Section 512 of Title 17

united states copyright office

section 512 of title 17

a report of the register of copyrights may 2020

section 512 of title 17

a report of the register of copyrights may 2020

united states copyright office

U.S. Copyright Office Section 512 Report

ACKNOWLEDGEMENTS

The publication of this Report is the final output of several years of effort by the Copyright

Office to assist Congress with evaluating ways to update the Copyright Act for the 21st century.

The genesis of this Report occurred in the midst of the two years of copyright review hearings

held by the House Judiciary Committee that spanned the 113th and 114th Congresses. At the

twentieth and final hearing in April 2015, the Copyright Office proposed several policy studies to

aid Congress in its further review of the Copyright Act. Two studies already underway at the

time were completed after the hearings: Orphan Works and Mass Digitization (2015), which the

Office later supplemented with a letter to Congress on the “Mass Digitization Pilot Program”

(2017), and The Making Available Right in the United States (2016). Additional studies proposed

during the final hearing that were subsequently issued by the Office included: the discussion

document Section 108 of Title 17 (2017), Section 1201 of Title 17 (2017), and Authors, Attribution, and

Integrity: Examining Moral Rights in the United States (2019). The Office also evaluated how the

current copyright system works for visual artists, which resulted in the letter to Congress titled

“Copyright and Visual Works: The Legal Landscape of Opportunities and Challenges” (2019).

Shortly after the hearings ended, two Senators requested a review of the role of copyright law in

everyday consumer products and the Office subsequently published a report, Software-Enabled

Computer Products (2016). Finally, two of our prior studies that were highlighted at that April

2015 hearing, Copyright Small Claims (2013) and Copyright and the Music Marketplace (2015), turned

into legislative opportunities, with the 2018 passage of the Orrin G. Hatch-Bob Goodlatte Music

Modernization Act (MMA), and the 2019 passage by the House of Representatives of the

This Report on section 512 is the final study to emerge from that set of congressional

hearings. It is also the first comprehensive study issued by a U.S. government agency on the

operation of section 512. Complex issues are involved: the operation of copyright liability in the

online environment has tremendous legal, social, economic, and technological implications.

Courts have been issuing decisions on various elements of section 512 for two decades. Changes

in technology and business models used to create and disseminate copyrighted materials

continues to grow in ways that could not have been imagined in 1998 when the Digital

Millennium Copyright Act was passed. It should surprise no one that this issue and this docket

have generated considerable public interest. I would like to thank the many individuals and

organizations who participated in roundtables and provided comments and empirical studies to

aid the Office in this process. This Report is the culmination of years of work; we have looked at

the past, evaluated the present, and identified important issues, themes, and consideration for

next steps.

The laboring oar on this Report has been wielded by the legal staff of the Office of Policy

and International Affairs, who helped write the very first Federal Register notice, attended all of

the roundtables, reviewed the record, developed its structure, researched the issues and identified

paths forward, and wrote the bulk of this Report. This endeavor has involved many discussions

U.S. Copyright Office Section 512 Report

with, and has benefited greatly from, colleagues throughout the Office. The input and assistance

of the Office of General Counsel, in particular, helped to guide and structure this Study, including

through their participation in all of the roundtables and work on Federal Register notices and

early drafts of the Report. Indeed, this Report represents the contributions of numerous current

colleagues as well as those who have since left the office, including: senior leaders, staff

attorneys, Ringer Program Fellows, law clerks serving in both Policy and International Affairs

and the Office of General Counsel, as well as support assistants and production designers.

To be certain, this Report, like all of the reports, studies, and legal opinions issued by the

was open, the Copyright Office has been led by an Acting Register of Copyrights. That fact does

not change the nature of any document issued by the Office. We are driven by our commitment

to provide expert legal advice to Congress on domestic and international copyright matters. 17

U.S.C. § 701(b)(1).

It is an honor to work with our team of professionals dedicated to public service. Given

the current COVID-19 challenges, they have done a spectacular job to complete and produce this

Report. While we will not be able to distribute print versions to Congress at this time, this

Report, as with our prior reports, will be posted online at www.copyright.gov/policy/section512/.

Maria Strong

Acting Register of Copyrights and Director,

U.S. Copyright Office

May 21, 2020

 
U.S. Copyright Office    Section 512 Report 
 
 
EXECUTIVE SUMMARY ............................................................................................................................. 1 
I.  INTRODUCTION AND STUDY HISTORY ........................................................................................ 8 
II.  HISTORY AND DEVELOPMENT OF SECTION 512 ..................................................................... 13 
A.  Pre-DMCA Legal and Policy Landscape .................................................................................... 13 
B.  Congress Sought to Achieve a Balance with the DMCA .......................................................... 18 
C.  General Overview of Section 512 ................................................................................................. 21 
1.  Secondary Liability .................................................................................................................. 21 
2.  OSPs and Safe Harbors ........................................................................................................... 23 
3.  Limitations on Relief and Eligibility for Safe Harbors ....................................................... 24 
4.  Notice-and-Takedown Process .............................................................................................. 25 
a)  Takedown Notice .............................................................................................................. 25 
b)  Knowledge and Financial Benefit ................................................................................... 26 
5.  Counter-Notification ............................................................................................................... 27 
III.  POST-DMCA CHANGES TO THE ONLINE ECOSYSTEM .......................................................... 27 
A.  Technological Changes Since the 1990s Have Changed the Landscape  
in which Section 512 Operates ...................................................................................................... 27 
B.  Past Efforts to Address Changes to the Online Landscape ...................................................... 35 
1.  Voluntary Agreements Adopted by the Marketplace ........................................................ 35 
a)  Examples of Best Practices ............................................................................................... 36 
b)  Examples of Formal Agreements .................................................................................... 39 
2.  Private Initiatives ..................................................................................................................... 42 
a)  Educational Outreach about Access to Legal Content ................................................. 42 
b)  Filtering ............................................................................................................................... 42 
c)  Trusted Notifier Programs ............................................................................................... 46 
3.  Government Inquiries and Reports....................................................................................... 47 
a)  Intellectual Property Enforcement Coordinator ........................................................... 47 
b)  Internet Policy Task Force ................................................................................................ 49 
IV.  HOW OTHER COUNTRIES HAVE TRIED TO STRIKE THE BALANCE................................... 50 
A.  Notice Systems ................................................................................................................................ 52 
1.  Notice-and-Notice.................................................................................................................... 52 
2.  Graduated Response ............................................................................................................... 53 
3.  Notice-and-Staydown ............................................................................................................. 54 
B.  Verified Systems ............................................................................................................................. 55 
1.  Third-Party................................................................................................................................ 55 
2.  Government Agency................................................................................................................ 56 
3.  Inter-Governmental Commission .......................................................................................... 57 
C.  Blocking  .......................................................................................................................................... 58 
1.  Examples of Blocking Actions ................................................................................................ 59 
a)  UK’s 97A Actions .............................................................................................................. 60 

 
U.S. Copyright Office    Section 512 Report 
 
 
b)  Australia’s Court-Ordered Blocking ............................................................................... 60 
c)  India’s Site Blocking .......................................................................................................... 61 
D.  European Union Digital Single Market Copyright Directive .................................................. 61 
V.  HIGH-LEVEL FINDINGS AND GUIDING PRINCIPLES ............................................................. 64 
A.  Guiding Principles for the Study ................................................................................................. 64 
1.  Copyright Protection Online Must be Meaningful and Effective ..................................... 64 
2.  OSPs Operating in Good Faith Must be Afforded Legal Certainty  
and Leeway to Innovate .......................................................................................................... 65 
3.  Congress Intended to Incentivize Cooperation Between OSPs  
and Rightsholders, but Cooperation Cannot be the Only Answer .................................. 66 
4.  To the Extent Possible, Government Decision-Making Should be  
Based on Evidence ................................................................................................................... 68 
5.  Internet Policy in the 21st Century Cannot be One-Size-Fits-All ..................................... 71 
B.  The Notice-and-Takedown System as Experienced by Parties Today  
is Unbalanced .................................................................................................................................. 72 
1.  Many OSPs Report that Section 512 is a Success Story ...................................................... 73 
2.  Creators and Rightsowners Report that Section 512 Currently Fails  
to Protect them from Online Infringement .......................................................................... 77 
3.  This Disconnect is Evidence that the Current System is not Working  
Consistently for all Stakeholders ........................................................................................... 83 
VI.  SPECIFIC FINDINGS AND RECOMMENDATIONS ..................................................................... 83 
A.  Evaluation of the Existing Section 512 Statutory Scheme ........................................................ 83 
1.  Qualification for the Section 512 Safe Harbors .................................................................... 84 
a)  Eligible Categories of OSPs.............................................................................................. 86 
i.  Section 512(c) Safe Harbor ......................................................................................... 87 
ii.  Section 512(a) Safe Harbor......................................................................................... 90 
iii.  Section 512(b) and (d) Safe Harbors ......................................................................... 92 
b)  OSP Obligations:  Repeat Infringer Policies .................................................................. 95 
i.  “Repeat Infringer” .................................................................................................... 100 
ii.  Adoption of a Policy Requiring Termination in  
Appropriate Circumstances .................................................................................... 103 
iii.  Reasonable Implementation .................................................................................... 106 
c)  Safe Harbor Exclusions:  Knowledge Requirements  
and Financial Benefit ...................................................................................................... 110 
i.  Knowledge Requirements ....................................................................................... 111 
(a)  Actual Knowledge vs. Red Flag Knowledge ................................................. 113 
(b)  Willful Blindness ................................................................................................ 124 
ii.  Financial Benefit/Right and Ability to Control ..................................................... 128 
2.  Notice-and-Takedown Process ............................................................................................ 136 
a)  Notice Requirements ...................................................................................................... 138 

 
U.S. Copyright Office    Section 512 Report 
 
 
b)  Representative List and Identifiable Location ............................................................ 139 
c)  Knowing Misrepresentation .......................................................................................... 145 
d)  Fair Use ............................................................................................................................. 150 
e)  Extra-Section 512 Processes and Requirements .......................................................... 152 
f)  Timeframes in Notice-and-Takedown Process ........................................................... 159 
3.  Other Section 512 Statutory Provisions .............................................................................. 163 
a)  Subpoenas ........................................................................................................................ 163 
b)  Injunctions ........................................................................................................................ 167 
B.  Non-Statutory Approaches to Mitigating Section 512 Limitations ....................................... 171 
1.  Education ................................................................................................................................ 171 
2.  Voluntary Measures .............................................................................................................. 173 
3.  Standard Technical Measures .............................................................................................. 176 
a)  Fingerprinting and Filtering Technologies .................................................................. 177 
b)  Principles for Developing STMs ................................................................................... 178 
c)  Recommendations for STMs .......................................................................................... 179 
C.  Alternative Stakeholder Proposals ............................................................................................ 180 
1.  Creation of an Alternative Statutory Method for Adjudication  
of Online Infringement Claims ............................................................................................ 181 
2.  Adoption of International Approaches .............................................................................. 182 
a)  Notice-and-Staydown ..................................................................................................... 186 
b)  Website Blocking ............................................................................................................. 193 
3.  Legislation Targeting Third-Party Providers ..................................................................... 196 
VII.  CONCLUSION .................................................................................................................................. 197 
 

U.S. Copyright Office Section 512 Report

EXECUTIVE SUMMARY

Since its establishment in 1998, as part of the Digital Millennium Copyright Act

(“DMCA”), section 512 of title 17 has both provided critical guideposts for the expansion of the

internet and produced widespread disagreement over its operation. This Report is the first full

analysis of whether section 512 is working effectively in achieving its aim of balancing the needs

of online service providers (“OSPs”)

with those of creators.

In enacting section 512, Congress sought to create a balance between two goals. One is

providing important legal certainty for OSPs, so that the internet ecosystem can flourish without

the threat of the potentially devastating economic impact of liability for copyright infringement as

a result of their users’ activity. The other is protecting the legitimate interests of authors and

other rightsholders against the threat of rampant, low-barrier online infringement. Congress

balanced these interests through a system where OSPs can enjoy limitations on copyright

liability—known as “safe harbors”—in exchange for meeting certain conditions, while giving

rightsholders an expeditious and extra-judicial method for addressing infringement of their

works. Thus, for some types of OSPs, their safe harbors are conditioned on taking down

infringing content expeditiously upon notification by a rightsholder.

In the twenty-plus years since section 512 went into effect, the question has often been

asked whether the balance that Congress sought has been achieved, particularly in the light of the

enormous changes that the internet has undergone. Indeed, that is the question that motivated

the Study that led to the present Report. Pursuant to a request from the then-Ranking Member of

the House Committee on the Judiciary in 2015, the Copyright Office undertook a multi-year

Study resulting in two notices of inquiry, tens of thousands of written responses, nine empirical

studies, and public roundtables in New York, San Francisco, and Washington, DC.

Through these efforts, the Office received dramatically varied opinions on whether section

512’s intended balance has been achieved. Roughly speaking, many OSPs spoke of section 512 as

being a success, enabling them to grow exponentially and serve the public without facing

debilitating lawsuits. Rightsholders reported a markedly different perspective, noting grave

concerns with the ability of individual creators to meaningfully use the section 512 system to

address copyright infringement and the “whack-a-mole” problem of infringing content re-

appearing after being taken down. Based upon its own analysis of the present effectiveness of

section 512, the Office has concluded that Congress’ original intended balance has been tilted

askew.

While the Office is aware that many stakeholders and members of the public use the terms online service provider

(“OSP”) and internet service provider (“ISP”) interchangeably, given the statutory differences between how section 512

treats mere conduit service providers (those that fall under section 512(a)) and other types of online service providers,

the Office believes that there is a benefit to easily differentiating mere conduits from other types of online service

providers. For this reason, the Office uses “ISP” herein to refer solely to mere conduit service providers under section

512(a), and uses “OSP” to refer to all online service providers covered by section 512, including mere conduits.

U.S. Copyright Office Section 512 Report

One of the Office’s goals in conducting this Study was to make recommendations for how

Congress might amend the statute if the initial balance was no longer working for all concerned

parties.

A summary of the Office’s conclusions and recommendations appears below, but first

the guiding principles followed by the Office in conducting the Study and making its

recommendations bear mentioning. First, copyright protection online must be meaningful and

effective, so that rightsholders can appropriately enforce their rights when they are infringed.

Second, OSPs operating in good faith must be afforded legal certainty and leeway to innovate, for

the benefit of not only their shareholders, but the public and the content industry as well. Third,

while Congress intended to incentivize cooperation between OSPs and rightsholders, cooperation

cannot be the only answer; voluntary initiatives certainly have their place, but experience shows

that they are no substitute for balanced legislation. Fourth, whenever possible, government

decision-making should be based on facts. But because much of the data underlying the (largely

private) operation of the section 512 system remains inaccessible, this limits the ability of

policymakers to consider such data in order to inform and develop solutions. Fifth, and finally,

internet policy in the 21st century cannot be one-size-fits-all. Policymakers must address

differences within and among stakeholder classes.

With the above guiding principles in mind, the Copyright Office makes the following

conclusions and recommendations, in twelve areas:

• Eligible Types of OSPs. Congress intended the four categories of OSPs to be quite

broad, in order to accommodate new, unforeseen technologies. It appears that courts

have generally construed the categories of safe harbors in harmony with Congress’

original intent. The Office notes, however, that the current contours of the section

512(c) safe harbor are in tension with the original balance Congress sought to achieve.

Specifically, the section 512(c) safe harbor shields an OSP from liability for monetary

relief “for infringement of copyright by reason of the storage at the direction of a user

of material that resides on a system or network controlled or operated by or for the

service provider.”

As currently interpreted, “by reason of the storage” has been

expanded to cover many activities “related to” hosting in a manner that Congress did

not likely anticipate. Other eligibility questions have arisen that Congress may want

to clarify, including the amount of time that qualifies as “temporary” for the section

512(b) safe harbor, and whether technology services beyond providing internet

infrastructure—such and peer-to-peer (“P2P”) systems and payment processors—

should appropriately be included under section 512(a).

• Repeat Infringer Policies. While there is significant disagreement among stakeholders

regarding the meaning of “repeat infringer,” the Fourth Circuit has held that a “repeat

infringer” under section 512 means repeat alleged infringer, not repeat adjudicated

Note that in this Report the Office has limited itself to consideration of the existing section 512 system. The Office

does not address larger questions regarding the appropriate liability scheme for OSPs.

17 U.S.C. § 512(c)(1).

U.S. Copyright Office Section 512 Report

infringer. This Report identifies two other aspects of section 512’s repeat infringer

requirements for OSPs that Congress may want to monitor and potentially address.

First, in order to qualify for a safe harbor, an OSP must have “adopted and reasonably

implemented . . . a policy that provides for the termination in appropriate

circumstances of subscribers and account holders of the service provider’s system or

network who are repeat infringers.”

As currently interpreted, OSPs may be found in

compliance if they adopt and reasonably implement an unwritten policy, the specifics

of which are never shared with the OSP’s users. In the Office’s view, such unwritten

and uncommunicated policies are unlikely to have the deterrent effect on infringing

conduct that Congress initially intended. Given the broad scope of the safe harbors,

having a clear, documented, and publicly available repeat infringer policy seems like

the appropriate minimum requirement in order to comply with the statute, as well as

to act as a deterrent to infringement. Second, Congress may wish to consider whether

it is advisable to provide further legislative guidance on what constitutes “appropriate

circumstances” for termination of a user’s account based upon repeated acts of

infringement, and whether such circumstances can ever arise in the absence of a

formal takedown notice from a rightsholder.

• Knowledge Requirements for OSPs. This Report identifies three areas where current

interpretations of the section 512 knowledge requirements for OSPs may be narrower

than Congress initially intended.

o First is the question of “actual knowledge” vs. “red flag knowledge,” which drew a

notably large number of comments during the Study. The statute requires that, in

order to qualify for the section 512(c) or (d) safe harbors, an OSP must both lack

actual knowledge that material or activity on its service is infringing, and “not [be]

aware of facts or circumstances from which infringing activity is apparent,” which

is known as red flag knowledge.

The Office believes that this question, in

particular, could benefit from Congressional attention to reiterate or clarify the

distinction between actual and red flag knowledge. Relatedly, the Office notes that

courts have struggled to articulate the appropriate relationship between section

512(m)’s intent to avoid the imposition of a duty to monitor on OSPs, with section

512(c) and (d)’s knowledge requirements. A fuller articulation of the intended

balance between this provision and other provisions in section 512 would be

valuable for stakeholders and courts. The Office further notes that the knowledge

requirements could benefit from statutory language that incorporates a

reasonableness standard to explicitly take into account differences among OSPs.

17 U.S.C. § 512(i)(1)(A).

17 U.S.C. §§ 512(c), (d).

U.S. Copyright Office Section 512 Report

o The second knowledge requirement issue the Office considered is that of the

application of the “willful blindness standard.” This is a common law doctrine

that asks whether an OSP deliberately blinded itself to knowledge of infringing

activity by its users. If an OSP is found to have engaged in willful blindness, it will

be charged with the equivalent of actual knowledge and lose its safe harbor. The

that is modified from the traditional common law standard and requires that the

willful blindness involve deliberate avoidance of specific incidences of

infringement, rather than avoidance of acts of infringement generally. While

courts have reached this conclusion in an effort to reconcile the doctrine with

section 512(m), the result may be in some tension with what appears to be

Congress’ original intent. The Office believes that section 512 could benefit from

Congressional action to further clarify the intended scope of willful blindness and

interaction between this doctrine and section 512(m).

o The third knowledge requirement issue the Office reviewed concerns the common

law vicarious liability standard, which was imported into the DMCA through

section 512(c)(1)(B)’s provision that hosting OSPs are not liable “for infringement

of copyright by reason of the storage at the direction of a user . . . if the service

provider . . . does not receive a financial benefit directly attributable to the

infringing activity, in a case in which the service provider has the right and ability

to control such activity.”

Currently, courts require a showing of “something more

than the ability to remove or block access to [infringing] materials.”

While the

Office does not favor a significant tightening of this standard, Congress may want

to evaluate if current interpretations are in line with the intended balance.

• Representative List and Identification of Location. In sending a compliant takedown

notice, a rightsholder must identify the work allegedly infringed, “or, if multiple

copyrighted works at a single online site are covered by a single notification, a

representative list of such works at that site.”

The rightsholder must also include

“information reasonably sufficient to permit the service provider to locate” the

infringing material.

This statutory language is ambiguous, with the result that it is

often difficult for courts to ascribe separate meaning to these two requirements. For

this reason, Congress may want to consider providing additional statutory clarity.

Similarly, the Office notes that there is a tension between Congress’ apparent intent

behind the “information reasonably sufficient . . . to locate” provision and the degree

17 U.S.C. § 512(c)(1)(B).

Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 38 (2d Cir. 2012).

17 U.S.C. § 512(c)(3)(A)(ii).

17 U.S.C. § 512(c)(3)(A)(iii).

U.S. Copyright Office Section 512 Report

of specificity that many OSPs and some courts require. The Office concludes that

Congress may wish to consider whether the “information reasonably sufficient . . . to

locate” provision is appropriately interpreted as requiring that a rightsholder must

submit a unique, file-specific URL for every instance of infringing material on an

OSP’s service.

• Knowing Misrepresentation and Abusive Notices or Counter-Notices. Senders of both

takedown notices and counter-notices are liable for damages if they make knowing

material misrepresentations regarding whether the material to be taken down is

infringing, or has been removed or disabled by mistake or misidentification.

Courts

have appropriately interpreted this provision by requiring actual knowledge or willful

blindness of falsity, not merely negligent or unreasonable misrepresentation. The

Office notes, however, that many stakeholders called for increased penalties for

misrepresentations to serve a deterrent effect.

• Knowing Misrepresentation and Fair Use. The Copyright Office questions the test for

knowing misrepresentation under section 512(f) adopted by the Lenz court, which had

the effect of imputing the good faith requirement in section 512(c)(3) for notice sending

into the analysis of section 512(f)’s knowing misrepresentation requirement.

Such an

analysis could result in placing potential liability on rightsholders who fail to

undertake a fair use inquiry before sending a takedown notes, without regard to

whether or not the material is actually infringing. The Office suggests that Congress

monitor the impact of Lenz, and consider any clarifying statutory language that may

be necessary.

