. Copyright minimalists are skeptical of an effectual Copyright Office if it is more likely to promote policies that reinforce robust copyright, even if they support sensible process reforms and more-accountable government in the abstract. And, to be fair, copyright proponents are thrilled when their substantive positions might be bolstered by promotion of sensible process reforms.

But the truth is that no one really knows how an independent and accountable Copyright Office will act with respect to contentious, substantive issues. Perhaps most likely, increased accountability via nomination and confirmation will introduce more variance in its positions. In other words, on substance, the best guess is that greater Copyright Office accountability and modernization will be a wash — leaving only process itself as a sensible basis on which to assess reform. And on that basis, there is really no reason to oppose this widely supported, incremental step toward a modern US Copyright Office.

Yesterday the Chairman and Ranking Member of the House Judiciary Committee issued the first set of policy proposals following their long-running copyright review process. These proposals were principally aimed at ensuring that the IT demands of the Copyright Office were properly met so that it could perform its assigned functions, and to provide adequate authority for it to adapt its policies and practices to the evolving needs of the digital age.

In response to these modest proposals, Public Knowledge issued a telling statement, calling for enhanced scrutiny of these proposals related to an agency “with a documented history of regulatory capture.”

The entirety of this “documented history,” however, is a paper published by Public Knowledge itself alleging regulatory capture—as evidenced by the fact that 13 people had either gone from the Copyright Office to copyright industries or vice versa over the past 20+ years. The original document was brilliantly skewered by David Newhoff in a post on the indispensable blog, Illusion of More:

To support its premise, Public Knowledge, with McCarthy-like righteousness, presents a list—a table of thirteen former or current employees of the Copyright Office who either have worked for private-sector, rights-holding organizations prior to working at the Office or who are  now working for these private entities after their terms at the Office. That thirteen copyright attorneys over a 22-year period might be employed in some capacity for copyright owners is a rather unremarkable observation, but PK seems to think it’s a smoking gun…. Or, as one of the named thirteen, Steven Tepp, observes in his response, PK also didn’t bother to list the many other Copyright Office employees who, “went to Internet and tech companies, the Smithsonian, the FCC, and other places that no one would mistake for copyright industries.” One might almost get the idea that experienced copyright attorneys pursue various career paths or something.

Not content to rest on the laurels of its groundbreaking report of Original Sin, Public Knowledge has now doubled down on its audacity, using its own previous advocacy as the sole basis to essentially impugn an entire agency, without more. But, as advocacy goes, that’s pretty specious. Some will argue that there is an element of disingenuousness in all advocacy, even if it is as benign as failing to identify the weaknesses of one’s arguments—and perhaps that’s true. (We all cite our own work at one time or another, don’t we?) But that’s not the situation we have before us. Instead, Public Knowledge creates its own echo chamber, effectively citing only its own idiosyncratic policy preferences as the “documented” basis for new constraints on the Copyright Office. Even in a world of moral relativism, bubbles of information, and competing narratives about the truth, this should be recognizable as thin gruel.

So why would Public Knowledge expose itself in this manner? What is to be gained by seeking to impugn the integrity of the Copyright Office? There the answer is relatively transparent: PK hopes to capitalize on the opportunity to itself capture Copyright Office policy-making by limiting the discretion of the Copyright Office, and by turning it into an “objective referee” rather than the nation’s steward for ensuring the proper functioning of the copyright system.

PK claims that the Copyright Office should not be involved in making copyright policy, other than perhaps technically transcribing the agreements reached by other parties. Thus, in its “indictment” of the Copyright Office (which it now risibly refers to as the Copyright Office’s “documented history of capture”), PK wrote that:

These statements reflect the many specific examples, detailed in Section II, in which the Copyright Office has acted more as an advocate for rightsholder interests than an objective referee of copyright debates.

Essentially, PK seems to believe that copyright policy should be the province of self-proclaimed “consumer advocates” like PK itself—and under no circumstances the employees of the Copyright Office who might actually deign to promote the interests of the creative community. After all, it is staffed by a veritable cornucopia of copyright industry shills: According to PK’s report, fully 1 of its 400 employees has either left the office to work in the copyright industry or joined the office from industry in each of the last 1.5 years! For reference (not that PK thinks to mention it) some 325 Google employees have worked in government offices in just the past 15 years. And Google is hardly alone in this. Good people get good jobs, whether in government, industry, or both. It’s hardly revelatory.

And never mind that the stated mission of the Copyright Office “is to promote creativity by administering and sustaining an effective national copyright system,” and that “the purpose of the copyright system has always been to promote creativity in society.” And never mind that Congress imbued the Office with the authority to make regulations (subject to approval by the Librarian of Congress) and directed the Copyright Office to engage in a number of policy-related functions, including:

  1. Advising Congress on national and international issues relating to copyright;
  2. Providing information and assistance to Federal departments and agencies and the Judiciary on national and international issues relating to copyright;
  3. Participating in meetings of international intergovernmental organizations and meetings with foreign government officials relating to copyright; and
  4. Conducting studies and programs regarding copyright.

No, according to Public Knowledge the Copyright Office is to do none of these things, unless it does so as an “objective referee of copyright debates.” But nowhere in the legislation creating the Office or amending its functions—nor anywhere else—is that limitation to be found; it’s just created out of whole cloth by PK.

The Copyright Office’s mission is not that of a content neutral referee. Rather, the Copyright Office is charged with promoting effective copyright protection. PK is welcome to solicit Congress to change the Copyright Act and the Office’s mandate. But impugning the agency for doing what it’s supposed to do is a deceptive way of going about it. PK effectively indicts and then convicts the Copyright Office for following its mission appropriately, suggesting that doing so could only have been the result of undue influence from copyright owners. But that’s manifestly false, given its purpose.

And make no mistake why: For its narrative to work, PK needs to define the Copyright Office as a neutral party, and show that its neutrality has been unduly compromised. Only then can Public Knowledge justify overhauling the office in its own image, under the guise of magnanimously returning it to its “proper,” neutral role.

Public Knowledge’s implication that it is a better defender of the “public” interest than those who actually serve in the public sector is a subterfuge, masking its real objective of transforming the nature of copyright law in its own, benighted image. A questionable means to a noble end, PK might argue. Not in our book. This story always turns out badly.