U.S. Copyright Office Seeks Public Comment and Holds Public Roundtables Concerning DMCA Safe Harbor Provisions

The United States Copyright Office recently published a notice in the Federal Register (“the Notice”) seeking public comment in connection with a study it is conducting to evaluate the impact and effectiveness of the DMCA safe harbor provisions contained in 17 U.S.C. § 512 (“Section 512”). Comments, due on Friday April 1, 2016, could pave the way for a Congressional amendment to the DMCA and in particular, to the safe harbors relied upon by service providers to avoid liability for copyright infringement by users.

According to the Notice, Section 512 was enacted at a time when “less than 5% of the world’s population used the internet.” Yet today, according to the Notice, “nearly one-quarter of all internet bandwidth in North America, Europe, and Asia is devoted to hosting, sharing, and acquiring infringing material” and service providers receive over a million notices of alleged infringement on a daily basis. In light of these changed circumstances, the Copyright Office is evaluating the effectiveness of the current statutory requirements in section 512 and their impact on those who rely upon them. Among other topics of inquiry, the Copyright Office has sought comments on (i) the notice-and-takedown process under section 512(c)(3); (ii) the requirement for service providers to reasonably implement a repeat infringer policy under section 512(i); and (iii) counter-notifications under section 512(g)(3).

Notice and Takedown Process: The Notice seeks public comment on how effective section 512’s notice-and-takedown process is for addressing online infringement, how efficient or burdensome the process is for addressing online infringement, and whether the notice-and-takedown process sufficiently addresses the reappearance of infringing material previously removed by a service provider, in response to a notice of claimed infringement.

Repeat Infringer Policies: The Notice seeks public comment on whether sufficient clarity exists as to what constitutes a repeat infringer policy under section 512(i)(1)(A), and if not, what should be done to address this concern.

Counter-Notifications: The Notice seeks public comment on how effective the counter-notification process is for addressing false and mistaken assertions of infringement, how efficient or burdensome the counter-notification process is, and whether it is a workable solution over the long run.

Those submitting comments need not address every subject in the Notice, but must identify and separately address each numbered subject for which they are submitting a comment. As of the writing of this post, sixty-two (62) comments have been received. For those who wish to provide feedback to the Copyright Office but do not wish to submit a written comment, the Copyright Office will also be holding two public roundtables in May 2016: one at NYU Law School on May 2 and 3, and another at Stanford Law School on May 12 and 13.

Gibbons P.C. will continue to monitor and report on related developments.

Wendy R. Stein is Counsel in the Gibbons Intellectual Property Department.
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