• Standard & Non-standard Notice Requirements. Based on the information obtained

during the course of the Study, the Copyright Office notes that the mechanisms for

submission of takedown notices, adopted in recent years by many of the larger OSPs,

are no longer in sync with the notice requirements set forth in section 512(c). The

proliferation of new web-based submission forms and OSP-imposed requirements for

substantiation of takedown notices in order to ensure the efficiency of the process has

had the effect of increasing the time and effort that smaller rightsholders must expend

to send takedown notices. At the same time, some of the current notification standards

set forth in section 512(c) could be on their way to becoming obsolete. The Copyright

Office therefore recommends that Congress consider shifting the required minimum

notice standards for a takedown notice to a regulatory process, enabling the Copyright

Office to set more flexible rules and “future-proof” the statute against changing

communications methods.

17 U.S.C. § 512(f).

See Lenz v. Universal Music Corp., 801 F.3d 1126, 1154 (9th Cir. 2015).

U.S. Copyright Office Section 512 Report

• Time Frames Under Section 512. The statutory requirement that OSPs “expeditiously”

remove or disable access to infringing material upon becoming aware of it has been

interpreted by the courts using a flexible approach that takes into consideration the

varying circumstances of each case. The Copyright Office largely agrees that such

flexibility is needed. In contrast, the Office notes that the current statutory timeframes

to resume providing access to content following receipt of a counter-notice currently

ill serves both users and rightsholders given current business models and the realities

of federal litigation. Ten to fourteen days is both too long for legitimate speech to be

blocked, and too short for a rightsholder to realistically prepare and file a federal

lawsuit to prevent the return of infringing materials. For this reason, Congress may

want to look into an alternative dispute resolution model to address these questions

instead.

• Subpoenas. Section 512(h) permits a rightsholder to subpoena an OSP to identify an

alleged infringer. However, this provision has proven to be little-used by

rightsholders, in part because of how restrictively courts have interpreted it and in

part because the information gleaned from such subpoenas is often of little use.

Additionally, section 512(h) is ambiguous as to whether it applies to mere conduit

ISPs, who may be the only source of information regarding the identity of users

engaged in activities like P2P filesharing. Hence, the Office recommends that

Congress consider clarifying the language of section 512(h).

• Injunctions. Section 512, while it bars monetary relief against OSPs, does allow limited

forms of injunctive relief, specified under section 512(j). Courts, however, have largely

interpreted the section 512(j) forms of injunctive relief in a way that is largely co-

extensive with the notice-and-takedown system. While the Office believes such a

reading is narrower than Congress may have intended and that several forms of

section 512(j) injunctive relief remain available after a takedown, the Office does not

believe that the issue currently requires Congressional intervention. However, if

Congress believes that the range of injunctive relief available to rightsholders should

be broader than it currently is in practice, it may want clarify the distinction between

notice-and-takedown relief and section 512(j) injunctive relief.

• Non-statutory Approaches. In addition to the foregoing list of approaches that

Congress may wish to consider, the Copyright Office notes that there is untapped

potential for additional approaches that would not require congressional intervention.

Accordingly, the Office plans to prepare and launch educational materials to inform

all participants in the section 512 system of their rights and responsibilities, and

encourages stakeholders to participate. In addition, the Office will look into ways to

facilitate additional voluntary initiatives to address online infringement, as well as to

help identify standard technical measures that can be adopted in certain sectors.

U.S. Copyright Office Section 512 Report

• Alternative Stakeholder Proposals: This Report includes illustrative information on

developments involving online intermediary liability in other countries. It also

identifies several proposals submitted by commenters on new approaches that the

Office sees as going beyond the original construct of the DMCA. For those issues—

specifically notice-and-staydown and website blocking—the Office believes that

additional study, including of potential non-copyright implications, with public input,

would be needed in order to explore the possible contours of any such future

proposals.

The Office is not recommending any wholesale changes to section 512, instead electing to

point out where Congress may wish to fine-tune section 512’s current operation in order to better

balance the rights and responsibilities of OSPs and rightsholders in the creative industries.

Should Congress choose to continue to support the balance it devised the DMCA and move

forward on the issues identified in this Report, then the Office harbors some optimism that a path

toward rebuilding the section 512 balance could be found.

Finally, the Office is also mindful that the opportunities and challenges faced by everyone

in the online environment—creators (large, medium, and small), OSPs (large, medium, and

small), and users (of all sizes and in many sectors) —are very different today than in 1998.

Congress also could choose to reevaluate how it perceives any balancing factors in the current

environment, as well as other measures that would go beyond the current constructs of section

512. Those kinds of legislative decisions are in the hands of Congress and the Office makes no

recommendations with respect to such larger questions about possible future balancing

approaches. The Copyright Office stands ready to continue its work to provide additional advice

to Congress.

U.S. Copyright Office Section 512 Report

I. INTRODUCTION AND STUDY HISTORY

Enacted in 1998 as part of the Digital Millennium Copyright Act (“DMCA”),

section 512

of title 17 sought to address the increasing conflict between two economically important

industries precipitated by the growth of the commercial internet in the 1990s. Traditional content

industries faced what many came to view as an existential threat, from the convergence of newly

dominant and near-lossless digital media formats with a world-wide, interconnected network

that facilitated the distribution of digital files of any type.

At the same time, the nascent internet

service industry faced potentially crippling liability for acts of infringement committed by their

users as a result of the strict nature of copyright infringement liability.

Congress recognized that

such fears could dissuade investment in internet technologies and services just as the vast

potential of such innovations was becoming widely apparent.

Accordingly, Congress crafted

section 512 with a dual purpose: (1) to enable copyright owners to effectively address the

infringement of their works online and (2) to facilitate the development of internet-based

platforms by clarifying the obligations and limiting the liability of OSPs with respect to

infringement committed by third-party users of their systems.

In exchange for cooperating with

limitations on copyright liability under section 512—referred to as “safe harbors”—so long as

they met certain conditions.

Section 512 contains four separate safe harbors, each of which has its own set of eligibility

requirements.

All OSPs must adopt and reasonably implement “a policy that provides for the

termination in appropriate circumstances of subscribers and account holders of the service

provider’s system or network who are repeat infringers,” and accommodate and not interfere

with the use of standard technical measures by copyright owners to identify or protect their

Pub. L. No. 105-304, 112 Stat. 2860 (1998).

See, e.g., John Naughton, Farewell Then, iTunes, and Thanks for Saving the Music Industry from Itself, GUARDIAN (Jun. 9,

2019), https://www.theguardian.com/commentisfree/2019/jun/09/farewell-itunes-thanks-for-saving-music-industry-

from-itself (after the shutdown of Napster in 2001, “[d]ozens of filesharing systems had come into being and the record

business found itself facing an existential threat”); Anne Eisenberg, What’s Next: Legal Squabbles in Path of Internet, N.Y.

TIMES (Dec. 9, 1999), https://www.nytimes.com/1999/12/09/technology/what-s-next-legal-squabbles-in-path-of-

internet.html; Jon Pareles, The Media Business: Industry Plan Is Aimed at Selling Music Over the Internet, N.Y. TIMES (Dec.

16, 1998), https://www.nytimes.com/1998/12/16/business/the-media-business-industry-plan-is-aimed-at-selling-music-

over-the-internet.html.

See, e.g., Religious Tech. Ctr. v. Netcom On-Line Commc’n Servs., Inc., 907 F. Supp. 1361 (N.D. Cal. 1995) (“Netcom”); Sega

Enters. Ltd. v. MAPHIA, 948 F. Supp. 923 (N.D. Cal. 1996); Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla. 1993)

(“Frena”).

See The Copyright Infringement Liability of Online and Internet Service Providers: Hearing Before the S. Comm. on the

Judiciary, 105th Cong. 2 (1997) (statement of Chairman Sen. Orrin G. Hatch) (“In the past few years alone, the Internet

has more than tripled in size . . . . Do we want this growth to be retarded by a series of adverse court rulings or because

content providers are reluctant to make full use of the Internet?”) (“Senate Copyright Infringement Liability Hearing”).

See S. REP. NO. 105-190, at 40 (1998); H.R. REP. NO. 105-551, pt. 2, at 49–50 (1998).

17 U.S.C. §§ 512(a)–(d).

U.S. Copyright Office Section 512 Report

works.

In addition, most OSPs must also maintain a “notice-and-takedown” process whereby

the OSP responds expeditiously to remove or disable access to material claimed to be infringing

upon receipt of a proper notice from a copyright owner.

An OSP that meets the eligibility

criteria under one of the safe harbors is not liable for monetary relief resulting from copyright

infringement committed by its users and is subject to only limited injunctive relief.

Through this

system, Congress aimed to create incentives for OSPs and copyright owners to address online

infringement cooperatively and efficiently, outside the context of costly and protracted federal

court litigation, while encouraging the further development of the internet.

Over the past two decades, as the internet has transformed virtually every facet of the

govern the rights and responsibilities of stakeholders in the online environment. Partially as a

result of this, the internet of today looks dramatically different from that of 1998, when the

DMCA was enacted. With those changes has come widespread debate over section 512’s

continued effectiveness at meeting its underlying goals in the twenty-first century. On the one

hand, the explosive growth in the number and variety of online services, both within and outside

of traditional copyright industries, is powerful evidence that the statute has succeeded in creating

legal conditions under which an innovative digital marketplace can thrive. These developments

have done much to advance the goals of the copyright system: authors have new tools with

which to produce original works and to reach wide audiences; creative industries have built a

host of groundbreaking distribution and licensing models; and consumers, researchers,

educators, and others can access more copyrighted content, through a greater number of lawful

channels, than at any other time in history.

On the other hand, there are substantial questions over whether the current statutory

framework is adequate to address the sheer volume of copyrighted material online, some of it

unauthorized. Today, internet users post hundreds of millions of authorized and unauthorized

photos, videos, sound recordings, and other works on a daily basis. In 2015, YouTube alone had

17 U.S.C. § 512(i).

17 U.S.C. §§ 512(b)–(d).

17 U.S.C. §§ 512(b)–(d), (j).

See S. REP. NO. 105-190, at 20 (1998); H.R. REP. NO. 105-551, pt. 2 at 49–50 (1998).

See, e.g. Electronic Frontier Foundation (“EFF”), Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry at 4 (Apr. 1, 2016) (“EFF Initial Comments”) (“The Internet has become the most revolutionary

platform for the creation and dissemination of speech that the world has ever known. Interactive platforms like video

hosting services and social networking sites have become vital not only to democratic participation but also to the

ability of users to forge communicates, access information instantly, and discuss issues of public and private concern.”);

Organization for Transformative Works (“OTW”), Comments Submitted in Response to U.S. Copyright Office’s Dec.

31, 2015, Notice of Inquiry at 2 (Apr. 1, 2016) (“OTW Initial Comments”) (“There are many predicates for successful

markets, but § 512 is one of them because it has helped many new services thrive and compete, allowing both service

providers and copyright owners—large and small—to experiment with various ways of finding their audiences.”).

U.S. Copyright Office Section 512 Report

almost 400 hundred hours of video uploaded every minute,

and by May 2019, that figure was

up to 500 hours.

As online activity and third party uses of creators’ content have increased, so

too has the pressure on the notice-and-takedown system’s ability to serve the needs of all

stakeholders. Many of the larger rightsholders have come to rely on automated processes to

search for unauthorized material and generate takedown notices on a mass scale unimagined by

Congress in 1998, but these stakeholders still express continued concerns regarding the impact of

infringement on their bottom lines.

Similarly, while many of the larger internet platforms have

augmented or sidestepped use of traditional notice-and-takedown processes by either licensing

content or by building bespoke systems allowing large copyright owners to identify and manage

instances of their content on the platform’s system,

discussions of these efforts are often bundled

with discussions about the time and resources required to create and manage these

interventions.

In contrast, smaller creators report devoting significant time and resources to

See Industry Keynote with YouTube CEO Susan Wojcicki (VidCon 2015), YOUTUBE 10:48–57 (Sept. 29, 2015),

https://www.youtube.com/watch?v=O6JPxCBlBh8; see also Sirena Bergman, We Spend a Billion Hours a Day on YouTube,

More Than Netflix and Facebook Video Combined, FORBES, (Feb. 28, 2017),

https://www.forbes.com/sites/sirenabergman/2017/02/28/we-spend-a-billion-hours-a-day-on-youtube-more-than-

netflix-and-facebook-video-combined/.

J. Clement, Hours of Video Uploaded to YouTube Every Minute 2007–2019, STATISTA (Aug. 9, 2019),

https://www.statista.com/statistics/259477/hours-of-video-uploaded-to-youtube-every-minute/.

See, e.g., Association of American Publishers (“AAP”), Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry at 6 (Apr. 1, 2016) (“AAP Initial Comments”) (“Rights holders send millions of

notifications, yet these collectively have had little impact toward reducing the volume of infringing material

available.”); Content Creators Coalition (“c3”), Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry at 4 (Apr. 1, 2016) (“c3 Initial Comments”) (“The notice and takedown system requires creators

and copyright holders to police millions of infringements. This year, Google believes they will receive over 1 billion

takedown notices. Notice and takedown today barely staunches illegal content, and music removed is uploaded again

immediately after it is taken down. This process foists huge costs on creators, yet with no effect in stopping

infringement.”); cf. Ernesto Van der Sar, Top 3 Copyright “Owners” Sent Google a Billion Takedown Requests, TORRENTFREAK

(Dec. 25, 2018), https://torrentfreak.com/top-3-copyright-owners-sent-google-a-billion-takedown-requests-181225/.

Google posts searchable statistics on takedown requests and removals, including the number of unique URLs to be

delisted, the number of copyright owners requesting removal, and the top requesting organizations. As of May 2020,

Google had received requests to remove over 4.6 trillion URLs. Three rights owners collectively requested over 1

billion removals, and the top ten rightsholders, out of over 206,000, collectively accounted for slightly over 2 billion

URL removal requests. Content Delistings Due to Copyright, GOOGLE: TRANSPARENCY REPORT,

http://transparencyreport.google.com/copyright/overview.

Development of these licensing and technological approaches to online infringement did not arise in a vacuum, or

even solely from the incentives built into section 512, however. Introduction of YouTube’s Content ID system in 2007

came amid a series of lawsuits brought against the video platform by the likes of Viacom, Mediaset, the Premier

League, and others, both in the United States and abroad. See, e.g., Viacom Int’l, Inc. v. YouTube, Inc., No. 07 Civ. 2103

(S.D.N.Y. 2007), consolidated with The Football Assoc. Premier League Ltd. et al. v. YouTube, Inc., No. 07 Civ. 3582 (S.D.N.Y.

2007); RTI Reti Televisive Italiane SpA vs. YouTube LLC, (Tribunale Ordinario di Roma, 16 dicembre 2009) (It.).

(Apr. 1, 2016) (“Copyright Alliance Initial Comments”) (“Individual creators who file notices lack the resources of

larger copyright owners to make a meaningful impact. Eighty-five percent of those we surveyed said they issue

takedown notices all by themselves, taking time away from their creative pursuits, which pushes many to give up

U.S. Copyright Office Section 512 Report

identifying instances of their content online and sending takedown notices, to little effect,

while

some smaller OSPs express concern about facing an increasing amount of takedown notices

without the benefit of the technological resources deployed by the largest incumbents.

Without

the technological or administrative support available to the larger rightsholders and OSPs, some

smaller creators and OSPs struggle to operate within the current section 512 framework, which,

coincidently or not, they did not have the opportunity to shape.

Meanwhile, some observers

worry that the system’s growth and increasing reliance on automation may render it more

susceptible to errors and abuses that chill lawful online speech.

In light of these and related concerns, the House Committee on the Judiciary held a

hearing on section 512 in March 2014, featuring stakeholders representing rightsholders, OSPs,

enforcement efforts all together.”); Warner Music Group (“WMG”), Comments Submitted in Response to U.S.

See, e.g., Maria Schneider, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry at 5 (Apr. 1, 2016) (“Schneider Initial Comments”) (“The current takedown scheme is a constant whack-a-mole

game.”); Tr. at 15:7–10 (May 2, 2016) (Lisa Hammer, independent film director) (“That’s taking up a lot of my time,

where I could be actually working on my art instead and it’s very time consuming to keep searching for all the torrents

that I now have to take down”). In particular, visual artists report that they are deeply concerned about online

infringement due to the widespread confusion among users concerning when to seek permission to use visual works

and the ease of perfectly copying and using a digital image without compensation to the owner. See Letter from Karyn

A. Temple, Acting Register of Copyrights & Dir., U.S. Copyright Office, to Lindsey Graham, Chairman, Comm. on the

Judiciary, U.S. Senate, and Dianne Feinstein, Ranking Member, Comm. on the Judiciary, U.S. Senate 15–17 (Jan. 18,

2019), https://www.copyright.gov/policy/visualworks/senate-letter.pdf; Letter from Karyn A. Temple, Acting Register

of Copyrights & Dir., U.S. Copyright Office, to Jerrold Nadler, Chairman, Comm. on the Judiciary, H.R., and Doug

Collins, Ranking Member, Comm. on the Judiciary, U.S. House of Representatives 15–17 (Jan. 18, 2019),

https://www.copyright.gov/policy/visualworks/house-letter.pdf (“Visual Works Letters”).

See, e.g., Engine Advocacy et al., Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry at 6 (Apr. 1, 2016) (“Engine et al. Initial Comments”) (“[C]ompliance can be rather burdensome for startups

without vast resources given the obligations involved (e.g., expeditiously processing requests for removal of content,

establishing and implementing a reasonable repeat infringer policy, designating and registering an agent to receive

notices of infringement, etc.).”); The Internet Association, Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 15 (Apr. 1, 2016) (“Internet Association Initial Comments”) (“[T]he problems of scale

are true for Internet platform creators: startups and small businesses lack the sophisticated resources of larger, more

established businesses in responding to takedown requests.”); OTW Initial Comments at 5 (“The OTW doesn’t have the

resources to double-check the work of thousands of copyright claimants if they send notices based on metadata such as

work titles.”).

See, e.g., Senate Copyright Infringement Liability Hearing, 105th Cong. 6 (statement of Chairman Sen. Orrin G. Hatch)

(noting that the day’s panelists “represent the major industries and interests affected by the issues we will be discussing

throughout the course of this debate”); WIPO Copyright Treaties Implementation Act; and Online Copyright Liability

Limitation Act: Before the Subcomm. on Courts & Intellectual Prop. of the H. Comm. on the Judiciary, 105th Cong. III-IV (1997)

(list of witnesses and letters/statements for the record) (“House WCT Implementation Act Hearing”).

See, e.g., EFF Initial Comments at 15 (“[W]e agree with many service providers that filtering technologies are an

expensive approach to policing infringement, and one that is likely to lead to collateral damage to free speech and

innovation.”); Public Knowledge, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry at 3 (Apr. 1, 2016) (“PK Initial Comments”) (“[T]he rise of automation on both the copyright owner and online

service provider sides of the equation raise a number of questions and concerns.”).

U.S. Copyright Office Section 512 Report

and the legal community.

The Register of Copyrights later advised the Committee in April 2015,

as part of the Committee’s comprehensive review of U.S. copyright law, that a formal study of

section 512 would be advisable to consider the statute’s current impact and effectiveness, along

with potential improvements.

In response, the Ranking Member of the Committee requested

that the Office undertake such a study and provide a report to the Committee.

The Office began this process by publishing a notice of inquiry in the Federal Register on

December 31, 2015 (“First Notice”), requesting public comment on thirty questions relating to the

general effectiveness of the safe harbors, the notice-and-takedown process, counter notifications,

legal standards, repeat infringers, standard technical measures, and remedies.

The Office

received more than 92,000 written responses from a wide range of parties, including rightsholders

OSPs, technology companies, libraries, legal scholars, public interest groups, and individual

members of the public.

The Office then held two initial public roundtables over four days in

May 2016, in New York and San Francisco, to seek further input on the topics raised in the First

Notice, as well as on other relevant issues.

Section 512 of Title 17: Hearing Before the Subcomm. on Courts, Intellectual Prop. & the Internet of the H. Comm. on the

Judiciary, 113th Cong. (2014).

statement of Maria A. Pallante, Register of Copyrights and Dir., U.S. Copyright Office) (“House Register’s Perspective

Hearing”).

House Register’s Perspective Hearing, 114th Cong. 49 (statement of Rep. John Conyers, Jr., Ranking Member, H. Comm.

on the Judiciary).

Section 512 Study: Notice and Request for Public Comment, 80 Fed. Reg. 81,862 (Dec. 31, 2015). This notice is

attached in Appendix A. The same month it launched the present Study, the Office issued Notices of Inquiry for three

additional studies: U.S. COPYRIGHT OFFICE, SOFTWARE ENABLED CONSUMER PRODUCTS (2016),

https://www.copyright.gov/policy/software/software-full-report.pdf; U.S. COPYRIGHT OFFICE, SECTION 1201 OF TITLE 17

(2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf; mass digitization; and U.S. COPYRIGHT

OFFICE, AUTHORS, ATTRIBUTION, AND INTEGRITY: EXAMINING MORAL RIGHTS IN THE UNITED STATES (2019),

https://www.copyright.gov/policy/moralrights/.

The Office received over 92,000 comments in response to the first NOI. Many of these were submitted by individual

users via a comment form and template text provided by a third party. For ease of review, the Office sorted all

comments into three categories: (i) Long Form [LF], comments that were submitted as attachments and contained

unique content (less than 0.2% of comments), (ii) Short Form [SF], comments typed directly into the Regulations.gov

form that provided short statements on section 512 that were comprised of either unique content, or content where at

least 40% of the text differed from the text in the third party’s template (slightly more than 5.3% of comments), and (iii)

Template Form [TF], comments typed directly into the Regulations.gov form that largely tracked the third party

template, with less than 40% original text (more than 94.3% of comments). The comments received in response to the

First Notice are available online at https://www.regulations.gov/docketBrowser?rpp=25&so=ASC&sb=title&

po=0&dct=PS&pd=ALL-07%7C01%7C16&D=COLC-2015-0013. References to these comments are by party name

(abbreviated where appropriate) followed by “Initial Comments.”

