What They’re Saying: U.S. Copyright Office’s Section 512 Study Responses

Many organizations submit reply comments highlighting importance of safe harbor provisions in fostering the internet and supporting free speech online.

Re:Create Coalition: “Thanks to the openness of the user-generated platforms on the internet enabled by Section 512 of the DMCA, there is now a growing and important class of ‘new creators’…Users are an extremely important stakeholder in this conversation…Their voices are important, and failing to listen to them would be to ignore the core mission of the Copyright Office and any government entity — to serve the public.”

Association of Research Libraries and American Library Association: “[T]he grand bargain of the DMCA was the marriage of the WIPO implementation and the safe harbor bills. As noted above, according to the content providers, title I has ‘enabled an enormous variety of flexible, legitimate digital business models to emerge and thrive.’ And according to the Internet industry, title II has ‘allowed the Internet to become what it is today—a worldwide democratizing platform for communication, creativity, and commerce.’…Given the tradeoffs that Congress made in assembling the DMCA, the Office should not assess the impact of any title in isolation.”

Computer & Communications Industry Association: “Because online content such as commentary and parody may require using pre-existing content in ways permitted by limitations and exceptions, ‘stay-down’ obligations are likely to lead to suppression of content making lawful use of works that were previously the subject of takedown demands…’staydown’ is not feasible in most cases, would impose costly compliance burdens on service providers, especially startups, and risks harming users due to over-breadth.”

Electronic Frontier Foundation: “In the interest of clarity, so-called ‘notice-and-stay-down’ proposals should be identified for what they are: proposals to require service providers otherwise in compliance with the DMCA to proactively filter the Internet on the basis of allegations of copyright infringement…A filtering mandate would not be the minor change to existing law that the anodyne phrase ‘notice-and-stay-down’ suggests, but would rather dismantle the careful balance reflected in the DMCA.”

Engine: “The DMCA has been beneficial for startups and large players alike, and any potential changes to § 512 should be evaluated particularly closely in terms of their potential impact on current and future startups…As there is no feasible way for an OSP to entirely prevent future uploads of previously noticed works, a notice-and-staydown regime would likely spell the end of websites that allow users to create and share content. The drag that this would have on OSPs, users, content creators, and the broader economy would be devastating.”

FreedomWorks: “The internet has fostered the development of a new creative class that operates outside the traditional vertically integrated content creators that have dominated the industry. There is a vibrant new community of creators that is producing music, videos, and authoring creative works online that live in the shadow of Section 512. This group of creators has operates differently from the traditional content industry and relies on the existence of the safe harbors of Section 512.”

Institute for Intellectual Property & Social Justice: “IIPSJ believes that the adoption of any ‘notice and stay-down’ mechanism would thoroughly destabilize the fundamental OSP limited liability framework and cripple the Internet as a mechanism for public free expression and creative exchange.”

Organization for Transformative Works: “The diversity among creators and ISPs is itself evidence that the DMCA’s safe harbors are effective. The DMCA safe harbors allow a wide variety of types and sizes of ISPs to function, and the flexibility of the notice-and-takedown system allows a wide variety of content creators to address infringement. This diversity should be reason enough to avoid filtering, whether denominated as such or as ‘stay-down.’”

Public Knowledge: “Section 512 represents a complex effort at balancing important interests–providing an expedited enforcement mechanism for rightsholders in the online environment, while encouraging the growth of online services by limiting exposure to secondary liability. It also is aimed at fulfilling what the Supreme Court has repeatedly stated is the ultimate goal of the Copyright Act: ‘serv[ing] the public good.’ Section 512 serves the public good by ensuring the public will have a diverse array of online platforms for accessing, and sharing expression.”

R Street Institute and Center for Democracy & Technology: “Policymakers should be wary of tampering with the delicate balance of the current regime, which could jeopardize the rights of both copyright holders and users while also undermining the foundations of the digital economy…Absent these protections, online services and access providers would feel compelled to strictly monitor or restrict their customers’ activity for fear of litigation, likely leading to the suppression of significant amounts of protected speech.”