Apr 062016

The following is Section III.A of the comment I submitted in the Copyright Office’s study on the operation of Section 512 of the copyright statute.

Question #1 asks whether Section 512 safe harbors are working as intended, and Question #5 asks the related question of whether the right balance has been struck between copyright owners and online service providers.  To the extent that service providers have been insulated from the costs associated with liability for their users’ content, the DMCA, with its safe harbors, has been a good thing.  But the protection is all too often too complicated to achieve, too expensive to assert, or otherwise too illusory for service providers to be adequately protected.

Relatedly, Question #2 asks whether courts have properly construed the entities and activities covered by the safe harbor, and the answer is not always.  But the problem here is not just that they have sometimes gotten it wrong but that there is too often the possibility for them to get it wrong.  Whereas under Section 230 questions of liability for intermediaries for illegality in user-supplied content are relatively straight forward – was the intermediary the party that produced the content? if not, then it is not liable – when the alleged illegality in others’ content relates to potential copyright infringement, the test becomes a labyrinth minefield that the service provider may need to endure costly litigation to navigate.  Not only is ultimate liability expensive but even the process of ensuring that it won’t face that liability can be crippling.[1]  Service providers, and investors in service providers, need a way to minimize and manage the legal risk and associated costs arising from their provision of online services, but given the current complexity[2] outlining the requirements for safe harbors they can rarely be so confidently assured.

[1] See, e.g., Dmitry Shapiro, UNCENSORED – A personal experience with DMCA, The World Wide Water Cooler (Jan. 18, 2012), available at https://web.archive.org/web/20120119032819/http://minglewing.com/w/sopa-pipa/4f15f882e2c68903d2000004/uncensored-a-personal-experience-with-dmca-umg (“UMG scoffed at their responsibilities to notify us of infringement and refused to send us a single DMCA take down notice. They believed that the DMCA didn’t apply. They were not interested in making sure their content was taken down, but rather that Veoh was taken down! As you can imagine the lawsuit dramatically impacted our ability to operate the company. The financial drain of millions of dollars going to litigation took away our power to compete, countless hours of executive’s time was spent in dealing with various responsibilities of litigation, and employee morale was deeply impacted with a constant threat of shutdown.”)

[2] While Section 230 is requires only about 800 words to articulate its protection for service providers, with the nearly 200 cited in Section II.A merely setting forth the policy purpose of the providing this protection, the DMCA is nearly five times as long, at over 4100 words.


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