Section 512 Study: Announcement of Public Roundtables, 81 Fed. Reg. 14,896 (March 18, 2016). The Federal Register

notice announcing the roundtables is attached in Appendix A. The agendas for each of the roundtables are attached in

Appendix B. Transcripts of the New York roundtables are available at https://www.copyright.gov/policy/

section512/public-roundtable/transcript_05-02-2016.pdf and https://www.copyright.gov/policy/section512/public-

U.S. Copyright Office Section 512 Report

On November 8, 2016, the Office published a second notice of inquiry (“Second Notice”)

requesting additional public input on sixteen questions relating to issues raised in the written

comments and during the roundtables.

Noting that commenters had expressed a desire for

more comprehensive empirical data in this area, the Second Notice also invited parties to submit

empirical research studies assessing the operation of the safe harbor provisions on a quantitative

or qualitative basis.

The Office received seventy-nine written comments and nine empirical

studies in response to the Second Notice.

The Copyright Office held its final roundtable meeting for the Section 512 Study on April

8, 2019, in Washington, D.C.

Over fifty individuals representing a variety of companies and

organizations participated in the discussion on domestic case law and international legal and

policy developments since 2017.

II. HISTORY AND DEVELOPMENT OF SECTION 512

A. Pre-DMCA Legal and Policy Landscape

In the 1990s, the rapid growth of the internet gave rise to a host of new concerns for

parties throughout the copyright system. Stakeholders recognized that the internet not only

posed unprecedented risks for the protection of creative works,

but also raised complex legal

questions about liability, damages, and the responsibility of third-party intermediaries.

Prior to

roundtable/transcript_05-03-2016.pdf. Transcripts of the San Francisco roundtables are available at

https://www.copyright.gov/policy/section512/public-roundtable/transcript_05-12-2016.pdf and

https://www.copyright.gov/policy/section512/public-roundtable/transcript_05-13-2016.pdf.

Section 512 Study: Request for Additional Comments, 81 Fed. Reg. 78,636 (Nov. 8, 2016).

Section 512 Study: Request for Additional Comments, 81 Fed. Reg. 78,636, 78,642 (Nov. 8, 2016).

The comments received in response to the Second Notice are available online at https://www.regulations.gov/

docketBrowser?rpp=25&so=ASC&sb=title&po=0&s=Additional%2BComments&pd=02%7C01%7C17-

03%7C17%7C17&D=COLC-2015-0013. References to these comments are by party name (abbreviated where

appropriate) followed by “Additional Comments.” The empirical studies received in response to the Second Notice are

available online at https://www.regulations.gov/docketBrowser?rpp=25&so=ASC&sb=title&po=0&s=%5BES%5D

&dct=PS&pd=03%7C23%7C17-03%7C23%7C17&D=COLC-2015-0013. References to these studies are by party name

(abbreviated where appropriate) followed by “Empirical Study.”

Section 512 Study: Announcement of Public Roundtable, 84 Fed. Reg. 1233 (Feb. 1, 2019). The Federal Register notice

announcing the roundtable is attached in Appendix A. Transcripts of the Washington, D.C. roundtable are available at

https://www.copyright.gov/policy/section512/public-roundtable/transcript_04-08-2019.pdf. A Glossary of acronyms

and terms used in this Report is attached in Appendix C.

See, e.g., Senate Copyright Infringement Liability Hearing, 105th Cong. 1–2 (statement of Chairman Sen. Orrin G. Hatch)

(stating that the internet had the potential to “recklessly facilitate infringement” and that Congress aimed to “best

combat the risk of copyright infringement facing content providers on the Internet”); Marybeth Peters, Lecture,

Wu, When Code Isn't Law, 89 VA. L. REV. 679, 724–726 (2003).

See Eric Schlachter, Cyberspace, The Free Market and the Free Marketplace of Ideas: Recognizing Legal Differences in

Computer Bulletin Board Functions, 16 HASTINGS COMM./ENT. L.J. 87, 95 (1993) (“The power of this new technology has

U.S. Copyright Office Section 512 Report

the internet, music infringement primarily occurred in the form of the distribution of physical

media which, when committed on a commercial scale, could be prosecuted as criminal

infringement.

The average consumer’s ability to reproduce music directly was limited to

recording songs from the radio or making small numbers of copies of works, as the limits of

technology at that time restricted the scale and quality of both reproduction and distribution.

sizes enabled by the newly rediscovered MP3 format, would enable ordinary users to easily

spread unauthorized near-perfect digital copies of copyrighted works to other users across the

globe, at a pace limited only by download speeds, creating new opportunities for infringement

that were not available before the digital age.

At the same time, OSPs had difficulty addressing the growing issue of digital piracy,

especially with balancing the appropriate degree of oversight and control over their users’

caused some private and state actors to respond aggressively, overreacting to weak threats and inhibiting legitimate

conduct. Ambiguities arise as old law is applied to new technologies. With the inherent ambiguities of cyberspace, the

need to define its boundaries for legal purposes becomes even more critical.”).

See 17 U.S.C. § 506(a), as amended by No Electronic Theft Act of 1997, Pub. L. No. 105-147, 111 Stat. 2678 (1997).

See Robert T. Baker, Finding a Winning Strategy Against the MP3 Invasion: Supplemental Measures the Recording Industry

Must Take to Curb Online Piracy, 8 U.C.L.A. ENT. L. REV. 1, 3–4 (2000). Congress sought to address any economic threat

posed by such low-level consumer copying by levying a tax on blank media in order to compensate rightsowners for

the lost sales resulting from these reproductions, but the levy did not apply to hard drives or other digital storage

devices. See Audio Home Recording Act, Pub. L. No. 102-563, 106 Stat. 4237 (1992).

See NICHOLAS NEGROPONTE, BEING DIGITAL 58 (1995) (“In the digital world, not only is the ease [of copying] at issue,

but also the fact that the digital copy is as perfect as the original and, with some fancy computing, even better.”); see also

Authors Guild, Inc., Comments Submitted in Response to the U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at

3 (Apr. 1, 2016) (“Authors Guild Initial Comments”) (“Congress acknowledged the need for protection against digital

piracy in the Internet age, due to the ease of copying and distributing perfect copies.”); Independent Film & Television

Alliance (“IFTA”), Comments Submitted in Response to the U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2

(Apr. 1, 2016) (“IFTA Initial Comments”) (“Congress[] recogni[zed] that the same innovative advances in technology

that would expand opportunities to reproduce and disseminate content could also facilitate exponential growth in

Sherman, Senior Executive Vice President and General Counsel of the Recording Industry Association of America

(“RIAA”)) (“Songs by artists such as Mariah Carey, the Rolling Stones, the Police, Sheryl Crow—they are all available

for download in near CD quality and they are all unauthorized.”); Michael J. Meurer, Price Discrimination, Personal Use

and Piracy: Copyright Protection of Digital Works, 45 BUFF. L. REV. 845, 846 (1997) (“Publishers prefer that each user of a

digital work purchase an original. Users often find it is convenient and economical to purchase a single original and

share it within their social group . . . . All publishers worry about pirates making cheap and precise digital copies and

easily transmitting the copies throughout the world via the Internet.”).

U.S. Copyright Office Section 512 Report

activities

with the need to minimize their own liability for copyright infringement.

The OSPs’

concerns stemmed in part from several cases in the early- to mid- 1990s in which courts

concluded that OSPs could, in at least some circumstances, be liable for infringing activity by

their users.

One of the earliest of these cases, Playboy Enterprises, Inc. v. Frena, involved an

operator of a computer bulletin board service to which a subscriber uploaded the plaintiff’s

copyrighted photographs.

Although the operator stated that he removed the photographs as

soon has he became aware of the matter, and subsequently monitored the service to prevent

further uploads, the court found him directly liable for infringing the plaintiff’s rights to publicly

distribute and display copies of its works.

The court held that “[i]t does not matter that [the

operator] may have been unaware of the copyright infringement,” as “[i]ntent to infringe is not

needed to find copyright infringement.”

Two years later in Religious Technology Center v. Netcom On-line Communication Services,

Inc., copyright holders sued both the operator of an online bulletin board service and the service’s

A similar tension, between balancing the ability to restrict access to certain content without making the OSP legally

liable as a publisher for a user’s content, led to the passage, a few years before the DMCA, of section 230 of the

Communication Decency Act. See 47 U.S.C. § 230; S. REP. NO. 104-230, at 194 (1996) (“One of the specific purposes of

this section is to overrule Stratton-Oakmont v. Prodigy and any other similar decisions which have treated such providers

and users as publishers or speakers of content that is not their own because they have restricted access to objectionable

material.”).

See CTIA, Comments Submitted in Response to the U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 4 (Apr.

1, 2016) (“CTIA Initial Comments”) (“Congress recognized that the very nature of a service provider’s day-to-day

activities (e.g., transmitting, hosting, storing, caching, an directing) could subject it to potential copyright infringement

liability for the acts of its users and other third parties.”); EFF Initial Comments at 2 (“Congress correctly understood

that the application of ambiguous copyright doctrines to new Internet technologies would put service providers in an

impossible position.”).

While copyright is generally a strict liability statute, OSPs were particularly concerned that they could be subject to

direct, in addition to indirect or secondary, forms of copyright infringement liability. Secondary liability doctrines

enable copyright owners to bring claims against third parties that have some relationship to persons who themselves

commit acts of infringement (i.e., “direct” infringers). The “dance hall” cases provide commonly cited examples of

vicarious liability in the pre-internet context. The cases “are legion which hold the dance hall proprietor liable for the

infringement of copyright resulting from the performance of a music composition by a band or orchestra whose

activities provide the proprietor with a source of customers and enhanced income. He is liable whether the bandleader

is considered, as a technical matter, an employee or an independent contractor, and whether or not the proprietor has

knowledge of the compositions to be played or any control over their selection.” Shapiro, Bernstein & Co. v. H.L. Green

Co., 316 F.2d 304, 307 (2d Cir. 1963) (holding that a store owner that leased floor space to a phonograph record

concessionaire was liable for the concessionaire’s sales of “bootleg” records due to the store owner’s receipt of a portion

of the sales despite the absence of actual knowledge of infringement); see also, e.g., Famous Music Corp. v. Bay State

Harness Horse Racing & Breeding Ass’n, Inc., 554 F.2d 1213 (1st Cir. 1977); Dreamland Ball Room, Inc. v. Shapiro, Bernstein &

Co., 36 F.2d 354 (7th Cir. 1929); KECA Music, Inc. v. Dingus McGee’s Co., 432 F. Supp. 72 (W.D. Mo. 1977).

Frena, 839 F. Supp. at 1554.

Id. at 1559.

Id. The Frena decision has been criticized on the ground that the court failed to consider whether the operator was the

party who should be deemed to have engaged in the unauthorized distribution and display—a required showing for

direct liability. See 4 MELVILLE B. NIMMER & DAVID NIMMER, NIMMER ON COPYRIGHT § 12B.01[A][1] (2017).

U.S. Copyright Office Section 512 Report

internet access provider, Netcom, based on a subscriber’s posting of allegedly infringing content

to the bulletin board.

The court found that neither the bulletin board service nor Netcom could

be directly or vicariously liable for the infringement, but allowed claims for contributory

infringement against both defendants to move forward. As for Netcom, the court found that it

may have had sufficient knowledge of the user’s infringing postings and sufficient ability to

prevent further damage to the plaintiffs’ copyrighted works to satisfy the requirements for

contributory liability.

A year after the Netcom decision, the court in Sega Enterprises Ltd. v. MAPHIA found the

operator of a bulletin board service liable for contributory infringement where it facilitated and

solicited the uploading and downloading of infringing copies of the plaintiff’s video games.

The

court concluded that the operator’s participation in his users’ activities—including “actively

solicit[ing] users to upload unauthorized games, . . . provid[ing] a road map . . . for easy

identification” of games available for download, and “offer[ing] copiers for sale to facilitate

playing the downloaded games”—established a prima facie case of contributory copyright

infringement.

These case law developments raised significant questions as to the scope of OSPs’

potential liability for infringement committed by users of their systems, with some OSPs fearing

the prospect of being “sued out of existence for involvement in purportedly aiding copyright

infringement.”

In response to these concerns by OSPs, as well as broader concerns over the integration of

developing computer technologies into the existing information infrastructure, the United States

began to consider possible updates to the copyright laws to address infringement over the

internet in 1993, when the Clinton Administration established the Information Infrastructure Task

Force (“IITF”).

In 1995, the IITF’s Working Group on Intellectual Property Rights issued the

report Intellectual Property and the National Information Infrastructure, which examined the

application of existing copyright law in the online context and recommended a number of

legislative changes. Many of the changes proposed by the IITF were less favorable for OSPs than

Netcom, 907 F. Supp. at 1365–66.

Id. at 1374–75.

Sega Enters., Ltd. v. MAPHIA, 948 F. Supp. 923, 927 (N.D. Cal. 1996).

Id. at 933.

4 NIMMER ON COPYRIGHT, § 12B.01[C][1]. See also S. REP. NO. 105-190, at 8 (1998) (“At the same time, without

clarification of their liability, service providers may hesitate to make the necessary investment in the expansion of the

speed and capacity of the Internet.”); H.R. REP. NO. 105-551, pt. 1, at 11 (1998) (“While several judicially created

doctrines currently address the question of when liability is appropriate, providers have sought greater certainty

through legislation as to how these doctrines will apply in the digital environment.”).

S. REP. NO. 105-190, at 2 (1998).

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the provisions that would later be enacted as part of the DMCA.

Commonly known as the

“White Paper,” the report concluded that “the best policy is to hold the service provider liable”

for infringing activity facilitated by its services.

It argued that the market should be allowed to

freely regulate such behavior, which would create incentives for online services providers to

“make their subscribers more of aware of copyright law” through the implementation of

preventative measures against infringement.

That same year, legislation to implement these

proposals was introduced in Congress, but it ultimately stalled in part due to a failure to reach

stakeholder agreement on “the contentious issue of the scope of liability of service providers for

the infringing acts of their users.”

During the same period, similar efforts took place at the international level under the

auspices of the World Intellectual Property Organization (“WIPO”). In the early 1990s, WIPO

member countries, including the United States, began formal consideration of possible changes to

the international copyright treaty framework to respond to emerging digital technologies.

That

work led to the December 1996 adoption of two new treaties, collectively known as the “WIPO

Internet Treaties.” The WIPO Copyright Treaty (“WCT”)

updated the protections for authors

established by the Berne Convention for the Protection of Literary and Artistic Works to reflect

the needs of the digital age,

while the WIPO Performances and Phonograms Treaty (“WPPT”)

established new protections for performers and producers of phonograms (i.e., sound recordings).

Both treaties provided protections for new anti-circumvention technologies

and rights

management information,

but neither included specific obligations concerning service provider

INFO. INFRASTRUCTURE TASK FORCE, INTELLECTUAL PROPERTY AND THE NATIONAL INFORMATION INFRASTRUCTURE: THE

REPORT OF THE WORKING GROUP ON INTELLECTUAL PROPERTY RIGHTS (1995), https://files.eric.ed.gov/fulltext/ED387135.pdf

(the “White Paper”).

White Paper at 117.

White Paper at 124.

S. REP. NO. 105-190, at 4 (1998); see also NII Copyright Protection Act of 1995, H.R. 2441, 104th Cong. (1995); NII

See SAM RICKETSON & JANE C. GINSBURG, INTERNATIONAL COPYRIGHT AND NEIGHBORING RIGHTS: THE BERNE CONVENTION

AND BEYOND ¶¶ 4.15–19, at 143-49 (2d ed. 2006).

WIPO Copyright Treaty, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 121 (“WCT”).

Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised July 24, 1971, and as

amended Sept. 28, 1979, S. TREATY DOC. NO. 99-27, 1161 U.N.T.S. 3 (1986) (“Berne Convention”).

WIPO Performances and Phonograms Treaty, Dec. 20, 1996, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 203 (“WPPT”).

The U.S. Copyright Office completed the Section 1201 Study in 2017 to assess the operation of section 1201 of title 17,

which addresses these technologies. Enacted as part of the DMCA, section 1201 prohibits the circumvention of

technological measures employed by or on behalf of copyright owners to protect access to their works (also known as

“access controls”), as well as the trafficking in technology or services that facilitate such circumvention. It also

prohibits trafficking in technologies or services that facilitate circumvention of technological measures that protect the

exclusive rights granted to copyright owners under title 17. See generally SECTION 1201 OF TITLE 17.

In 2019, the U.S. Copyright Office published its report on moral rights, which included an analysis of the rights

management information provisions of section 1202. See U.S. COPYRIGHT OFFICE, AUTHORS, ATTRIBUTION, & INTEGRITY:

U.S. Copyright Office Section 512 Report

liability. During the diplomatic conference for the WIPO Internet Treaties, the issue of service

provider liability was raised but not considered ripe for adoption of a normative rule in a treaty.

B. Congress Sought to Achieve a Balance with the DMCA

After the President forwarded the WIPO Internet Treaties to the Senate for advice and

consent to ratification, Congress introduced several bills to implement the Treaties’ provisions

regarding anti-circumvention technologies and protection of rights management information.

This legislation was premised on the assumption that existing U.S. copyright law was largely

consistent with the treaties’ other obligations.

Contemporaneous with the WIPO Internet

Treaties bills, Congress also introduced legislation addressing the potential liability of OSPs.

Many stakeholders, including those representing creators, the technological and

telecommunications industries, and educational institutions, argued that uncertainty resulting in

protracted litigation to determine who is liable for online infringement by users was not a

sustainable business practice, and should be resolved by legislation.

Under the oversight of the

Senate Judiciary Committee and the Subcommittee on Courts and Intellectual Property of the

EXAMINING MORAL RIGHTS IN THE UNITED STATES 83–99 (2019), https://www.copyright.gov/policy/moralrights/full-

report.pdf. Rights management information includes information conveyed in connection with a work, such as the title

or other information identifying the work, the name of or other identifying information of the author of the work, the

name of or other identifying information of the copyright owner of the work, and terms and conditions for use of the

work. Enacted as part of the DMCA, section 1202 of title 17 prohibits the intentional removal or alteration of

“copyright management information.” See 17 U.S.C. § 1202(b).

The issue was addressed only in an agreed statement accompanying the WCT, which provided that “the mere

provision of physical facilities for enabling or making a communication does not in itself amount to a communication

within the meaning of this Treaty or the Berne Convention.” WCT, S. TREATY DOC. NO. 105-17, 2186 U.N.T.S. 121 (1996),

Agreed Statement Concerning Art. 8, at 9 n.8. This agreed statement was included as the result of lobbying by

organizations representing OSPs and telecommunication companies who wanted to include in the text of the WIPO

Internet Treaties some guarantees concerning the limitation of liability for infringement committed by their users. See

MIHÁLY FICSOR, THE LAW OF COPYRIGHT AND THE INTERNET: THE 1996 WIPO TREATIES, THEIR INTERPRETATION AND

IMPLEMENTATION, § C8.24, at 509 (2002).

WIPO Copyright and Performances and Phonograms Treaty Implementation Act of 1997, S. 1121, 105th Cong. (1st

Sess. 1997); Digital Millennium Copyright Act, H.R. 2281, 105th Cong. (1st Sess. 1997); Digital Copyright Clarification

and Technology Education Act of 1997, S. 1146, 105th Cong. (1st Sess. 1997); Digital Era Copyright Enhancement Act,

H.R. 3048, 105th Cong. (1st Sess. 1997).

S. REP. NO. 105-190, at 65 (1998); see also H.R. REP. NO. 105-551, pt. 1, at 9–10 (1998) (“The treaties do not require any

change in the substance of copyright rights or exceptions in U.S. law. They do, however, require two technological

adjuncts to the copyright law, intended to ensure a thriving electronic marketplace for copyrighted works on the

Internet.”).

On-Line Copyright Liability Limitation Act, H.R. 2180, 105th Cong. (1st Sess. 1997); On-Line Copyright Infringement

Liability Limitation Act, H.R. 3209, 105th Cong. (2nd Sess. 1998).

See Senate Copyright Infringement Liability Hearing, 105th Cong. 98 (responses of George Vradenburg III to questions for

the record from Sen. Leahy); House WCT Implementation Act Hearing, 105th Cong. 87 (written statement of Roy Neel,

U.S. Telephone Association).

U.S. Copyright Office Section 512 Report

House Judiciary Committee, these stakeholders led the negotiations for provisions addressing

service provider liability and the use of copyrighted works on the internet.

In 1998, Congress passed, and the President signed, the DMCA, which included

provisions to implement the WIPO Internet Treaties and to clarify service provider liability in the

context of the internet and infringing works.

Title II of the DMCA, separately titled the “On-

Line Copyright Infringement Liability Limitation Act,” added section 512 to title 17. The Senate

Judiciary Committee Report on the legislation notes that although the latter issue “is not

expressly addressed in the actual provisions of the WIPO treaties, the Committee is sympathetic

to the desire of . . . service providers to see the law clarified in this area.”

As detailed below, the

new section created a “safe harbor” framework under which OSPs can obtain a limitation on

liability for infringement occurring on their systems by satisfying certain statutory conditions,

generally consisting of implementing measures to expeditiously address infringing activity.

While encouraging OSPs to continue the growth and development of internet services, Congress

simultaneously intended these provisions to encourage creators “to make their works available to

legitimate consumers in the digital environment” by “protecting intellectual property rights.”

With these copyright law amendments, Congress “believe[d] [that] it [had] appropriately

balanced the interests of content owners, on-line and other service providers, and information

users in a way that will foster the continued development of electronic commerce and the growth

of the Internet.”

See Senate Copyright Infringement Liability Hearing, 105th Cong. 3 (statement of Chairman Sen. Orrin G. Hatch) (“It is

my hope that at the very least we can begin a productive dialog wherein innovative solutions are considered and

agreed to so that an appropriate balance can be struck among the property interests of content providers, the desire for

a predictable and fair liability scheme for service providers, and the public’s desire and need to access information.”).

