ICYMI: Re:Create Coalition Members’ Comments on the Copyright Office’s DMCA Study

WASHINGTON—The Re:Create Coalition and a number of coalition members filed comments in response to the U.S. Copyright Office’s study on Section 512 of the Digital Millennium Copyright Act (DMCA). By enabling a balance between creativity and the rights of copyright holders, the DMCA is a crucial cornerstone of the Internet economy’s prodigious growth. Removing the DMCA’s safe harbors provision would dramatically affect the online economy by increasing online platforms’ liability, driving down the rewards of innovation and chilling free speech and creative expression.

As the Re:Create Coalition stated in its filing:

“Under Section 512 copyright holders identify infringement and, if they choose, request its removal. Upon notification, online service providers remove or disable access to the infringing material. This is an essential part of the system because only copyright holders know what material they own, what they have licensed, and where they want their works to appear.

“This approach rightfully recognizes that Internet intermediaries should not have to be the police or monitor for infringing works. This is because it is often impossible for them to determine if content is licensed, infringing, or if it is a permitted under the exceptions and limitations in copyright law. The risk of being responsible for infringing content would be a huge burden on online intermediaries that host content, like YouTube, WordPress, Facebook and Etsy. The same goes for some basic functions of the Internet like comment sections and blogging platforms that depend on user generated content. Without this balance, it is likely the Internet we know today – a place where creativity is thriving – would not exist.”

Below is a compilation of excerpts from comments filed Re:Create Coalition members:

Center for Democracy & Technology (CDT) and R Street Institute on the importance of the DMCA: “The Internet could not have become what it is today without the immunity provided by section 230 of the Communications Act and the limitations on liability in section 512 of the DMCA. Those provisions allow online service providers to create the platforms and services that users rely on to access information and creative content, communicate with one another, and create and share their own original works. The flexibility of section 512 has fostered continued evolution and refinement in the mechanisms used to address online infringement without sacrificing the values of free expression and innovation that Congress sought to protect in enacting the DMCA.

Computer & Communications Industry Association on the success of the DMCA’s notice and takedown process: “One cannot deduce that the DMCA does not “work” from the fact that more rightsholders are using it with greater frequency…As technology and enforcement vendors make sending notices more efficient and less expensive, the rate of notices has risen. The growth in notices thus does not reflect an increase in infringement. Rather, it illustrates that free, automated tools developed by service providers and a growing market of enforcement vendors have reduced cost, increased efficacy, and thus increased demand for takedowns.”

Electronic Frontier Foundation (EFF) on the negative impact of notice and takedown on small and new platforms: “It is difficult to imagine how an ordinary service could ensure allegedly infringing content was never re-posted without engaging in precisely the kind of monitoring the section 512(m) excludes as a safe harbor requirement. In addition, while some service providers are sufficiently well-resourced that they might be able to comply with such a requirement, most are not. In practice, a ‘filter- everything’ would prevent many valuable and innovative services from ever launching, to the detriment of commerce and free expression. Finally, any proposal that would amount to an Internet blacklist would suffer the same problems as the unconstitutional legislative proposals that were soundly defeated in 2012.”

Library Copyright Alliance (including the American Library Association and the Association of Research Libraries) on how the safe harbor provision protects libraries: With the growth of open access scholarly communications, libraries increasingly act as online institutional repositories where academic authors can post papers, articles, and theses. The section 512(c) safe harbor shelters libraries from liability for infringing material that may be contained in the materials posted by third parties…The section 512(c) safe harbor provided a mechanism for libraries to avoid getting caught in the middle of a dispute between the authors and their publisher.”

Organization for Transformative Works (OTW) on the DMCA’s balanced enforcement of copyright law: “Congress’ great insight was that enforcement need not be perfect as long as profit-seeking copyright owners retained their incentives to produce. Perfect enforcement of copyright law, like perfect enforcement of traffic laws, would be so onerous that the benefits would not justify the costs, even if every element of due process were observed. As the explosion of content of every kind and the continuing, ever-increasing success of U.S. media industries demonstrates, this insight continues to have value even as the internet has vastly expanded in scope in multiple ways. Section 512 is far from perfect, especially when it comes to deterring abusive takedown notices, but no change is likely to perfect it, and many possible changes could make it worse.”

Public Knowledge on how to reduce automated and/or fraudulent takedown notices: Unfortunately the law does little to discourage…‘takedown first, ask questions later’ practices. Public Knowledge has proposed a number of reforms to encourage copyright owners to exercise greater care in sending takedown notices. First, Congress can increase notice sender accountability by modestly amending § 512(c)(3)(A)(vi)’s notice requirement. Second, Congress should strengthen the § 512(f) remedy for misrepresentations in notices. Third, Congress should authorize the creation or designation of a public repository for takedown notices…Combined, these three reforms would discourage the worst abuses of the notice and takedown system while still permitting copyright owners acting with at least a modicum of care to benefit from it.”

Re:Create represents a cross-section of creators, advocates, thinkers and consumers seeking to promote copyright standards that foster innovation, creativity and economic growth. For more information, please visit recreatecoalition.org.