Pub. L. No. 105-304, 112 Stat. 2860 (1998). Title I of the DMCA, entitled the WIPO Copyright and Performances and

Phonograms Treaties Implementation Act of 1998, added a new Chapter 12 to Title 17, which provides copyright

owners with protections against the circumvention of technological protection measures used to control access to or use

of their works, as well as instituting protections for copyright management information. 112 Stat. at 2863–77 (codified

at 17 U.S.C. §§ 1201–1205); see generally SECTION 1201 OF TITLE 17. Title III, the Computer Maintenance Competition

Assurance Act, amended section 117 to clarify that it is not infringement for the owner or lessee of a machine to make

or authorize the making of a copy of a computer program if the copy is made solely by virtue of activating the machine

for purposes of maintenance and repair, and certain additional requirements are met. 112 Stat. at 2886–87 (codified at

17 U.S.C. § 117(c)). Title IV contained miscellaneous provisions relating to the duties and functions of the Register of

Copyrights, ephemeral recordings of digital broadcasts, exemptions for the preservation activities of libraries and

archives in the digital environment, statutory licenses for making ephemeral recordings and transmissions of digital

sound recordings, and the assumption of contractual obligations relating to motion picture collective bargaining

agreements. 112 Stat. at 2887–2905 (codified in scattered sections of 17 U.S.C.). Title V, the Vessel Hull Design

Protection Act, added a new Chapter 13 to Title 17, which provides a sui generis form of protection for boat hull designs.

112 Stat. at 2905–18 (codified at 17 U.S.C. §§ 1301–1332).

S. REP. NO. 105-190, at 19 (1998).

Pub. L. No. 105-304, 112 Stat. 2877–86 (1998).

H.R. REP. NO. 105-551, pt. 2 at 23 (1998).

H.R. REP. NO. 105-551, pt. 2 at 21 (1998).

U.S. Copyright Office Section 512 Report

Congress opted for this approach in lieu of “embarking upon a wholesale clarification of

[secondary liability] doctrines,” believing it preferable to leave the law in that area “in its

evolving state.”

As the House Commerce Committee explained:

[N]ew Section 512 does not define what is actionable copyright infringement in the on-line

environment, and does not create any new exceptions to the exclusive rights under

liability specified in the bill, the service provider is not necessarily an infringer; liability in

these circumstances would be adjudicated based on the doctrines of direct, vicarious or

contributory liability for infringement as they are articulated in the Copyright Act and in

the court decisions interpreting and applying that statute, which are unchanged by new

Section 512 . . . . New Section 512 simply defines the circumstances under which a service

provider, as defined in this new Section, may enjoy a limitation on liability for copyright

infringement.

The Senate Report notes that “[i]n the ordinary course of their operations service providers must

engage in all kinds of acts that expose them to potential copyright infringement liability.”

Thus,

“without clarification of their liability, service providers may hesitate to make the necessary

investment in the expansion of the speed and capacity of the Internet.”

By providing OSPs with

greater certainty regarding their copyright infringement liability, Congress intended section 512

to “ensure[] that the efficiency of the Internet will continue to improve and that the variety and

quality of services on the Internet will expand” from the purview of a limited number of

hobbyists to a “thriving electronic marketplace.”

Section 512 accordingly was aimed at

“attract[ing] the substantial investments necessary to continue the expansion and upgrading of

the Internet.”

At the same time, Congress intended section 512 to serve the needs of copyright owners

by protecting their legitimate interests against the threat of rampant, lower-barrier infringement

by the users of good-faith OSPs. Congress specifically excluded from the new safe harbor

framework “pirate directories” or other piracy-focused websites where unauthorized works are

downloaded or transmitted.

Section 512, coupled with the technical protection measures

provisions of section 1201, sought to provide protection, and thereby encouragement, for

S. REP. NO. 105-190, at 19 (1998).

H.R. REP. NO. 105-551, pt. 2 at 64 (1998).

S. REP. NO. 105-190, at 8 (1998).

S. REP. NO. 105-190, at 2 (1998); H.R. REP. NO. 105-551, pt. 2 at 23 (1998).

144 CONG. REC. 24,466 (1998) (statement of Sen. Orrin G. Hatch).

See S. REP. NO. 105-190, at 48 (1998) (internal quotations omitted); H.R. REP. NO. 105-551, pt. 2 at 58 (1998).

U.S. Copyright Office Section 512 Report

mediate among various stakeholders’ concerns, Congress also acknowledged the need to include

certain provisions to protect consumer privacy and free speech interests: a provision stating that

ISPs are not obligated to monitor their systems, and a counter-notice process for restoring access

to erroneously removed context.

The legislative history of section 512 thus acknowledges two key components of the

balance that Congress sought to achieve:

the assurance that good faith actions to address

internet piracy by OSPs would qualify for safe harbors, providing “greater certainty” regarding

their liability,

and the preservation of “strong incentives for service providers and copyright

owners to cooperate to detect and deal with copyright infringements that take place in the digital

networked environment,” providing creators with viable remedies against online infringement.

C. General Overview of Section 512

Section 512 provides safe harbors from infringement liability for OSPs that are engaged in

qualifying activities and meet certain eligibility requirements. The following section provides an

overview of the particular safe harbors and their requirements, beginning with a brief discussion

about the various secondary liability doctrines that underpin an OSP’s potential liability for

allegedly infringing content.

1. Secondary Liability

Because OSPs generally provide the means for their users to upload and distribute

content, rather than provide the content themselves, content owners are more likely to claim that

the OSP is secondarily liable, instead of directly liable, for copyright infringement.

Secondary

See H.R. REP. NO. 105-551, pt. 1 at 12 (1998). See also PK Initial Comments at 2.

See, e.g., Google Inc., Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 1

(Apr. 1, 2016) (“Google Initial Comments“) (“Congress intended that the DMCA safe harbors serve two objectives: (1)

to stimulate investment in an Internet economy that would otherwise be discouraged by overbroad copyright

infringement liability; and (2) to provide remedies against online infringement while facilitating collaboration between

online service providers (‘OSPs’) and rightsholders.”); Kernochan Center for Law, Media and the Arts Columbia Law

School, Comments Submitted in Response to the U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Apr. 1,

2016) (“Kernochan Initial Comments”) (“Congress hoped that section 512 would strike a balance between copyright

owners and ISPs, allowing for the detection and removal of copyrighted works posted online without the copyright

holder’s permission, while also providing ISPs greater certainty regarding their exposure to copyright infringement

lawsuits.”).

H.R. REP. NO. 105-551, pt. 2 at 49–50 (1998).

H.R. REP. NO. 105-796, at 72 (1998) (Conf. Rep.); see also Universal Music Group (“UMG”), Comments Submitted in

Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 3 (Apr. 1, 2016) (“UMG Initial Comments”)

(“Congress also expected that copyright owners and service providers would work together to share the burden of

identifying and preventing infringement.”).

But see Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 595 (S.D.N.Y. 2018) (holding that a website may

face direct liability under particular circumstances for embedding a copyrighted work in a website; declining to apply

the “server test” (described infra n.492)).

U.S. Copyright Office Section 512 Report

liability doctrines enable copyright owners to bring claims against third parties that have some

relationship to persons who themselves commit infringement (i.e., “direct” infringers). As the

Supreme Court has noted, “[a]lthough ‘the Copyright Act does not expressly render anyone liable

for infringement committed by another,’ these doctrines of secondary liability emerged from

common law principles and are well established in the law.”

Generally, courts have relied upon

three forms of secondary liability: contributory infringement, vicarious liability, and inducement

of infringement. A person may be liable for contributory infringement if he or she has

“knowledge of the infringing activity, [and] induces, causes or materially contributes to the

infringing conduct of another.”

A court may find a person vicariously liable if he or she

“profit[s] from direct infringement while declining to exercise a right to stop or limit it.”

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., the Supreme Court imported the doctrine of

inducement of infringement from patent law, holding that “one who distributes a device with the

object of promoting its use to infringe copyright, as shown by clear expression or other

affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by

third parties.”

As noted above, prior to passage of the DMCA, courts had found OSPs

potentially liable under either direct or contributory infringement theories; however, as website

management became increasingly automated, it became more difficult to apply the knowledge

Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005) (“Grokster”) (internal citation omitted)

(quoting Sony Corp. of Am. v. Universal City Studios, 464 U.S. 417, 434 (1984) (“Betamax”)).

A&M Records, Inc. v. Napster, 239 F.3d 1004, 1019 (9th Cir. 2001) (quoting Gershwin Publ’g Corp. v. Columbia Artists

Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir. 1971)).

Grokster, 545 U.S. at 930.

Grokster, 545 U.S. 913, 936–37 (2005). Courts have divided over whether the inducement doctrine articulated in

Grokster is properly understood as a standalone theory of secondary liability or as merely a subcategory of contributory

infringement. Compare, e.g., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1031–33 (9th Cir. 2013)

(“Veoh IV”) (inducement analyzed as a separate claim from contributory infringement), and Abbey House Media, Inc. v.

Apple Inc., 66 F. Supp. 3d 413, 419–22 (S.D.N.Y. 2014) (same), and Sarvis v. Polyvore, Inc., No. Civ. A. 12-12233, 2015 U.S.

Dist. LEXIS 39448, at *23–*28 (D. Mass. Mar. 2, 2015) (same), with, e.g., Columbia Pictures Indus., Inc. v. Fung, 710 F.3d

1020, 1029–31 (9th Cir. 2013), cert. denied sub nom., Fung v. Colombia Pictures Indus., Inc., 571 U.S. 1007 (2013) (“Fung”)

(treating inducement as a subcategory of contributory infringement), and Io Grp., Inc. v. Jordon, 708 F. Supp. 2d 989, 999

(N.D. Cal. 2010) (“[T]he Court finds that [inducement] is not a separate cause of action but is more properly considered

a species of contributory infringement.”), and KBL Corp. v. Arnouts, 646 F. Supp. 2d 335, 345–46 (S.D.N.Y. 2009) (“The

plaintiff has not identified any legal authority indicating that the Copyright Act provides for an inducement to infringe

claim that is distinct from contributory infringement. Indeed, the case law supports the opposite conclusion.”), and Roof

& Rack Prod., Inc. v. GYB Inv'rs, LLC, No. 13-80575-CV, 2014 WL 3183278, at *5 (S.D. Fla. July 8, 2014) (“[I]nducement is

but a subset of contributory copyright infringement.”). The Nimmer on Copyright treatise argues that the former reading

is preferable:

[I]nsofar as inducement plays a role in contributory infringement, a plaintiff who would hold a defendant culpable

must show that the latter’s conduct actually induced infringement. By contrast, it suffices for a plaintiff invoking

Grokster’s innovation to demonstrate through objective evidence that the defendant harbored a subjective intent to

induce infringement, even if no such inducement actually occurred—albeit there still must be direct infringement for

liability to arise.

3 NIMMER ON COPYRIGHT § 12.04[A][4][b].

U.S. Copyright Office Section 512 Report

requirements for the contributory and inducement theories to a system where the interface

between OSPs and users was increasingly mediated by technology.

2. OSPs and Safe Harbors

There are four distinct safe harbors, detailed in sections 512(a), (b), (c), and (d). These safe

harbors are available when a “service provider”

engages in one or more of the following

corresponding activities: (a) serving as a conduit for the automatic online transmission of

material as directed by third parties (“mere conduit”);

(b) temporarily storing material that is

being transmitted automatically over the internet from one third party to another (“caching”); (c)

storing material at the direction of a user on an OSP’s system or network (“hosting”); or (d)

referring or linking users to online sites using information location tools, such as a search engine

(“linking”).

An OSP’s eligibility for a given safe harbor depends on the activity. For example, a

mere conduit ISP may be eligible for the section 512(a) safe harbor for its conduit activities and

may separately be eligible for the section 512(c) safe harbor for hosting websites, but those

limitations on liability would be distinct and carry with them separate statutory requirements.

The legislative history provides some insight into the specific types of OSPs that Congress

believed at the time would qualify for each respective safe harbor. Congress intended to exclude

from the mere conduit safe harbor services that exercise “the editorial function of determining

what material to send, or the specific sources of material to place on-line” or those that go beyond

making “transient copies that occur en route.”

100

For caching OSPs, Congress intended to cover

technology that serves “as an intermediary between the originating site and the ultimate user” for

the “caching” or temporary storage of material, in order to “increase network performance and to

Section 512(k) separately provides two definitions for “service provider.” An “entity offering the transmission,

routing, or providing of connections for digital online communications, between or among points specified by a user, of

material of the user’s choosing, without modification to the content of the material as sent or received” applies to

service providers that qualify as section 512(a) mere conduits. 17 U.S.C. § 512(k)(1)(A). The second definition more

broadly applies to other service providers as well as mere conduits: “a provider of online services or network access, or

the operator of facilities therefor.” 17 U.S.C. § 512(k)(1)(B).

Mere conduit service providers will be referred to herein as “ISPs.”

Mere conduit, caching, hosting, and linking OSPs will be collectively referred to herein as “OSPs.” These categories

are not mutually exclusive; it is possible for an OSP to offer products that fall into more than one category. For

example, Alphabet offers Google search services (accompanied by web cashing of some indexed websites) and Blogger

and YouTube hosting services, along with other services like advertising networks that do not easily fall into any of the

section 512 categories. Similarly, some current web service models blur the lines between hosting and mere conduit

services.

Congress also carved out a separate limitation on liability for nonprofit and educational institutions acting as OSPs,

providing that knowledge of infringing activity by faculty members and graduate students will not be imputed to the

institution under certain circumstances. See 17 U.S.C. § 512(e). For a discussion of the importance of this carve out, see

supra nn.581–83 and accompanying text.

100

H.R. REP. NO. 105-551, pt. 2, at 51 (1998).

U.S. Copyright Office Section 512 Report

reduce network congestion generally.”

101

Congress mentioned examples of storage OSPs under

section 512(c) as those that “provid[e] server space for a user’s web site, for a chatroom, or other

forum in which material may be posted at the direction of users.”

102

Congress also cited specific

examples of service providers that provide “information location tools” under section 512(d),

including directories, search engines, “list[s] of recommended sites,” “pointer[s] that stand[] for

an Internet location or address,” and “hypertext link[s] which allow users to access material

without entering its address.”

103

3. Limitations on Relief and Eligibility for Safe Harbors

An OSP that meets the relevant eligibility requirements for one or more of the safe harbors

is not liable for monetary relief and is subject only to limited injunctive relief for infringing

activities conducted on or through its system or network within the scope of the applicable safe

harbor(s).

104

In the case of an OSP that qualifies for a safe harbor under sections 512(b), (c), or (d),

this injunctive relief is limited to: (1) disabling access to infringing material; (2) terminating the

infringer’s account(s); and (3) providing such other relief as may be necessary to address

infringement at a particular online location; provided, however, that the relief is “the least

burdensome [form of relief] to the service provider.”

105

For an ISP that qualifies for the section

512(a) safe harbor, the court may order only the termination of an infringer’s account(s) or the

blocking of access to a “specific, identified, online location outside the United States.”

106

In order to qualify for the limitation on liability provided under sections 512(a), (b), (c), or

(d), the OSP must comply with certain threshold requirements. Two of these requirements apply

to all four safe harbors: (1) the adoption and reasonable implementation of a policy to terminate

“repeat infringers;”

107

and (2) the accommodation of and non-interference with “standard

technical measures’’ that identify or protect copyrighted works and have been developed

according to broad consensus between copyright owners and OSPs, to the extent any such

measures exist.

108

An ISP that acts as a mere conduit for online transmissions qualifies for the

limitation on liability provided by section 512(a) if the provider satisfies these two threshold

101

H.R. REP. NO. 105-551, pt. 2, at 52 (1998).

102

H.R. REP. NO. 105-551, pt. 2, at 53 (1998).

103

H.R. REP. NO. 105-551, pt. 2, at 56–57 (1998).

104

17 U.S.C. §§ 512(a)–(d).

105

17 U.S.C. § 512(j)(1)(A).

106

17 U.S.C. § 512(j)(1)(B).

107

An OSP must adopt, “reasonably implement[],” and inform subscribers and account holders of a policy “that

provides for the termination in appropriate circumstances of . . . repeat infringers.” 17 U.S.C. § 512(i)(1)(A).

108

17 U.S.C. §§ 512(i)(1)(B), (i)(2).

U.S. Copyright Office Section 512 Report

requirements, without having to participate in a notice-and-takedown process, as described

below.

4. Notice-and-Takedown Process

OSPs seeking protection under the safe harbors in sections 512(b), (c), or (d), must, in

addition to the section 512(i) requirements, maintain a compliant notice-and-takedown process by

responding expeditiously to remove or disable access to material claimed to be infringing upon

receipt of proper notice from a copyright owner or the owner’s authorized agent.

109

The OSP

must in good faith remove, or disable access to, the allegedly infringing content and take

reasonable steps to promptly notify the user.

110

An OSP seeking to avail itself of the section 512(c)

safe harbor for user-posted content, section 512(b) for caching activities, or section 512(d) for

search activities is further required to designate an agent to receive notifications of claimed

infringement and provide contact information for the agent on its website and to the Copyright

Office, which, in turn, is to maintain a public directory of such agents. Although sections 512(b)

and (d) do not themselves expressly require OSPs to designate an agent to receive notifications of

infringement, they both incorporate the notice provisions of section 512(c)(3), which require that

notices be sent to ‘‘the designated agent of the service provider.’’ The statutory scheme thus

indicates that OSPs operating under section 512(b) and/or (d) would also have to designate agents

to receive takedown notices.

111

a) Takedown Notice

The statute mandates that a copyright owner’s takedown notice must include

“substantially the following”: (i) the signature of the copyright owner or an authorized agent (i.e.,

the “complaining party”); (ii) identification of the copyrighted work claimed to have been

infringed, or, if multiple works are on a single site, “a representative list of such works”; (iii)

identification of the infringing material or activity (or the reference or link to such material) and

“information reasonably sufficient” to permit the OSP to locate the material (or the reference or

link); (iv) contact information for the complaining party; (v) a statement that the complaining

party has “a good faith belief that use of the material in the manner complained of is not

authorized by the copyright owner, its agent, or the law”; and (vi) a statement that the

information in the notice is accurate and, under penalty of perjury, that the complaining party is

109

17 U.S.C. §§ 512(b)(2)(E), (c)(1)(C), (d)(3). The process for notification under the section 512(c) and (d) safe harbors is

set out in section 512(c)(3); the process differs somewhat under the section 512(b) safe harbor in that, in addition to

following the requirements of section 512(c)(3), the complaining party must also confirm that the content or link has

been removed or disabled by the originating site or that a court has ordered that it be removed or disabled. Id. §

512(b)(2)(E).

110

Id. §§ 512(g)(1)–(2). If the OSP does so, it will not be held liable for removal, even if the content is later found to be

non-infringing. Id.

111

See 17 U.S.C. §§ 512(b)(2)(E), (d)(3).

U.S. Copyright Office Section 512 Report

authorized to act on behalf of the copyright owner.

112

Under section 512(f), “[a]ny person who

knowingly materially misrepresents . . . that material or activity is infringing” in a takedown

notice can be held liable for any damages, including costs and attorneys’ fees, incurred by an

alleged infringer who is injured by the misrepresentation.

113

b) Knowledge and Financial Benefit

In addition to responding to takedown notices, OSPs that seek protection under the

section 512(c) and (d) safe harbors must also act expeditiously to remove or disable access to

material when they have “actual knowledge” of infringement or, in the absence of such actual

knowledge, when they have “aware[ness] of facts or circumstances from which infringing activity

is apparent”—the “awareness” standard often referred to as “red flag” knowledge.

114

But, while

OSPs are not free to ignore infringement of which they have actual or red flag knowledge, section

512 at the same time provides that an online entity has no duty to “monitor[] its service or

affirmatively seek[] facts indicating infringing activity, except to the extent consistent with a

standard technical measure.”

115

Finally, to qualify for the section 512(c) and (d) safe harbors, an OSP must not “receive a

financial benefit directly attributable to the infringing activity, in a case in which the OSP has the

right and ability to control such activity.”

116

The statutory financial benefit/right to control test

does not incorporate a knowledge element.

117

In addition to the general limitations on infringement liability, the statute outlines specific

protections for OSPs that remove material in response to takedown notices. Under section 512, an

OSP is not liable for “any claim based on the service provider’s good faith disabling of access to,

or removal of material claimed to be infringing or based on facts or circumstances from which

infringing activity is apparent”—even material not ultimately found to be infringing.

118

This

protection from liability does not apply to material removed pursuant to a takedown notice

unless the provider (i) takes reasonable steps to promptly notify the user who posted the material

that it has been removed and (ii) complies, as applicable, with the statutory counter-notification

process.

119

112

17 U.S.C. § 512(c)(3)(A)(i)–(vi).

113

17 U.S.C. § 512(f).

114

See 17 U.S.C. §§ 512(c), (d); see also, Capitol Records, LLC v. Vimeo LLC, 826 F.3d 78 (2d Cir. 2016); Viacom Int’l v.

YouTube, Inc., 676 F.3d 19 (2d Cir. 2012).

115

17 U.S.C. § 512(m)(1).

116

17 U.S.C. §§ 512(c)(1)(B), (d)(2).

117

See 17 U.S.C. §§ 512(c)(1)(B), (d)(2).

118

17 U.S.C. § 512(g)(1).

119

17 U.S.C. § 512(g)(2).

U.S. Copyright Office Section 512 Report

5. Counter-Notification

Section 512(g) allows a user whose content has been removed in response to a takedown

notice to submit a counter-notification to an OSP’s designated agent requesting that the content

be reposted, if the user believes that the content was improperly removed, such as due to the

OSP’s error or content posted pursuant to a valid license or another copyright exception or

limitation. The counter notice, like the initial notice, must be in writing and must include: (i) the

signature of the subscriber (i.e., the counter-notifying party); (ii) identification of the material that

was removed or to which access was disabled, as well as the location where it previously

appeared; (iii) a statement under penalty of perjury that the subscriber has a “good faith belief

that the material was removed or disabled as a result of mistake or misidentification of the

material to be removed or disabled”; and (iv) the subscriber’s contact information, as well as a

statement that the subscriber consents to the jurisdiction of the federal district court for the

relevant judicial district and agrees to accept service of process from the party who provided the

takedown notice (or that party’s agent).

120

Section 512(f) also applies to counter-notifications, providing that any person who

“knowingly materially misrepresents” that “material or activity was removed or disabled by

mistake or misidentification” may be held liable for monetary damages, including costs and

attorneys’ fees.

121

To preserve its safe harbor immunity, an OSP that receives a counter-notice

must then repost the content in question no fewer than 10 but no more than 14 business days after

receiving the counter notification, unless the OSP first receives notice from the party who

provided the takedown notice that a judicial action has been filed “seeking . . . to restrain the

subscriber from engaging in infringing activity relating to the material on the service provider’s

system or network.”

122

An OSP is not liable for reposting infringing content upon receipt of a

valid counter notification, in the absence of such a notice.

123

If the rightsholder files a lawsuit, the

content is not replaced and the user must mount a legal defense for their use.

124

III. POST-DMCA CHANGES TO THE ONLINE ECOSYSTEM

A. Technological Changes Since the 1990s Have Changed the Landscape in which

Section 512 Operates

Congress enacted the DMCA with a contemporary understanding of internet technology,

but the internet ecosystem has grown significantly in the past two decades. These technological

120

17 U.S.C. § 512(g)(3).

121

17 U.S.C. § 512(f).

122

17 U.S.C. § 512(g)(2)(C). This amount of time is presumably intended to provide enough time for the party alleging

infringement to file an infringement action in a federal court before the allegedly infringing material is put back online.

123

Id. §§ 512(g)(2)(C), (g)(4).

124

Id. § 512(g)(2)(C).

U.S. Copyright Office Section 512 Report

changes have altered the effectiveness of the DMCA statutory scheme, and were a major

motivator of the public Study that led to this Report. As the Office heard throughout this Report,

the internet of today is not the internet of 1998. That change is due, in part, to the DMCA, which

helped foster the growth of the internet.

125

But the internet’s maturity and evolution also have put

new stresses on the regime that Congress created.

At the time the DMCA was crafted and then enacted, the internet had only recently

evolved beyond the “walled gardens” of AOL and CompuServe.

126

Yahoo!, Amazon, and eBay

were each a few years old, and “social media,” to the extent it existed was mainly instant

messaging services, on-line dating sites, and Classmates.com.

127

There was no Facebook or

YouTube or Twitter; the first MP3 player had just been launched, and Napster, which popularized

peer-to-peer (“P2P”) file-sharing, would not exist until the following year.

128

Today, the internet

is a rich tapestry of social media sites and niche networked communities,

129

online retail giants

125

See, e.g., Amazon.com, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry

at 3 (Apr. 1, 2016) (“Amazon Initial Comments”) (“A key principle of both federal Internet policy and the DMCA is that

online service providers should not be required to police the activities of their users or make difficult legal

determinations about the nature of any particular content on the service provider’s system. Lawful services like

Amazon and other U.S. Internet companies could not have flourished without such a policy. This principle is crucial to

the growth of the Internet where today, a single service can facilitate real-time discourse among over three billion

worldwide users.”); BSA | The Software Alliance (“BSA”), Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry, at 3 (Apr. 1, 2016) (“BSA Initial Comments”) (“The DMCA’s balanced framework has

played a key role in catalyzing the explosive growth of the Internet as a medium for free expression and digital

commerce.”).

126

See Martin Hughes, Walled Gardens: The Past, Present & Future of How We Use the Internet, MEDIUM (May 3, 2016),

https://medium.com/@universityboy/the-return-of-walled-gardens-on-paywalls-the-public-and-the-publishers-

282e08e54669; AOL’s ‘Walled Garden,’ WALL ST. J. (Sept. 4, 2000, 11:57 PM),

https://www.wsj.com/articles/SB968104011203980910.

127

Jerry Yang and David Filo started what was to become Yahoo! in 1994. Dan Tynan, The Glory that Was Yahoo,

FASTCOMPANY (Mar. 21, 2018), https://www.fastcompany.com/40544277/the-glory-that-was-yahoo. Amazon.com

opened for business in 1995. Amazon Opens for Business, HISTORY.COM: THIS DAY IN HISTORY (July 27, 2019),

https://www.history.com/this-day-in-history/amazon-opens-for-business. Pierre Omidyar launched the site that would

later be rebranded as eBay in 1995; the millionth item was sold on eBay in 1997. Our History, EBAY ,

https://www.ebayinc.com/company/our-history; danah m. boyd & Nicole B. Ellison, Social Network Sites: Definition,

History, and Scholarship, 13 J. COMPUTER-MEDIATED COMM. 210, 214–15 (2007).

128

See, e.g., Richard Nieva, Ashes to Ashes, Peer to Peer: An Oral History of Napster, FORTUNE (Sept. 5, 2013),

https://fortune.com/2013/09/05/ashes-to-ashes-peer-to-peer-an-oral-history-of-napster/; David Kravets, 10 Years Later,

Misunderstood DMCA is the Law That Saved the Web, WIRED (Oct. 27, 2008), https://www.wired.com/2008/10/ten-years-

later/ (“Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large

part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul. A decade ago, when the

DMCA was enacted, these innovations were unheard of, embryonic or not yet conceived.”); Eliot Van Buskirk, Bragging

Rights to the World’s First MP3 Player, CNET (Jan. 25, 2005, 3:20 PM), https://www.cnet.com/news/bragging-rights-to-

the-worlds-first-mp3-player/ (discussing the MPMan’s launch in spring 1998); see generally REBECCA GIBLIN, CODE WARS:

10 YEARS OF P2P SOFTWARE LITIGATION (2011).

129

See Cal Newport, Thinkspot and the Rise of Long Tail Social Media (July 15, 2019), http://www.calnewport.com/blog/

2019/07/15/thinkspot-and-the-rise-of-long-tail-social-media/; Callum Booth, The Most Popular Social Media Networks Each

Year, Gloriously Animated, NEXT WEB (June 11, 2019), https://thenextweb.com/tech/2019/06/11/most-popular-social-

U.S. Copyright Office Section 512 Report

and e-commerce side businesses,

130

as well as an almost endless amount of music and audiovisual

entertainment from major studios and publishers, indie artists, and future stars.

131

Every day

countless new internet services join the mix. And new artists continue to find an audience

without having to first convince a third party that there is a demand for what they do.

132

The technological landscape also has shifted dramatically since the DMCA’s passage—

from dial-up, to fiber and WiFi, to the early stages of 5G.

133

Download times today are but a

fraction of what they were in 1998. A thirty-second movie clip would have taken thirty minutes

to download in 1998; today users with a the lowest tier of broadband connection (defined as a

minimum download speed of 25 Mbps) can download a 4 GB movie file in approximately twenty

minutes.

134

A four-minute song would have taken eighty minutes to download; today, it needs

about one second. Consumers have become accustomed to webpages loading near

media-networks-year-animated/ (charting the usage of the most popular social media sites from 2003 through 2018);

Andrew Perrin & Monica Anderson, Share of U.S. Adults Using Social Media, Including Facebook, Is Mostly Unchanged Since

2018, PEW RESEARCH CTR.: FACTTANK (Apr. 10, 2019), https://www.pewresearch.org/fact-tank/

2019/04/10/share-of-u-s-adults-using-social-media-including-facebook-is-mostly-unchanged-since-2018/ (reporting on

U.S. social media usage).

130

See, e.g., Adam Levy, The 7 Largest E-Commerce Companies in the World, THE MOTLEY FOOL (Aug. 23, 2019, 5:13 PM),

https://www.fool.com/investing/the-7-largest-e-commerce-companies-in-the-world.aspx; William Harris, Step-by-Step

You Can Turn Your Ecommerce Side Hustle Into a Real Company, ENTREPRENEUR (June 23, 2017),

https://www.entrepreneur.com/article/294919.

131

See, e.g., Rob Arcand, Streaming Now Accounts for 80 Percent of the Music Industry’s Overall Revenue, SPIN (Sept. 6, 2019),

https://www.spin.com/2019/09/music-streaming-80-percent-of-music-industry-overall-revenue/; Judy Berman, There's

Officially Too Much Netflix. What Happens Next?, TIME (Dec. 21, 2018, 9:29 AM), https://time.com/5484106/too-much-

netflix-content/; David Pierce, We’re Drowning in Content; Recommendations Are What We Need, WIRED (April 26, 2016, 1:00

PM), https://www.wired.com/2016/04/youtube-app-redesign-recommendations/.

132

Examples include Queen Naija, who hit No. 45 of the Billboard Hot 100 after she self-released the song “Medicine”

while an unsigned social media star, and E.L. James’s Fifty Shades of Grey series of best-selling books, which began as a

fan fiction ebook. See Tatiana Cirisano, How YouTube Vlogger Queen Naija's Viral Breakup Inspired Her Hot 100

Breakthrough, BILLBOARD (Apr. 18, 2018), https://www.billboard.com/articles/columns/hip-hop/8344128/queen-naija-

medicine-hot-100-youtube-breakup-interview; Hannah Ellis-Petersen, Fifty Shades of Grey: The Series That Tied

Publishing Up in Knots, THE GUARDIAN (June 18, 2015, 1:00 PM), https://www.theguardian.com/books/2015/jun/18/fifty-

shades-of-grey-the-series-that-tied-publishing-up-in-knots; Bethany Sales, Fifty Shades of Grey: The New Publishing

Paradigm, HUFFPOST (Apr. 18, 2013), https://www.huffpost.com/entry/fifty-shades-of-grey-publishing_b_3109547.

133

For a window into what it would be like to use 1997 internet technology twenty years later, see Brad Jones, What’s It

Like to Use AOL Dial-up Internet in 2017?, DIGITAL TRENDS (Apr. 1, 2017), https://www.digitaltrends.com/cool-tech/aol-

dial-up-a-relic-of-the-past/. See also Mike Murphy, You Can Now Browse the Web Like It’s 1999 Again, QUARTZ (Dec. 14,

2015), https://qz.com/572992/you-can-now-browse-the-web-like-its-1999-again/.

134

See Roger Bambino, How Long Does It Take to Download a Movie? Well, We Did Some Tests, TECHJAJA (Aug. 1, 2019),

https://techjaja.com/how-long-does-it-take-to-download-a-movie-well-we-did-some-tests/; David Anders, Internet Speed

Classifications: What’s Fast, What’s Slow and What is a Good Internet Speed?, ALLCONNECT (July 18, 2019),

https://www.allconnect.com/blog/internet-speed-classifications-what-is-fast-internet. The most recent 2018 data from

Ookla’s Speedtest.net shows that the average broadband user’s download speed was almost four times the minimum,

at 96.25 Mbps. Ookla, Fixed Broadband Speedtest Data: Q2–Q3 2018 United States, SPEEDTEST: REPORTS (Dec. 12, 2018),

https://www.speedtest.net/reports/united-states/2018/#fixed.

U.S. Copyright Office Section 512 Report

instantaneously and box office films streaming seamlessly; delays like buffering have become an

infrequent annoyance to most consumers, not a daily fact of life online.

135

Faster internet speeds

have made possible the dissemination of vast amounts of content via streaming—that in turn has

given a rise to new types of film and television studios and new means of consuming content.

Cloud computing, which allows software, services, and data storage to be accessed remotely, also

plays a critical role in today’s internet but was almost nonexistent for the general public in 1998.

136

At the same time that broadband has become much more accessible throughout the world,

internet use also has grown exponentially. In 1998, many Americans were still waking up to the

internet, entering the online world through the gateway of a free AOL trial compact disc arriving

in their physical mailbox.

137

Thirty-five percent of Americans adults had email, and 24% checked

it daily;

138

surfing the web was something many did in libraries and internet cafes.

139

Now, 81% of

Americans have internet on their phone (which more than half look at least several times an

hour), and 34% check their email “throughout the day”;

140

28% of Americans report being “almost

135

See Andrew Spaulding, I Used a 56K Modem for a Week and It Was Hell on Earth, GIZMODO (Mar. 23, 2015, 2:06 PM),

http://gizmodo.com/i-used-a-56k-modem-for-a-week-and-it-was-hell-on-earth-1693124620.

136

See Hannah Williams, The History of Cloud Computing: A Timeline of Key Moments from the 1960s to Now,

COMPUTERWORLD (Mar. 13, 2018, 2:00 AM), https://www.computerworld.com/article/3412271/the-history-of-cloud-

computing--a-timeline-of-key-moments-from-the-1960s-to-now.html; Keith D. Foote, A Brief History of Cloud Computing,

DATAVERSITY (June 22, 2017), https://www.dataversity.net/brief-history-cloud-computing/. One area, software as a

service (“SaaS”), has seen substantial growth in recent years. Worldwide public cloud service revenue is forecast to

growth from 145.3 billion dollars in 2017 to 278.3 billion dollars in 2021. See Natalie Gagliordi, Gartner Predicts SaaS

Revenues to Reach $85 Billion in 2019, ZDNET (Sept. 12, 2018, 2:46 PM), https://www.zdnet.com/article/gartner-predicts-

saas-revenues-to-reach-85-billion-in-2019/. The first SaaS company went public in 1998. See A SaaS History Lesson—The

First SaaS Company’s Exceptional Journey, TOMASZ TUNGUZ (Apr. 28, 2015), https://tomtunguz.com/the-first-saas-

company/.

137

See Jay Serafino, You’ve Got Mail: A History of AOL’s Free Trial CDs, MENTAL FLOSS (Oct. 14, 2016),

http://mentalfloss.com/article/87291/youve-got-mail-history-aols-free-trial-cds.

138

See PEW RESEARCH CNTR., THE INTERNET NEWS AUDIENCE GOES ORDINARY (1999), http://www.people-

press.org/1999/01/14/the-internet-news-audience-goes-ordinary/.

139

See Bryan Lufkin, The Weird, Sketchy History of Internet Cafes, GIZMODO (Nov. 20, 2015, 4:50 PM),

http://gizmodo.com/the-weird-sketchy-history-of-internet-cafes-1741978937; JOHN CARLO BERTOT & CHARLES R.

MCCLURE, THE 1998 NATIONAL SURVEY OF U.S. PUBLIC LIBRARY OUTLET INTERNET CONNECTIVITY: FINAL REPORT (1998),

http://surface.syr.edu/cgi/viewcontent.cgi?article=1123&context=istpub.

140

Matt Rosoff, People Either Check Email All the Time, or Barely at All, BUS. INSIDER (Aug. 17, 2015, 1:26 PM),

http://www.businessinsider.com/how-often-do-people-check-their-email-2015-8 (reporting that more than a third of

Americans check email more than 10 times a day); see also MONICA ANDERSON, MOBILE TECHNOLOGY AND HOME

BROADBAND 2019, PEW RESEARCH CTR. (2019), https://www.pewresearch.org/internet/2019/06/13/mobile-technology-and-

home-broadband-2019/ (reporting that 81 percent of American adults owned a smart phone in 2016, up from 35 percent

in 2011); Frank Newport, Most U.S. Smartphone Owners Check Phone at Least Hourly, GALLUP (July 9, 2015),

http://www.gallup.com/poll/184046/smartphone-owners-check-phone-least-hourly.aspx (“About half of U.S.

smartphone owners check their devices several times an hour or more frequently, including 11% who say they check it

every few minutes.”).

U.S. Copyright Office Section 512 Report

constantly” online.

141

Globally, internet access has grown from about 3.14% of the world in 1998

to over 50% today.

142

Internet piracy has evolved alongside these substantial gains in internet services, speed,

and access. The technology that allows copyright owners to distribute content directly to

consumers’ living rooms via streaming services also enables new forms of piracy: streaming of

unlicensed content and stream-ripping—that is, using software to make an unlicensed copy of

streamed content that would otherwise be licensed.

143

The cloud also presents new challenges for

combating piracy. Cyberlockers, for instance, enable a user to upload content—with or without

the copyright owner’s permission—that they can then access remotely or share with others;

cyberlockers, because they are not routinely indexed by search crawlers, can be much more

difficult for copyright owners to monitor for infringing activity than publicly searchable P2P

networks.

144

With the growth of internet use, some argue that the backbone of the section 512 safe

141

See Andrew Perrin & Madhu Kumar, About Three-in-Ten U.S. Adults Say They Are “Almost Constantly” Online, PEW

RESEARCH CTR.: FACTTANK (July 25, 2019), https://www.pewresearch.org/fact-tank/2019/07/25/americans-going-online-

almost-constantly/.

142

See ITU TELECOMM. DEV. BUREAU, MEASURING DIGITAL DEVELOPMENT FACTS AND FIGURES 2019, 1 (2019),

https://www.itu.int/en/ITU-D/Statistics/Documents/facts/FactsFigures2019.pdf; Internet Usage Statistics: World Internet

Users and 2020 Population Stats, INTERNET WORLD STATS, http://www.internetworldstats.com/stats.htm (last visited May

1, 2020); Internet Growth Statistics, INTERNET WORLD STATS, https://www.internetworldstats.com/emarketing.htm (last

visited May 1, 2020).

143

Stream-ripping in particular has been a growing problem for the music industry. See, e.g., Joan E. Solsman, YouTube

Cracks Down on Stream-Ripping Sites that Pirate Music, CNET (July 18, 2019, 6:00 AM), https://www.cnet.com/news/

google-youtube-crack-down-on-stream-ripping-mp3-sites-pirating-music-songs/; Ernesto Van der Sar, YouTube “Blocks”

Popular MP3 Stream-Ripping Sites, TORRENTFREAK (July 10, 2019), https://torrentfreak.com/youtube-blocks-popular-mp3-

stream-ripping-sites-190710/ (“While YouTube’s efforts, intentional or not, are effective, they will likely trigger a cat-

and-mouse game. The operator of a popular stream-ripper, who prefers to remain anonymous, managed to get around

the blockade by deploying several proxy servers.”); Chris Eggertsen, Stream-Ripping Music Piracy Up 13% Annually, Says

MusicWatch Report, BILLBOARD (May 30, 2019), https://www.billboard.com/articles/business/8513646/stream-ripping-

music-piracy-13-percent-increase-musicwatch-report.

144

See, e.g., American Association of Independent Music (“A2IM”) et al., Comments Submitted in Response to U.S.

(“In 2014, RIAA noticed over 278,000 instances of music infringement to just one site that claims to comply with the

DMCA Section 512(c) safe harbors, 4shared.com, a cyberlocker and file sharing hub. Of those, 97% were for repeat

infringements of a previously noticed sound recording. In the five months prior to Grooveshark being shut down for

willful copyright infringement, RIAA sent the service nearly 300,000 infringement notices; 94% were for repeat

infringements of a previously noticed track.”); Tr. at 313:21–314:7 (May 2, 2016) (Troy Dow, Disney) (“Now, we have

sites like Hotfile that caused significant trouble for us. We sent 35,000 notices over the course of three months on The

Avengers, one single movie to one single cyberlocker site. That did not remove that movie from the site. It was a

consistent effort that we had to undertake. And that was a site that was designed to ensure the persistent availability of

that content. That persistent availability of the content impacts how much people are willing to pay, whether you’re a

consumer or whether you’re a retailer, for that content and it impacts licensing discussions.”); see also Ross Drath,

Comment, Hotfile, Megaupload, and the Future of Copyright on the Internet: What Can Cyberlockers Tell Us About DMCA

Reform?, 12 J. MARSHALL REV. INTELL. PROP. L. 205, 216–17 (2012) (“Many cyberlockers allow users with no connection to

a file’s uploader to download that file. Though many of them disaggregate search functionality, copyright owners

argue that this tactic has little practical effect on the user who is looking to find a specific file. That is, instead of using a

search tool on the website itself, a user can just search on a regular search engine for the name of a work along with the

U.S. Copyright Office Section 512 Report

harbors—the notice-and-takedown system—has been overwhelmed by the sheer scale of notices

of infringement being sent.

145

For example, between 1998 and 2010, Google received notices for

less than three million URLs containing content that allegedly infringed a copyrighted work.

146

The scale of notices grew with time, and in 2013, Google received notices for approximately three

million URLs—more than the total received by Google during the previous twelve years.

147

Since

then, the volume of infringement notices has rocketed up. In 2017, Google received notices

identifying about 882 million URLs,

148

and has processed requests to delist more than 4.6 billion

URLs for copyright violations to date.

149

The increased volume of notices put additional burdens

on the rightsholders who sent them and on the OSPs who must respond to them under their safe

harbor requirements.

name of a cyberlocker (e.g. ‘hunger games mediafire’) and out will pop a series of links, both to download pages

themselves and to third-party sites that aggregate download links to files hosted by cyberlockers.”).

145

See, e.g., Computer & Communications Industry Association (“CCIA”), Comments Submitted in Response to U.S.

Corporation, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 9 (Mar. 31,

2016) (“Microsoft Initial Comments”) (“In 2012, Microsoft received notices targeting under 1.8 million links to alleged

infringing works appearing in Bing’s search results. In 2015, that number grew to over 82 million alleged links to

infringing works appearing in Bing’s search results, with more than 99% of such notices sent using Microsoft’s online

forms. Processing this volume of notices without the benefit of automated tools and processes, using human review,

would not be viable.”); Motion Picture Association of America, Inc. (“MPAA”), Comments Submitted in Response to

U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 18 (Apr. 1, 2016) (“MPAA Initial Comments”) (“For smaller

owners, the phenomenon may well make the notice-and-takedown exercise cost prohibitive. One independent film

maker, for example, had to send 56,000 takedown notices regarding her film, and that volume of notices did not result

in the film’s permanent removal.”); Tr. at 194:21–195:2 (Apr. 8, 2019) (Richard James Burgess, A2IM) (“Notice and

takedown hasn’t helped much with staydown. We still have repeat infringers, and we will have to send amazing

amounts of notices to get anything done.”); Tr. at 110:5–7 (Apr. 8, 2019) (Caleb Donaldson, Google) (“We’ve processed

693 million requests from URLs from search results last year.”); Tr. at 66:6–12 (Apr. 8, 2019) (Mike Lemon, Internet

Association) (“For example, Reddit, between 2016 and 2018, had a 725 percent increase in the number of notices that it

received. They went from 610 takedowns in 2016 to 26,234 takedowns, content removals.”); Tr. at 116:11–19 (Apr. 8,

2019) (Peter Midgley, Brigham Young University) (“[W]e are also service providers and we manage a very large

network to support our students, our faculty, staff and even visitors to our campus. In that context, we’ve received

numerous [section] 512(c) notices and the imposition that it presents for us, the administrative burden in processing

those notices and the uncertainty associated . . . are somewhat problematic for us as universities.”).

146

See GOOGLE, HOW GOOGLE FIGHTS PIRACY 15 (2013), https://docs.google.com/file/d/

0BwxyRPFduTN2dVFqYml5UENUeUE/edit.

147

See GOOGLE, HOW GOOGLE FIGHTS PIRACY 15 (2014),

https://drive.google.com/file/d/0BwxyRPFduTN2NmdYdGdJQnFTeTA/view.

148

See GOOGLE, HOW GOOGLE FIGHTS PIRACY 14 (2018), https://www.blog.google/documents/27/How_Google_

Fights_Piracy_2018.pdf. As of May 2020, Google had not yet published an update of this report reflecting data from

2018 or later.

149

Content Delistings Due to Copyright, GOOGLE: TRANSPARENCY REPORT, https://transparencyreport.google.com/

Dec. 13, 2018. The Latest News, Updates, and Data from Google’s Transparency Report, GOOGLE: TRANSPARENCY REPORT,

https://transparencyreport.google.com/about (last visited May 11, 2020).

U.S. Copyright Office Section 512 Report

Additionally, many rightsholders argue that the scale of notices sent makes section

512(g)’s requirement of court action to contest a counter-notice infeasible, especially coupled with

the ten-day deadline to file suit following a counter-notice.

150

Moreover, the volume of notices

demonstrates that the notice-and-takedown system does not effectively remove infringing content

from the internet; it is, at best, a game of whack-a-mole.

151

Further, the use of automated notice-

generating technologies, which ease copyright owners’ monitoring for infringing content and

facilitate more rapid response, raise concerns related to speech.

152

As does the length of time

mandated for “put back”—with both politically sensitive and timely content, the delay can leave

a user in a position where their counter-notice prevails and the content is put back up, but the

audience for that content has moved on.

153

And the increased access to broadband around the

world raises new enforcement challenges that Congress could not have anticipated in 1998.

154

150

See, e.g., A2IM Music Community Initial Comments at 44 (“Based on that study on one month of data, even though

the number of counter-notices received was tiny compared to the number of notices sent, the percentage of those

counter-notices that appeared erroneous was over 80%. In that study, under Section 512(g)(2)(C), the rights holder

would be obligated to bring over 500 lawsuits in order to protect its intellectual property . . . . Most artists simply do not

have the resources to engage in such a costly, and time compressed litigation.”).

151

This phrase—a reference to the classic arcade game in which the player holds a padded mallet and attempts to bop

mechanical moles as they pop out of their holes—has been used for years by copyright owners to describe the notice-

and-takedown process. See, e.g., Tr. at 28:19–23 (May 2, 2016) (Richard Burgess, A2IM) (“We have labels with 250 staff

and we have labels with five staff who are clearly at the lower end, who simply do not have the resources to be able to

send these notices and to be able to police those. But even if you do, it is the whack-a-mole game that you talk about.

You just simply cannot win.”); Tr. at 108:13–16 (Apr. 8, 2019) (Stephen Carlisle, Nova Southeastern University) (“The

whack-a-mole problem on its own makes it simply unaffordable from a time standpoint and a financial standpoint, to

send out the number of notices required.”); Tr. at 397:2–5 (Apr. 8, 2019) (Keith Kupferschmid, Copyright Alliance)

(“Because the notices they send basically have very little effect. The material goes back up on line . . . and it’s sort of

this game of whack-a-mole.”); Ernesto Van der Sar, Google Asked to Remove 100,000 ‘Pirate Links’ Every Hour,

TORRENTFREAK (Mar. 6, 2016), https://torrentfreak.com/google-asked-to-remove-100000-pirate-links-every-hour-160306/.

152

See, e.g., Floor64, Inc. d/b/a/ The Copia Institute, Comments Submitted in Response to U.S. Copyright Office’s Dec.

31, 2015, Notice of Inquiry at 4 (Apr. 1, 2016) (“Copia Institute Initial Comments”) (“The irony is that while the DMCA

makes it possible for service providers to exist to facilitate online speech, it does so at the expense of the very speech

they exist to facilitate due to the notice and takedown system.”); Tr. at 34:17–35:15 (May 12, 2016) (Jennifer Urban,

University of California-Berkeley School of Law) (noting that automated detection and notice-sending systems are

essential for copyright owners dealing with a large volume of infringement but stating that it should not “operate in

isolation without some kind of human review”).

153

See, e.g., Tr. at 150:10–16 (May 12, 2016) (Cathy Gellis, Digital Age Defense) (“We’ve seen evidence in political

situations of people who don’t like content and just sent a takedown notice to have the political content they don’t like

deleted. And even if it is restored, it’s restored after a delay, and that delay might be significant if there’s something

newsworthy or timely about that particular content.”); Tr. at 153:3–154:20 (May 2, 2016) (Rebecca Prince, Becky Boop).

154

See, e.g., c3 Initial Comments at 15 (“[G]iven the increased availability of higher broadband speeds and low-cost

server space, coupled with the continued misinterpretation of the DMCA by the courts and those that want to take

advantage of its safe harbors, the DMCA regime fails to accomplish the balance sought by Congress.”); Digimarc

Corporation, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 1 (Apr. 1,

2016) (“Digimarc Initial Comments”) (“But the advent and growth of consumer broadband internet and the increased

adoption of digital media have rendered the notice-and-takedown process anachronistic and incapable of dealing with

the amount of online infringement occurring today.”).

U.S. Copyright Office Section 512 Report

Finally, rightsholders say that other developments that obscure the identity of internet

users have further complicated the notice-and-takedown process and, more generally, copyright

enforcement online.

155

These take two forms. The first is technologies that anonymize user data

or mask the location of hosting services. These include reverse proxy services that sit between the

internet and the web servers that make up the internet, forwarding requests from internet users to

web servers and collecting responses from those web servers so that web servers never

communicate directly with internet users.

156

The second development comes from new foreign

laws that limit how OSPs may use and share user information.

157

Though there may be

technological reasons for anonymizing data or masking location or important policy

considerations that support increasing internet user privacy, these business and policy decisions

tip the balance away from copyright owners by making it more difficult for them to identify

infringers.

158

155

See, e.g., Arts and Entertainment Advocacy Clinic at George Mason University School of Law (“Mason Clinic”),

Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 10 (Apr. 1, 2016)

(“Mason Clinic Initial Comments”) (“After the notice is submitted, platforms, including YouTube, send an email to the

user who posted the work stating that the material has been taken down upon the request of the artist. The email

includes the artist’s name and address. The artist, however, is not informed about the real identity of the user who

posted her copyrighted work, and such users also often hide behind made up usernames.”); Digimarc Initial Comments

at 8 (“Online Service Providers can avoid accountability by not requiring the creation of a public-facing account to use

their services. Thus, [OSPs] have little incentive to aggressively police their user bases . . . . [to say] nothing of the ease

with which individuals can obscure their digital identity to avoid existing repeat infringer policies.”); Elnar

Mukhamediarov, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2

(Apr. 1, 2016) (“There is no identity verification in the case of DMCA counter-notifications, which means that users can

submit fake information and get away with it.”); Schneider Initial Comments at 19; Tr. at 314:2–3 (May 13, 2016) (Ira

Siegel, Copyright Enforcement Group (“CEG”)).

156

See Finding the IP Address of a Website Behind Cloudflare, SECURITYTRAILS (Feb. 21, 2018),

https://securitytrails.com/blog/ip-address-behind-cloudflare (“By using a reverse proxy service, it can be very difficult

or even impossible for someone on the outside to figure out who the hosting provider is that’s originating the

website.”). Reverse proxy services like Cloudflare claim that they “increase security, performance, and reliability.”

What Is a Reverse Proxy? Reverse Proxies Explained, CLOUDFLARE, https://www.cloudflare.com/learning/cdn/

glossary/reverse-proxy/ (last visited May 8, 2020).

157

In 2018, for example, the European Union brought into force the General Data Protection Regulation (“GDRP”),

which requires controllers and processors of personal data to, among other things, obtain the consent of subjects for

data processing, to anonymize collected data and to provide data breach notifications. See generally EU Data Protection

Rules, EUROPEAN COMMISSION, https://ec.europa.eu/info/priorities/justice-and-fundamental-rights/data-protection/2018-

reform-eu-data-protection-rules/eu-data-protection-rules_en (last visited May 5, 2020); see also Ivana Kottasová, What Is

GDPR? Everything You Need to Know About Europe’s New Data Law, CNN BUSINESS (May 21, 2018),

https://money.cnn.com/2018/05/21/technology/gdpr-explained-europe-privacy/index.html.

158

See Tr. at 299:9–16 (Apr. 8, 2019) (Steve Rosenthal, McGraw-Hill Education) (“We have seen a number of instances

where identifying data previously available on a WHOIS or similar search result was suddenly redacted and hidden

from public view. At the same time, we have seen a proliferation of content delivery networks such as Cloudflare

providing services that anonymize the identity of online service providers in the pretext of furthering security interests.

This impacts the rights owners’ ability to enforce against the bad actors.”).

U.S. Copyright Office Section 512 Report

B. Past Efforts to Address Changes to the Online Landscape

In response to the above concerns about the strains on the section 512 regime that have

begun to show as the internet has grown, stakeholders have engaged in various efforts to address

such landscape changes while retaining the notice-and-takedown system. These initiatives reflect

the challenges both of achieving successful collaboration among the various stakeholders within

the copyright ecosystem and, implicitly, reaching consensus on legislative changes to section 512.

Many stakeholders have pursued voluntary agreements

159

and other private initiatives to improve

the functioning of the notice-and-takedown system.

160

Government actors, too, have made efforts

to address these issues both through greater coordination of enforcement activities and through

facilitation of stakeholder dialogues. While the life cycles of some of these efforts have already

ended, many of these approaches will continue to support the evolution of efforts to address

online infringement.

1. Voluntary Agreements Adopted by the Marketplace

Since the enactment of section 512, stakeholders have acknowledged perceived gaps in the

enforcement framework for online infringement that cannot be addressed by legislative action.

161

Stakeholders have thus developed a range of voluntary initiatives to address online infringement,

from best practices to formal, binding agreements. These initiatives can be unilateral or can

involve a collaborative effort among several parties across industries.

159

See Role of Voluntary Agreements in the U.S. Intellectual Property System: Hearing Before the Subcomm. on Courts,

Intellectual Prop., & the Internet of the H. Comm. on the Judiciary, 113th Cong. (2013) (“House Role of Voluntary Agreements

Hearing”); Konstantinos Komaitis, Voluntary Initiatives as a Source of Policy-Making on the Internet, INTERNET SOCIETY (July

29, 2013), https://www.internetsociety.org/blog/2013/07/voluntary-initiatives-as-a-source-of-policy-making-on-the-

internet/ (noting that “self-regulation is more prompt, flexible and effective than government regulation”).

160

See Pinterest, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2–3

(Apr. 1, 2016) (“Pinterest Initial Comments”) (“Because Section 512 enabled content owners to request the removal of

their content from our platform at any time, we found that we had to provide value to our partners to keep their

content on our platform. As a result, Section 512 encouraged us to form creative partnerships with content creators and

publishers. It incentivized voluntary cooperation and respect, which led to better business outcomes for us and our

partners.”); House Role of Voluntary Agreements Hearing, 113th Cong. 12 (statement of Cary H. Sherman, Chairman and

CEO, RIAA) (“For the digital marketplace to truly work, we must ensure that . . . vibrant new services are not

undermined by illegal activity. Voluntary initiatives with Internet businesses are a key component of that objective.”).

161

See, e.g., CCIA Initial Comments at 3 (“Congress recognized that cooperation would lead to the most beneficial,

effective enforcement of the law.”); Google Initial Comments at 8 (“[T]he notice-and-takedown framework has not been

a silver bullet solution to online infringement; it was always meant to be one part of a larger collaborative strategy, led

by rightsholders and buttressed by other efforts. The safe harbors have been supplemented by additional voluntary

efforts, including supply-based initiatives (making lawful content available to users online) and ‘follow the money’

measures (drying up the financial incentives for rogue sites). These voluntary efforts are exactly what Congress

envisioned the DMCA safe harbors would encourage.”).

U.S. Copyright Office Section 512 Report

Congress has acknowledged the important role that voluntary initiatives and agreements

can play in the online environment.

162

Stakeholders likewise note that such agreements offer the

advantage of allowing parties “to learn from the marketplace what is working and what is not . . .

[, to] modify the agreement [that resulted in the drafting of section 512] . . . [and] learn from

experience.”

163

a) Examples of Best Practices

Several stakeholder groups have developed and implemented industry best practices for

addressing online infringement. Payment processors and advertising networks, in particular,

have utilized best practices in an effort to cut off payments and advertising revenues for web

services offering infringing material, by using “follow the money” strategies that are “aimed at

cutting off the supply of revenue flowing to rogue sites.”

164

These initiatives generally began as

best practice statements that provided guidelines for conducting business and have evolved into

more robust programs. While some stakeholders acknowledge the benefits of best practices

guidelines, they also commente on the limitations, including the limited scope of influence and

the lack of any force of law.

165

The creative industries and OSPs, including CBS, Disney, Fox, Microsoft, MySpace, NBC

Universal, Sony Pictures, Veoh, and Viacom, have worked together to establish best practices

related to user generated content (“UGC”) websites.

166

In 2007, these internet and media

companies created the Principles for User Generated Content Services (“UGC Principles”), a set of

162

See Section 512 of Title 17: Hearing Before the Subcomm. on Courts, Intellectual Prop., & the Internet of the H. Comm. on the

Judiciary, 113th Cong. 6 (2014) (“House Section 512 Hearing”) (statement of Rep. John Conyers, Jr., Ranking Member, H.

Comm. on the Judiciary) (stating that rightsholders, OSPs, and users “are in the best position to assess practices with

respect to online copyright material”); House Role of Voluntary Agreements Hearing, 113th Cong. 2 (statement of Rep.

Howard Coble, H. Comm. on the Judiciary) (stating that voluntary measures may be “more efficient and effective than

some regulation handed down by the Federal Government”).

163

House Role of Voluntary Agreements Hearing, 113th Cong. 58 (statement of Cary H. Sherman, Chairman and CEO,

RIAA); see also Internet Commerce Coalition (“ICC”), Additional Comments Submitted in Response to U.S. Copyright

Office’s Nov. 8, 2016, Notice of Inquiry at 5 (Feb. 21, 2017) (“ICC Additional Comments”) (stating that that “voluntary

measures . . . are far more likely to achieve the goals of all stakeholders”); House Role of Voluntary Agreements Hearing,

113th Cong. 59 (statement of Randall Rothenberg, President and CEO, International Advertising Bureau) (“[T]he

voluntary agreement, self-regulation by industry has the benefit of being able to be more flexible in the pursuit of its

objectives. Legislation and regulation have a tendency to fix in stone certain methods by which infringements have to

be identified and punished. And technology, especially the infringers and especially those infringers outside our

borders, will find new ways to evade them.”).

164

Google Initial Comments at 4, 8. See also Microsoft Initial Comments at 10 (“[V]oluntary measures demonstrate how

‘follow the money’ approaches designed to impact both advertising revenues and payments received by sites that are

dedicated to online piracy.”).

165

See infra section VI.B.2. (discussing limitations of best practices).

166

Press Release, The Walt Disney Co. et al., Internet and Media Industry Leaders Unveil Principles to Foster Online

Innovation While Protecting Copyrights (Oct. 18, 2007), http://www.ugcprinciples.com/press_release.html.

U.S. Copyright Office Section 512 Report

guidelines designed to address “the proliferation of uploaded content that infringes copyrighted

works.”

167

The principles call for UGC websites to implement filtering technology that can

recognize copyrighted works and notify rightsholders of any matches; rightsholders may then

determine how the match should be treated.

168

The principles state that the technology must be

used in a way that effectively balances rightsholders’ legitimate interest in blocking infringing

content with the interests of OSPs and users in allowing lawful uploads and accommodating fair

use.

169

The companies driving these principles intended that cooperation across industries would

“address the challenge of developing new modes of distribution while protecting intellectual

property.”

170

Soon after the UGC Principles were released, the Electronic Frontier Foundation (“EFF”)

171

published Fair Use Principles for User Generated Video Content (“Fair Use Principles”), a set of

guidelines “meant to provide concrete steps” to be taken to “minimize the unnecessary, collateral

damage to fair use” in light of the techniques advocated in the UGC Principles.

172

The Fair Use

Principles urge companies to (1) allow “a wide berth for transformative, creative uses”; (2)

incorporate protections for fair use into any content filtering system (such as human review); (3)

require a DMCA notice before removing any content; (4) give notice to the user when an OSP

receives a takedown notice concerning the user’s content; (5) “create a mechanism by which the

user . . . can easily and informally request reconsideration of the content owner’s decision to issue

a . . . takedown notice”; and (6) provide a streamlined mechanism to repost content when a

takedown notice is retracted.

173

According to the EFF, these “parameters are intended to help

ameliorate the harms of over-filtering.”

174

It is unclear to what extent OSPs have adopted either

the UGC Principles or the Fair Use Principles.

Advertising companies have also developed best practices to combat piracy by working to

prevent their advertisements from appearing on websites dedicated to distributing infringing

content. In 2012, advertising networks

175

issued a series of best practice statements pledging to

167

Id.

168

See Principles for User Generated Content Services, UGC PRINCIPLES, http://www.ugcprinciples.com/.

169

See id.

170

Press Release, The Walt Disney Co. et al., Internet and Media Industry Leaders Unveil Principles to Foster Online

Innovation While Protecting Copyrights (Oct. 18, 2007), https://ugcprinciples.com/press_release.html.

171

EFF was later joined by the Center for Social Media, School of Communications, American University; the Program

on Information Justice and Intellectual Property, Washington College of Law, American University; Public Knowledge;

the ACLU of Northern California’ and the Berkman Center for Internet and Society, Harvard Law School. See Fair Use

Principles for User Generated Video Content, EFF, https://www.eff.org/pages/fair-use-principles-user-generated-video-

content.

172

See id.

173

See id.

174

EFF Initial Comments at 15.

175

Companies that connect advertisers to websites that want to host ads.

U.S. Copyright Office Section 512 Report

take affirmative steps to avoid placing advertisements on sites dedicated to online

infringement.

176

Going a step further, the Interactive Advertising Bureau (“IAB”) released Quality

Assurance Guidelines (“QAG”),

177

which created a certification process for advertisers. Under the

QAG, certified advertisers must make disclosures to ad buyers concerning their relationship to

the inventory, content categories, and content ratings of websites, as well as agree not to sell any

inventory within categories of illegal content like drugs, bombs, spyware, and copyright

infringement.

178

The QAG also provide for a formal, peer-enforced complaint process that

permits non-compliance and intellectual property complaints to be lodged against certified

companies.

179

The Trustworthy Accountability Group (“TAG”)

180

launched its Brand Integrity Program

Against Piracy in 2015 to address similar issues related to online piracy and the lack of

transparency that digital advertisers encounter.

181

The program “helps advertisers and their ad

agencies avoid damage to their brands from ad placement on websites and other media

properties that facilitate the distribution of pirated content and/or illegal dissemination of

counterfeit goods.”

182

Companies voluntarily participate in the program by using certain

validated tools and services to identify and prevent ads from running on infringing sites.

183

In its

Study comments, Google reported that it has “worked closely with TAG’s cross-industry

accountability working group to ensure that the . . . audit program upholds the highest standards

of transparent and responsive investigation of anti-piracy complaints.”

184

CreativeFuture, a

partner with TAG in these “follow the money” strategies, has reported that such outreach to

176

The Association of National Advertisers and the American Association of Advertising Agencies issued a joint

Statement of Best Practices in 2012. See Statement of Best Practices to Address Online Piracy and Counterfeiting, ASSOC. OF

NAT’L ADVERTS., http://www.ana.net/content/show/id/bestpractices-piracy. In 2013, the Intellectual Property

Enforcement Coordinator (“IPEC”) supported the creation of best practices between 24/7 Media, Adtegrity, AOL,

Condé Nast, Google, Microsoft, SpotXchange, and Yahoo!, with the support of the IAB. See Victoria Espinel, Coming

Together to Combat Online Piracy and Counterfeiting, WHITE HOUSE BLOG (July 15, 2013, 8:33 AM),

https://obamawhitehouse.archives.gov/blog/2013/07/15/coming-together-combat-online-piracy-and-counterfeiting.

177

See INTERACTIVE ADVERT. BUREAU, TAG QUALITY ASSURANCE GUIDELINE (QAG): VERSION 2.0 (2013),

https://www.iab.com/wp-content/uploads/2015/08/SimplifiedInventoryQualityGuidelines.pdf.

178

See id.

179

See id.; see also House Role of Voluntary Agreements Hearing, 113th Cong. 31–32 (statement of Randall Rothenberg,

President and CEO, IAB).

180

TAG was founded by IAB and other advertising associations. Representatives of OSPs, rightsholders, and the

telecommunications industry serve on the TAG Leadership Council. About Us, TRUSTWORTHY ACCOUNTABILITY GRP.,

https://www.tagtoday.net/aboutus/.

181

Press Release, Trustworthy Accountability Grp., Advertising Industry Launches Initiative to Protect Brands Against

Piracy Websites, (Feb. 10, 2015), https://tagtoday.net/advertising-industry-launches-initiative-to-protect-brands-against-

piracy-websites/.

182

Id.

183

See id.

184

Google Initial Comments at 4.

U.S. Copyright Office Section 512 Report

advertisers has resulted in a 90% reduction in impressions of advertisements on pirate sites over

two years, with no premium advertisers identified on high volume pirate sites in 2018.

185

b) Examples of Formal Agreements

Formal agreements between various parties generally develop out of the best practices

described in the previous section. While these agreements do not have the force of law, they do

further emphasize the commitment to a shared goal in facilitating the operations within the

notice-and-takedown framework. The Copyright Office has found during the Study, however,

that these formal agreements traditionally have not included small creators and individual users

in their creation and implementation, limiting the success of these agreements in some cases.

186

In 2012, the International AntiCounterfeiting Coalition (“IACC”) launched its RogueBlock

program, a “collaborative effort of the IACC and the payment industry to create a streamlined,

simplified procedure for members to report online sellers of counterfeit or pirated goods directly

to credit card and financial services companies.”

187

At least ten major financial institutions

participate in RogueBlock.

188

Rightsholder representatives can submit report forms identifying

unauthorized sellers through a RogueBlock portal; the IACC reviews and forwards the reports to

payment processors (i.e., credit card and/or financial services companies) for remedial action.

189

Since its launch, the program “has terminated over 5,000 individual counterfeiters’ merchant

accounts, which has impacted over 200,000 websites.”

190

One commenter, however, notes that the

costs of participating in the program may exclude smaller rightsholders from taking advantage of

the benefits.

191

In 2019, several stakeholders from the larger IP community praised the recent

185

Follow the Money Update, CREATIVEFUTURE (Jan. 24, 2019), https://creativefuture.org/follow-the-money-update/.

186

See infra section VI.B.2.

187

IACC RogueBlock, INT’L ANTICOUNTERFEITING COAL., https://www.iacc.org/online-initiatives/rogueblock.

188

MasterCard, Visa International, Visa Europe, Paypal, MoneyGram, American Express, Discover, PULSE, Diners

Club, and Western Union all participate. See id.

189

See id.; House Role of Voluntary Agreements Hearing, 113th Cong. 55 (written statement of Robert C. Barchiesi,

President, IACC).

190

IACC RogueBlock, IACC, http://www.iacc.org/online-initiatives/rogueblock. The program launched in 2012 after the

IPEC facilitated the establishment of a set of best practices among payment processors. See House Role of Voluntary

Agreements Hearing, 113th Cong. 50 (statement of Robert C. Barchiesi, President, IACC). In April 2017, IACC

announced that it was expanding its RogueBlock program to target .uk domain names. See Press Release, Int’l

AntiCounterfeiting Coal., The International AntiCounterfeiting Coalition and City of London Police Partner to Protect

Consumers from Online Counterfeits (Apr. 3, 2017), http://www.iacc.org/media/the-international-anticounterfeiting-

coalition-and-city-of-london-police-partner-to-protect-consumer.

191

See AAP Initial Comments at 17 (“Like the Copyright Alert System, this voluntary regime [IACC] requires

participants to ’pay to play.’ For many smaller rights holders, the price of admission (or participation) is simply too

high.”).

U.S. Copyright Office Section 512 Report

work of the IACC in disrupting online payment processing to online sites that list counterfeit

goods.

192

Formal agreements between rightsholders and OSPs have taken the form of graduated

response systems. Used most frequently for P2P networks, graduated response systems address

online infringement by requiring an OSP to take a series of steps with respect to a user when it

detects that that user has engaged in infringing activity. Such protocols generally involve “a

system of educational notifications and warnings, culminating in deterrent sanctions for those

who refuse to stop infringing.”

193

In July 2011, the Recording Industry Association of America

(“RIAA”), the Motion Picture Association of America (“MPAA”), and several ISPs signed a

voluntary memorandum of understanding creating a graduated response system known as the

194

Under the CAS, a participating ISP that received notice from a copyright owner of alleged

infringement occurring on its service would send a copyright alert to the subscriber associated

with that activity.

195

A maximum of six alerts would be sent to each subscriber, and each alert’s

severity increased as the unlawful conduct continued.

196

The first alerts were meant to be

educational and to inform the subscriber of the unlawful activity, give instructions on how to

prevent the activity, and provide information on how to access content legally.

197

If unlawful

activity continued on the subscriber’s account, then the ISP would send additional alerts and

impose mitigation measures such as a temporary reduction in internet speed, a temporary

downgrade in internet service tier, or suspension of service.

198

Once the ISP imposed these

mitigation measures, the customer would be given the chance to undergo an independent review

if he or she believed the alerts were sent in error or that allegations were untrue.

199

192

See Carrie Hansen, Everything about the IOffer Shutdown and Counterfeiting, VIZACA, (June 8, 2019),

https://www.vizaca.com/ioffer-shutdown-counterfeiting/.

193

INTERNATIONAL FEDERATION OF THE PHONOGRAPHIC INDUSTRY, DIGITAL MUSIC REPORT 2011: MUSIC AT THE TOUCH OF A

BUTTON 18 (2011), https://www.musikindustrie.de/fileadmin/bvmi/upload/06_Publikationen/DMR/ifpi_digital-music-

report-2011.pdf.

194

See CNTR. FOR COPYRIGHT INFO., Memorandum of Understanding (2011) (“CCI Memorandum of Understanding”),

reposted at https://www.musikindustrie.de/fileadmin/bvmi/upload/06_Publikationen/DMR/ifpi_digital-music-report-

2011.pdf. Participants in the system were AT&T, Comcast, Cablevision, Verizon, Time Warner Cable, RIAA, A2IM,

MPAA, and IFTA. Id. at 21–23

195

See id. at § 4(G).

196

See id.

197

See id. at § 4(G)(i).

198

See id. at § 4(G)(iii).

199

See id. at § 4(H).

U.S. Copyright Office Section 512 Report

The CAS generated mixed reactions among stakeholders. Some criticize the program for

involving only larger players in the negotiations and for failing to involve representatives of user

interests.

200

One commenter notes that the system’s reliance on automated measures was

“beyond the technical and financial capability of many smaller and mid-sized providers.”

201

Some rightsholders lament that the CAS was “nothing more than a[n] educational effort, with no

real consequences suffered by any of [the ISP’s] infringing customers.”

202

Overall, while several

commenters commend the CAS as being “effective at educating subscribers and incentivizing

them to cease infringing behavior,”

203

others argue that it made little impact, particularly with

respect to repeat infringers outside the P2P context.

204

The CAS was first implemented in February in 2013

205

and remained in effect for

approximately four years. In January 2017, the CCI announced that the program was being

200

See, e.g., Ernesto Van der Sar, Has Your ISP Joined the US “Six Strikes” Anti-Piracy Scheme?, TORRENTFREAK (Aug. 3,

2012), https://torrentfreak.com/isp-six-strikes-anti-piracy-scheme-120803/; Corynne McSherry & Eric Goldman, The

“Graduated Response” Deal: What if Users Had Been At the Table?, ELEC. FRONTIER FOUND. (July 18, 2011),

https://www.eff.org/deeplinks/2011/07/graduated-response-deal-what-if-users-had-been. See also American Cable

Association (“ACA”), Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 11

(Apr. 1, 2016) (“ACA Initial Comments”) (recognizing that the CAS was established by “a handful of the larger

stakeholders” to “deal with alleged instances of repeat infringement”); Copyright Alliance Initial Comments at 26

(“[E]fforts [such as CAS] should be expanded to include other stakeholders and additional categories of creative

works.”).

201

ACA Initial Comments at 11.

202

CEG, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 9–10 (Apr. 1,

2016); see also IFTA Initial Comments at 10 (“Existing voluntary initiatives such as the Copyright Alert System to

address peer-to-peer piracy . . . are useful to set the table for an improved digital environment in which copyright is

respected. However, in practice, such voluntary measures do not mitigate the damage from specific illegal acts or offer

any immediate mechanism to stop the instant proliferation of infringing material online.”) (emphasis omitted).

203

ICC, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 6 (Apr. 1, 2016)

(“ICC Initial Comments”); see also Copyright Alliance Initial Comments at 16 (“[A] CCI study found that 57% of users

would stop infringing immediately if they received an alert.”); Microsoft Initial Comments at 10–11; MPAA Initial

Comments at 5 (Apr. 1, 2016) (“Now in its fourth year, the Copyright Alert System has sent out millions of ‘alerts,’ and

the CCI continues to work to improve it. Unfortunately, these cooperative activities, which are outside the section 512

system, remain the exception rather than the rule.”).

204

AAP Initial Comments at 16 (“While the system appears to have some utility, it is designed to address only

infringing activity occurring on P2P platforms.”) (citation omitted); Tr. at 111:6–14 (May 3, 2016) (Mary Rasenberger,

Authors Guild) (“The Copyright Alert System—we haven’t seen that it works. Six strikes seems to be too far, too

much.”); see also Ted Johnson, Internet Service Providers, Studios and Record Labels Call It Quits on Copyright Alert System,

VARIETY (Jan. 27, 2017, 2:44 PM), https://variety.com/2017/digital/news/copyright-alerts-piracy-mpaa-comcast-att-

1201971756/ (quoting MPAA executive vice president Steven Fabrizio as saying, “These repeat infringers are the ones

who drive ongoing and problematic P2P piracy . . . . [The CAS] was simply not set up to deal with the hard-core repeat

infringer problem.”).

205

See Ian Paul, ISPs Roll out Six Strikes Program this Week, PCWORLD (Feb. 25, 2013, 10:45 AM),

https://www.pcworld.com/article/2029336/isps-roll-out-six-strikes-program-this-week.html.

U.S. Copyright Office Section 512 Report

discontinued.

206

The CCI notes, however, that “[w]hile this particular program is ending, the

parties remain committed to voluntary and cooperative efforts to address these issues.”

207

2. Private Initiatives

In addition to cooperative agreements, some rightsholders and OSPs have embarked on

private initiatives, in the form of educational outreach or technological tools, to address the use

and dissemination of pirated content.

a) Educational Outreach about Access to Legal Content

Developed by the RIAA and the Music Business Association, ”Whymusicmatters.com,”

serves as a resources for users to learn about the various authorized digital music services

available in the marketplace.

208

Services are listed on the site if they have an agreement with at

least one of the three major record companies in the United States.

209

”Just Watch” offers a similar

service for television and film by allowing users to search various streaming platforms to watch

certain content legally.

210

These websites offer users helpful information to navigate the various

options in today’s marketplaces while emphasizing the importance of proper compensation for

rightsholders.

b) Filtering

Some larger OSPs have implemented voluntary filtering systems to identify potentially

infringing material uploaded to their platforms. YouTube’s Content ID program is one of the

more robust filtering systems on the internet.

211

The system scans videos that are uploaded to

YouTube against a database of files that have been submitted by content owners participating in

the program. When a match is made, the owner is notified and has the option to block the entire

video from being viewed, monetize the video by running advertisements against it, or solely track

the video’s viewership statistics.

212

Users who believe a claim against an uploaded file is invalid

206

Jeff Baumgartner, Copyright Alert System Comes to an End, MULTICHANNEL NEWS (Jan. 27, 2017),

https://www.multichannel.com/news/copyright-alert-system-comes-end-410471 (quoting Statement on the Copyright

Alert System, CNTR. FOR COPYRIGHT INFO. (Jan. 27, 2017)).

207

Id.

208

See About Us, MUSIC MATTERS, https://whymusicmatters.com/about-us/.

209

See FAQ, MUSIC MATTERS, https://whymusicmatters.com/faq/.

210

See What We Do, JUSTWATCH, https://www.justwatch.com/us/about.

211

Other platforms have developed content matching technology similar to YouTube’s. Scribd, a service that provides

access to literary works and allows users to self-publish, established BookID to filter uploaded works. The program

compares reference samples of works in their database with uploaded materials, and a matched upload is blocked. See

BookID, SCRIBD, https://www.scribd.com/copyright/bookid.

212

See How Content ID Works, YOUTUBE HELP, https://support.google.com/youtube/answer/2797370. These options can

be country-specific, giving the copyright owner the ability to block a file in one country and monetize it in another. Id.

U.S. Copyright Office Section 512 Report

or believe their video was misidentified can dispute the claim, at which time the video will be

temporarily available on YouTube until the owner responds.

213

If the owner chooses to uphold his

claim, the user can appeal once more.

214

At any point, the owner can bypass this process and issue

a section 512 takedown notice.

215

As of 2020, over 9,000 rightsholders were participating in Content ID, claiming over 800

million videos.

216

Over the past five years, YouTube had paid $2 billion to participants who chose

to monetize files using Content ID.

217

Some stakeholders praise Content ID for automating rights

management, and for “creat[ing] an entirely new revenue stream for the music industry by

allowing rightsholders, if they wish, to leave fan videos up and earn revenue from them.”

218

Participation in the Content ID program is limited to rightsholders who “own exclusive

rights to a substantial body of original material that is frequently uploaded by the YouTube

creator community.”

219

Some commenters complain that this policy unfairly excludes smaller

music once and for all.”

220

Similarly, a number of rightsholders urge Google to permit other OSPs

213

See Dispute a Content ID Claim, YOUTUBE HELP, https://support.google.com/youtube/answer/2797454.

214

See id.

215

See id.

216

See YouTube for Press, YOUTUBE, https://www.youtube.com/yt/about/press/ (click “View all YouTube statistics”) (last

visited May 1, 2020).

217

See id.; see also Google Initial Comments at 3 (“To date, Content ID has generated more than $1 billion in revenue for

the content industry.”); House Section 512 Hearing, 113th Cong. 75 (statement of Katherine Oyama, Senior Copyright

Policy Counsel, Google Inc.) (stating that the majority of rightsholders chose to leave the matched file on YouTube and

monetize it instead of having it blocked).

218

Tr. at 34:3–13 (May 3, 2016) (Michael Petricone, Consumer Technology Association (“CTA”)), see also, c3 Initial

Comments at 13 (“It is important that online intermediaries, not just right holders, fully engage in the fight against

digital theft . . . . For example, YouTube’s Content ID system now enables rights holders to limit infringing files, which

are technologically matched via fingerprint-based content recognition technology, from being made available via

YouTube.”); Intellectual Property Owners Association (“IPO”), Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015, Notice of Inquiry at 4 (Apr. 1, 2016) (“IPO Initial Comments”) (“YouTube’s Content ID filtering

system illustrates that commercially reasonable upload filtering can complement the growth of legitimate content-

driven websites. YouTube has become enormously successful with legitimate user generated content videos and

revenue models with rights holders.”).

219

How Content ID Works, YOUTUBE HELP, https://support.google.com/youtube/answer/2797370; see also Qualifying for

Content ID, YOUTUBE HELP, https://support.google.com/youtube/answer/1311402.

220

House Section 512 Hearing, 113th Cong. 54 (statement of Maria Schneider, Grammy Award Winning

Composer/Conductor/Producer, Member of the Board of Governors, New York Chapter of the Recording Academy); see

also Directors Guild of America (“DGA”), Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 8 (Apr. 1, 2016) (“DGA Initial Comments”) (“[I]ndividual creators usually do . . . not have any

access to, or in many cases awareness of . . . [content-filtering technologies]. That . . . needs to be rectified.”); Future of

Music Coalition (“FMC”), Initial Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry at 17 (Apr. 1, 2016) (“FMC Initial Comments”) (“[M]any of these technologies are frequently inaccessible or

unaffordable to both small content creators and tech developers. A small independent record label may only be able to

U.S. Copyright Office Section 512 Report

to use its Content ID technology for purposes such as image recognition.

221

One creative industry

group also notes that, given YouTube’s market strength, it can force participants to “accept[]

licensing terms that some rightsholders find objectionable or that provide compensation at levels

far below market rates on competing services.”

222

Commenters also raise substantive complaints about Content ID.

223

Some rightsholders

argue that it fails to capture a significant percentage of unauthorized uploads, forcing content

owners to independently search YouTube for infringements.

224

On the other hand, user advocacy

groups expresse concern that the system is “prone to false positives and cannot properly take fair

use considerations into account.”

225

afford a third-party service for its most high-profile anticipated releases, and then only for a short window before and

after its release.”); IFTA Initial Comments at 7 (“Use of updated technology should not be optional for online service

providers and they should not be allowed to continue to offer new solutions only to large or preferred rights holders.”);

Schneider Initial Comments at 3 (“Basically, that means the little guy need not apply. That’s wrong.”). Google has

since launched a Content Verification Program, which offers a more limited feature set. Content Verification Program,

YOUTUBE HELP, https://support.google.com/youtube/answer/2797370.

221

Getty Images, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 6

(Mar. 31, 2016) (“Getty Initial Comments”) (“It is also worth noting that despite repeated requests by the photography

community and the availability of image-recognition technology, Google has refused to make Content ID available for

photographs and still images.”); The National Academy of Recording Arts & Sciences (“Recording Academy”),

Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 6 (Apr. 1, 2016)

(“Recording Academy Initial Comments”) (“Google’s Content ID system for YouTube shows that it’s possible to protect

against online infringement and block unauthorized works. But this protection is only available on one platform,

YouTube, and only if you meet Google’s criteria.”).

222

FMC, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 6

(Feb. 21, 2017) (“FMC Additional Comments”).

223

See, e.g., Tr. at 63:10–13 (May 3, 2016) (Victoria Sheckler, RIAA) (“Content ID is a helpful tool. It is not a silver bullet,

and there are a variety of problems with Content ID that could be addressed, in our view.”); Tr. at 262:19–20 (May 3,

2016) (Rebecca Tushnet, OTW) (“The biggest users of Content ID can’t say a good word about it.”).

224

See, e.g., Sony Music Entertainment, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 3 (Apr. 1, 2016) (“Sony Initial Comments”) (“Sony is essentially forced to pay a third party

contractor to search for and claim or block otherwise infringing videos on YouTube that are not caught by YouTube’s

Content ID system. Since December 2012 this contractor has identified and claimed or blocked 1,488,035 infringing

copies of Sony Recordings not identified by Content ID. The failure of Content ID to identify the videos that Sony

identified and claimed through its contractor’s work would have cost Sony and its artists $7.7 million dollars in revenue

from approximately 10 billion plays were it not for Sony’s contractor’s independent efforts.”); WMG Initial Comments

at 5 (“Content ID would not identify live versions of performances by WMG artists, even if WMG had exclusive rights

to recordings of those performances under its recording contracts with the artists. Accordingly, WMG also deployed

substantial and costly human resources to manually identify and request takedown of recordings that slipped by

Content ID, as a copyright owner would need to do in a pure Section 512 context without Content ID.”).

225

Wikimedia Foundation, Additional Comments Submitted in Response to U.S. Copyright Office’s, Nov. 8, 2016,

Notice of Inquiry at 11 (Feb. 21, 2017) (“Wikimedia Additional Comments”); see also EFF Initial Comments at 13

(“Equally problematic are ‘filters’ that some service providers employ to help prevent copyrighted content from being

uploaded at all (and/or to monetize that content). The most well-known example of this is YouTube’s Content ID

system. The system has been plagued with problems from the beginning.”).

U.S. Copyright Office Section 512 Report

Founded in 1999, Audible Magic has also created filtering technology that is licensed to

social media platforms. Using Automatic Content Recognition (“ACR”), Audible Magic matches

audio and video files uploaded to the platform against files registered with Audible Magic’s

database.

226

If there is a match, the database relays to the platform ownership information and

rules specifying how the owner wants the file to be used. The service is used by SoundCloud,

Facebook, Vimeo, Twitch, and Dailymotion, among others, and may lead to direct licensing

agreements between copyright owners and platforms.

227

In its Study comments, Audible Magic

states that both small and large scale entities can take advantage of its technological services as

they “are quick, simple and inexpensive to install” and “require very little in the way of

maintenance.”

228

One commentator, however, notes that smaller, individual creators may not

have access to or even be aware of services like Audible Magic.

229

In 2016, Facebook developed its own tool called Rights Manager, a video-matching

technology intended “to further help rights owners protect the content they own.”

230

Rights

Manager allows approved publishers to upload and maintain a reference library of videos; create

rules about how videos are used based on, e.g., how much content has been reused or how many

views the video has received; identify new matches; and “whitelist” specific Facebook pages or

profiles on which their videos are allowed to be used.

231

When originally launched, Rights

Manager was predominantly manual: once Rights Manager located matches, the system itself

could not send automated notices.

232

In October 2017, Facebook started directly integrating

226

See Technology, AUDIBLE MAGIC, https://www.audiblemagic.com/technology/.

227

See Solutions, AUDIBLE MAGIC, http://www.audiblemagic.com/solutions.

228

Audible Magic Corporation, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry at 2 (Mar. 21, 2016) (“Audible Magic Initial Comments”).

229

See DGA Initial Comments at 8.

230

Analisa Tamaya Keef & Lior Ben-Kereth, Introducing Rights Manager, FACEBOOK FOR MEDIA (Apr. 12, 2016),

https://www.facebook.com/facebookmedia/blog/introducing-rights-manager; see also Facebook, Inc. (“Facebook”),

Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 6 (Apr. 1, 2016)

(“Facebook Initial Comments”) (“[T]he tool flags uploaded videos that match the rights owners’ content and allows

those rights owners to quickly and efficiently report the videos to Facebook for removal.”).

231

See Analisa Tamaya Keef & Lior Ben-Kereth, Introducing Rights Manager, FACEBOOK FOR MEDIA (Apr. 12, 2016),

https://www.facebook.com/facebookmedia/blog/introducing-rights-manager.

232

See, e.g., Sony Music Entertainment, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8,

2016, Notice of Inquiry at 3–4 (Feb. 21, 2017) (“Sony Additional Comments”) (“Facebook has implemented a content

identification and management technology it calls ‘Rights Manager.’ However, while copyright owners can use Rights

Manager to identify and track usage of their content, they cannot automatically block infringing uses. That requires a

manual review and takedown process.”); Todd Spangler, Facebook Connects Video Copyright-Flagging System to Third

Party Tools, VARIETY (Oct. 3, 2017, 7:00 AM), http://variety.com/2017/digital/news/facebook-rights-manager-copyright-

videos-third-party-1202578122/.

U.S. Copyright Office Section 512 Report

Rights Manager with services from third-party providers to allow for increased automation,

233

and in February 2018 it expanded Rights Manager to cover video content posted to Instagram.

234

Taking a different approach with filtering technology, the cloud storage platform Dropbox

uses hash-matching technology to prevent materials already subject to DMCA takedown notices

from being shared on its system. Upon receiving a takedown notice and disabling access to the

file, Dropbox adds the file’s unique identifier, or hash, to a blacklist. If a user attempts to share a

file with the same hash, it is blocked from being shared.

235

This does not remove the file from the

user’s account, but only prevents him from sharing it.

236

Although hash-matching stops some

infringement, it can be circumvented by making a minor alteration to the file or by sharing a

different file with the same material.

237

Given the efficacy of these filtering technologies in removing at least a portion of user-

posted infringing material, many copyright owners have advocated amending section 512 to

make the use of such systems a condition of safe harbor eligibility. These proposals are discussed

in section VI.B.3.a., below.

c) Trusted Notifier Programs

Strategic partnerships between stakeholders in different industries have provided

opportunities to address large-scale copyright infringement online outside of the notice-and-

takedown process. In 2016, the MPAA and the domain name registry Donuts Inc. announced a

partnership culminating in the Trusted Notifier program. Under this agreement, MPAA, as a

”trusted notifier,” can report large-scale pirate websites registered in Donuts-operated domains,

which Donuts then investigates and determines any warranted actions.

238

A subsequent

partnership between the MPAA and Radix, a registry based outside the United States, has since

233

See Spangler, Facebook Connects Video Copyright-Flagging System to Third Party Tools, VARIETY (Oct. 3, 2017, 7:00 AM),

http://variety.com/2017/digital/news/facebook-rights-manager-copyright-videos-third-party-1202578122/.

234

See Fred Beteille, Facebook’s Rights Manager Now Protects Your Video on Instagram, FACEBOOK FOR MEDIA (Feb. 8, 2018),

https://www.facebook.com/facebookmedia/blog/facebooks-rights-manager-now-protects-your-video-on-instagram.

235

See Greg Kumparak, How Dropbox Knows When You’re Sharing Copyrighted Stuff (Without Actually Looking at Your Stuff),

TECHCRUNCH (Mar. 30, 2014, 4:38 PM), https://techcrunch.com/2014/03/30/how-dropbox-knows-when-youre-sharing-

copyrighted-stuff-without-actually-looking-at-your-stuff/.

236

See Kyle Orland, Dropbox Clarifies Its Policy on Reviewing Shared Files for DMCA Issues, ARS TECHNICA (Mar. 30, 2014,

6:00 PM), https://arstechnica.com/tech-policy/2014/03/dropbox-clarifies-its-policy-on-reviewing-shared-files-for-dmca-

issues/.

237

See Information Technology & Innovation Foundation (“ITIF”), Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015, Notice of Inquiry at 5 (Mar. 21, 2016) (“ITIF Initial Comments”).

238

Press Release, MPAA, Initial Results Demonstrate Effectiveness of Partnership with Donuts on “Trusted Notifier”

Program (June 22, 2016), https://www.motionpictures.org/press/initial-results-demonstrate-effectiveness-of-

partnership-with-donuts-on-trusted-notifier-program/.

U.S. Copyright Office Section 512 Report

been announced.

239

Similar to the trusted notifier partnership with Donuts, MPAA must follow a

set of standards when it notifies Radix of a domain name engaged in large-scale piracy before

Radix conducts an official investigation and takes the appropriate action.

240

While one

commentator argues that these partnerships only serve as “large-scale program[s] of private-

ordered online content regulation”

241

another commentator states that such a perspective is

misleading as there is no evidence of broader “DNS-based enforcement.”

242

3. Government Inquiries and Reports

Several U.S. government initiatives overseen by various agencies have attempted to

identify and improve the tools available to creators and users within the DMCA landscape to

address allegedly infringing content available on the internet. Consultation with many

stakeholders across industries has shaped the direction of these initiatives and policies.

a) Intellectual Property Enforcement Coordinator

In 2008, Congress passed the Prioritizing Resources and Organization of Intellectual

Property Act of 2008 (“PRO IP Act”)

243

for the “critical” purpose of “improv[ing] [IP enforcement]

both domestically and internationally.”

244

Among other changes, the PRO IP Act created the

position of Intellectual Property Enforcement Coordinator (“IPEC”) within the Executive Office of

the President.

245

The IPEC is directed to coordinate enforcement efforts with an advisory

committee made up of delegates from different federal agencies

246

and to act as a principal

advisor to the President on IP enforcement issues.

247

Each year, IPEC issues an annual intellectual

239

Press Release, MPAA, MPAA/Radix Partnership Highlights Momentum behind Voluntary Initiatives (May 13, 2016),

https://www.motionpictures.org/press/mpaa-radix-partnership-highlights-momentum-behind-voluntary-initiatives/.

240

Id.

241

Annemarie Bridy, Notice and Takedown in the Domain Name System: ICANN’s Ambivalent Drift into Online Content

Regulation, 74 WASH. & LEE L. REV. 1345, 1347–48 (2017).

242

Paul Vixie, Notice, Takedown, Borders, and Scale, CIRCLEID, (Mar. 1, 2017) http://www.circleid.com/posts/print/

20170301_notice_takedown_borders_and_scale/ (quoting Bridy, Notice and Takedown in the Domain Name System).

243

Pub. L. No. 110-403, 122 Stat. 4256.

244

H.R. REP. NO. 110-617, at 22 (2008).

245

Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403, § 301 et seq., 122

Stat. 4256, 4264–65. In addition to establishing the Intellectual Property Enforcement Coordinator, the PRO IP Act also

made several legislative changes that strengthened civil and criminal IP laws and provided more resources for IP

enforcement efforts. See H.R. REP. NO. 110-617, at 23 (2008).

246

The advisory committee consists of representatives from federal agencies who have a hand in intellectual property,

including the Department of Justice, the United States Patent and Trademark Office, the Office of the United States

Trade Representative, the Department of State, and the United States Copyright Office. See Pub. L. No. 110-403, §

301(b)(3)(A), 122 Stat. 4256, 4265.

247

See H.R. REP. NO. 110-617, at 28 (2008). Congress identified “the lack of permanent and effective leadership in

coordinating [enforcement] efforts” as “[o]ne of the most significant deficiencies” in the pre-IPEC ecosystem. Id. at 26.

U.S. Copyright Office Section 512 Report

property report to Congress detailing the activities of the advisory committee during the

preceding fiscal year.

248

Its most recent annual report noted the prominent issue of online piracy,

stating that “[m]any stakeholders, including online sales platforms, payment processing

companies and advertising networks, have formed collaborative partnerships to address these

concerns[,]” but mentioned that new issues are still arising due to “rapid advances in internet-

enabled commerce” and assured that “[t]he Administration continues to seek the input of key

stakeholders to help develop new partnerships and creative solutions for addressing outstanding

IPR-related issues in the e-commerce and social media space, and will continue expanding its

efforts in the future.”

249

In addition to submission of an annual report to Congress, the IPEC is tasked with

coordinating with the advisory committee the development and implementation of a Joint

Strategic Plan (“JSP”) against counterfeiting and infringement.

250

Envisioned as the “framework

for coordinating and assessing Federal efforts to combat piracy,”

251

the JSP is released every three

years.

252

The JSP’s objectives include reducing the number of infringing goods, identifying and

addressing weaknesses in IP enforcement, ensuring that relevant information is shared among

government agencies, disrupting and eliminating infringement networks, and protecting IP rights

overseas through information sharing and enforcement coordination with other countries.

253

Related to the JSP’s objectives, the IPEC has encouraged various “cooperative efforts

within the business community to reduce Internet piracy,” and to “address repeated acts of

infringement.”

254

The IPEC’s most recent JSP, Creativity & Enterprise, Charting a Path Ahead: U.S.

Joint Strategic Plan on Intellectual Property Enforcement, FY 2017-2019, applauds the existing

voluntary measures involving payment processors and advertisers, but notes that there is

opportunity “for expanded collaboration between all stakeholders to augment” the initiatives and

248

See 15 U.S.C. § 8114

249

IPEC, ANNUAL INTELLECTUAL PROPERTY REPORT TO CONGRESS 29 (2020), https://www.whitehouse.gov/wp-

content/uploads/2020/04/IPEC-2019-Annual-Intellectual-Property-Report.pdf.

250

See Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403, § 301(b)(1), 122

Stat. 4256, 4265.

251

H.R. REP. NO. 110-617, at 28 (2008).

252

Prioritizing Resources and Organization for Intellectual Property Act of 2008, Pub. L. No. 110-403, § 303(b), 122 Stat.

4256, 4267.

253

Id. at 4266–67.

254

IPEC, 2010 JOINT STRATEGIC PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT 17 (2010), https://www.whitehouse.gov/

sites/whitehouse.gov/files/omb/assets/intellectualproperty/intellectualproperty_strategic_plan.pdf. See also IPEC,

SUPPORTING INNOVATION, CREATIVITY & ENTERPRISE, CHARTING A PATH AHEAD: U.S. JOINT STRATEGIC PLAN ON

INTELLECTUAL PROPERTY ENFORCEMENT, FY 2017–2019, 61–79 (2016), https://www.whitehouse.gov/sites/

whitehouse.gov/files/omb/IPEC/ 2016jointstrategicplan.pdf; IPEC, 2013 JOINT STRATEGIC PLAN ON INTELLECTUAL

PROPERTY ENFORCEMENT 35–37 (2013), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/IPEC/ 2013-us-ipec-

joint-strategic-plan.pdf.

U.S. Copyright Office Section 512 Report

“stay ahead of rapidly changing tactics” of illicit operators.

255

Accordingly, the JSP directs federal

agencies to conduct benchmark studies on initiatives currently in place and to consider future

multistakeholder engagement.

256

The JSP also addresses measures that search engines, social

media sites, and mobile applications can take, and recommends the use of multistakeholder

processes to develop industry standards and best practices in each area.

257

Comments submitted

in response to the development of the next JSP have addressed similar topics, including the use of

technology to address online piracy

258

and the challenges faced by creators to license content to

large internet platforms.

259

b) Internet Policy Task Force

The Department of Commerce launched the Internet Policy Task Force (“IPTF”) in 2010 to

identify public policy and operational challenges impacting the digital economy.

260

In 2013,

following a public process involving a series of stakeholder listening sessions and the receipt of

written comments, the IPTF published Copyright Policy, Creativity, and Innovation in the Digital

Economy (“Green Paper”).

261

Discussing challenges with online copyright enforcement, the Green

Paper concluded that some gaps and shortcomings in existing legal tools “may require legislative

solutions,” but that “voluntary initiatives are an important component.”

262

The Green Paper

identified the notice-and-takedown system as an issue that warranted further IPTF study and

called for a multi-stakeholder forum to identify best practices for improving its operation.

263

255

IPEC, SUPPORTING INNOVATION, CREATIVITY & ENTERPRISE at 62–64.

256

See id. at 63, 65–66.

257

See id. at 69–74.

258

IFTA, Comments Submitted in Response to IPEC’s Sept. 13, 2018, Notice of Inquiry at 4–6 (Nov. 13, 2018),

https://www.regulations.gov/document?D=OMB-2018-0009-0016. The IPEC solicited comments for the next JSP in

September 2018. As of the date of this Report, the JSP for FY 2020–2022 has not yet been released. See Request of the

U.S. Intellectual Property Enforcement Coordinator for Public Comments: Development of the Joint Strategic Plan on

Intellectual Property Enforcement, 83 Fed. Reg. 46,522 (Sept. 13, 2018).

259

RIAA & National Music Publishers Ass’n (“NMPA”), Comments Submitted in Response to IPEC’s Sept. 13, 2018,

Notice of Inquiry at 4–6 (Nov. 13, 2018), https://www.regulations.gov/document?D=OMB-2018-0009-0018.

260

The IPTF’s work on copyright policy is led by the U.S. Patent and Trademark Office and the National

Telecommunications and Information Administration. See Internet Policy Task Force, UNITED STATES PATENT &

TRADEMARK OFFICE, https://www.uspto.gov/learning-and-resources/ip-policy/copyright/internet-policy-task-force.

261

See IPTF, COPYRIGHT POLICY, CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY (2013) (“Green Paper”),

https://www.uspto.gov/sites/default/files/news/publications/copyrightgreenpaper.pdf.

262

See id. at 61.

263

See id. at 102.

U.S. Copyright Office Section 512 Report

The IPTF’s multistakeholder forum took place in 2014 and consisted of a series of

meetings throughout the country, as well as smaller working and drafting groups.

264

In April

2015, the IPTF issued a document developed by forum participants entitled DMCA Notice-and-

Takedown Processes: List of Good, Bad and Situational Practices.

265

It provides a “set of agreed upon

practices” aimed at “improv[ing] the efficiency of the handling and processing of DMCA notices

by both senders and recipients.”

266

These practices consist of common-sense guidelines aimed at

both OSPs and rightsholders, such as OSPs making notice and counter-notice instructions easily

located and understandable, and rightsholders establishing automated search parameters so that

flagging non-infringing content is minimized.

267

IV. HOW OTHER COUNTRIES HAVE TRIED TO STRIKE THE BALANCE

The inherently international nature of the internet has rendered online infringement a

global issue. Each country, however, has approached this issue differently. Despite the variations

among legal frameworks, the influence of the U.S. section 512 notice-and-takedown process is

worldwide. As the United States was the first country to adopt safe harbors for service provider

infringement liability, other countries have had the benefit of reviewing the U.S. system when

seeking to adopt their own safe harbors and processes for addressing copyright infringement on

the internet. Additionally, the U.S. government has negotiated the inclusion of provisions

modeled on section 512 and its service provider safe harbors in the intellectual property rights

chapters of many of its Free Trade Agreements (“FTAs”).

268

The FTA provisions on service

provider safe harbors require parties to provide legal incentives for service providers to cooperate

with copyright owners to deter the unauthorized storage and transmission of copyrighted

materials and to provide limitations in their law that have the effect of precluding monetary relief

against service providers for copyright infringements that they do not control, initiate, or direct,

264

See Multistakeholder Forum on the DMCA Notice and Takedown System, U.S. PATENT & TRADEMARK OFFICE,

https://www.uspto.gov/learning-and-resources/ip-policy/copyright/multistakeholder-forum-dmca-notice-and-

takedown-system.

265

DEP’T OF COMM. DMCA MULTISTAKEHOLDER FORUM, DMCA NOTICE-AND-TAKEDOWN PROCESSES: LIST OF GOOD, BAD, &

SITUATIONAL PRACTICES (2015), https://www.uspto.gov/sites/default/files/documents/

DMCA_Good_Bad_and_Situational_Practices_Document-FINAL.pdf.

266

Press Release, U.S. Patent & Trademark Office, U.S. Commerce Department Announces Digital Millennium

commerce-department-announces-digital-millennium-copyright-act.

267

See DMCA MULTISTAKEHOLDER FORUM, DMCA NOTICE-AND-TAKEDOWN PROCESSES 1, 3.

268

But see 166 Cong. Rec. S239–S240 (Jan. 15, 2020) (statement of Sen. Thom Tillis that future free trade agreements

should reflect an updated DMCA); Letter from Congressman Jerrold Nadler, Chairman of Comm. on the Judiciary of

House of Representatives and Congressman Doug Collins, Ranking Member of Comm. on the Judiciary of the House of

Representatives to Hon. Robert E. Lighthizer, United States Trade Rep. (Sept. 17, 2019),

https://judiciary.house.gov/sites/democrats.judiciary.house.gov/files/documents/Ambassador%20Lighthizer%20USMC

A%20letter%209.17.19.pdf) (stating that “we do not believe a provision requiring parties to adopt a Section 512-style

safe harbor system of the type mandated by [the United States-Mexico-Canada Agreement] should continue to be

included in future trade agreements . . . while ‘serious policy discussions are ongoing’”).

U.S. Copyright Office Section 512 Report

and that take place through systems or networks controlled or operated by them or on their

behalf. While varying in complexity, the FTAs include notice-and-takedown approaches similar

to section 512.

269

In an effort to evaluate the balance of interests between content owners and service

providers struck by different legal systems and their implication for the internet ecosystem, the

response to these shared concerns. Whether the responsibility of identifying and removing

unauthorized content is placed upon the rightsholder or the service provider varies among these

different systems. The degree of government involvement, likewise, differs.

The analysis below does not seek to examine all of the removal frameworks for online

infringing content across the globe, but to consider representative examples of different

approaches. This overview will provide some context for the later discussion in this Report

concerning potential recommendations for the current U.S. system.

269

See United States-Korea Free Trade Agreement, S. Kor-U.S., art. 18.10.30, June 30, 2007, 46 I.L.M. 642,

https://ustr.gov/trade-agreements/free-trade-agreements/korus-fta/final-text; United States-Panama Trade Promotion

Agreement, Pan.-U.S., art. 15.11.27, June 28, 2007, https://ustr.gov/trade-agreements/free-trade-agreements/panama-

tpa/final-text; United States-Colombia Trade Promotion Agreement, Colom.-U.S., art. 16.11.29, Nov. 22, 2006,

[https://web.archive.org/web/20190111223030/https://ustr.gov/trade-agreements/free-trade-agreements/colombia-

fta/final-text]; United States-Peru Trade Promotion Agreement, Peru-U.S., art. 16.11.29, Apr. 12, 2006,

https://ustr.gov/trade-agreements/free-trade-agreements/peru-tpa/final-text; United States-Oman Free Trade

Agreement, Oman-U.S., art. 15.10.29, Jan. 19, 2006, http://www.ustr.gov/trade-agreements/free-trade-agreements/oman-

fta/final-text; United States-Bahrain Free Trade Agreement, Bahr.-U.S., art. 14.10.29, Sept. 14, 2004, 44 I.L.M. 544,

http://www.ustr.gov/trade-agreements/free-trade-agreements/bahrain-fta/final-text; Dominican Republic-Central

America-United States Free Trade Agreement, Costa Rica-Dom. Rep.-El Sal.-Guat.-Hond.-Nicar.-U.S., art. 15.11.27, Aug.

5, 2004, 43 I.L.M. 514, https://ustr.gov/trade-agreements/free-trade-agreements/cafta-dr-dominican-republic-central-

america-fta/final-text; United States-Morocco Free Trade Agreement, Morocco-U.S., art. 15.11.28, June 15, 2004, 44 I.L.M.

544, http://www.ustr.gov/trade-agreements/free-trade-agreements/morocco-fta/final-text; United States-Australia Free

Trade Agreement, Austl.-U.S., art. 17.11.29, May 18, 2004, 43 I.L.M. 1248, http://www.ustr.gov/trade-agreements/free-

trade-agreements/australian-fta/final-text; United States-Chile Free Trade Agreement, Chile-U.S., art. 17.11.23, June 6,

2003, 42 I.L.M. 1026, http://www.ustr.gov/trade-agreements/free-trade-agreements/chile-fta/final-text; United States-

Singapore Free Trade Agreement, Sing.-U.S., art. 16.9.22, May 6, 2003, 42 I.L.M. 1026, https://ustr.gov/trade-

agreements/free-trade-agreements/singapore-fta/final-text. The United States was also part of the Trans-Pacific

Partnership (“TPP”) negotiations and that intellectual property chapter contained a distinct approach to OSP liability,

given the multi-party nature of those negotiations. Trans-Pacific Partnership, Feb. 4, 2016, art. 18.81-82,

https://ustr.gov/sites/default/files/TPP-Final-Text-Intellectual-Property.pdf. The United States withdrew from the TPP

in January 2017, and the remaining TPP members negotiated a separate agreement, the Comprehensive and Progressive

Agreement for Trans-Pacific Partnership. See Colin Dwyer, The TPP Is Dead. Long Live the Trans-Pacific Trade Deal, NPR

(Mar. 8, 2018, 8:01 AM), https://www.npr.org/sections/thetwo-way/2018/03/08/591549744/the-tpp-is-dead-long-live-the-

trans-pacific-trade-deal. Given that Canada and Mexico were also part of the TPP negotiations, the OSP liability articles

in the United States-Mexico-Canada Agreement (USMCA) chapter on intellectual property contains elements from both

the TPP as well as the prior FTA approaches. See United States-Mexico-Canada Agreement, Can.-Mex.-U.S., art. 20.87-

88, Nov. 30, 2018, https://ustr.gov/sites/default/files/files/agreements/FTA/USMCA/Text/20-Intellectual-Property-

Rights.pdf.

U.S. Copyright Office Section 512 Report

The Office has identified several different systems that other countries have implemented

to address online infringing content that broadly sort into three groups: (A) notice systems, (B)

verified systems, and (C) blocking. While many of the countries discussed below may utilize a

combination of two or more of the systems examined below, the particular countries discussed

are considered illustrative of that particular approach. This section concludes with a discussion

on the recent EU Digital Single Market Copyright Directive.

A. Notice Systems

Notice systems fundamentally involve a copyright owner notifying a service provider of

unauthorized content available on its system. The subsequent actions after this initial step vary

among the different notice systems. Each variation in these actions results in a different balance

of interests and responsibilities between creators and service providers in responding to

unauthorized online content.

1. Notice-and-Notice

With a notice-and-notice regime, the service provider forwards notices from copyright

owners to users, alerting them that their accounts have been linked to alleged copyright

infringement. A notice-and-notice regime generally does not impose any obligations on the user

who receives the notice, nor is there any obligation on the service provider to remove the

unauthorized content or to cancel the user’s service.

270

Notices may contain a request for

payment, in the form of a license for example, in relation to the claimed infringement.

Canada has such a notice-and-notice regime; it entered into force in January 2015.

271

Under this system, a copyright owner may send a notice of claimed infringement to a service

provider.

272

When a service provider receives such a notice, the service provider shall, “as soon as

feasible,” forward the notice to the person to whom the specified site belongs and inform the

rightsholder of its forwarding or a reason why it was impossible to do so.

273

Canada’s notice-and-

notice regime does not require that either the service provider or the user disable access to the

content. The system operates as more of an educational system rather than a legal process,

formalizing a “voluntary industry-based practice that had been in place for several years.”

274

One

270

After this process, the copyright owner may pursue litigation, with its associated costs, to have the allegedly

infringing content removed.

271

272

Id. s 41.25(1). Under this provision, a service provider is defined as a conduit, information location tool, or the

provider of “the digital memory that is used for the electronic location to which the claim of infringement relates.” Id.

273

Id. s 41.26(1).

274

Notice and Notice Regime, GOV’T OF CAN. OFFICE OF CONSUMER AFFAIRS, https://www.ic.gc.ca/eic/site/oca-

bc.nsf/eng/ca02920.html (last updated Apr. 1, 2019). See also Tr. at 358:17–22 (Apr. 8, 2019) (Matthew Schruers, CCIA)

(“[F]or a long time before the Canadian system was implemented some years ago, there was an informal inter-industry

agreement that enabled notice forwarding primarily, which is what rightsholders in that marketplace wanted.”).

U.S. Copyright Office Section 512 Report

stakeholder during the Washington, D.C. roundtable questioned the efficacy of the notice-and-

notice process in addressing infringing content online, comparing them unfavorably to some

private agreements.

275

2. Graduated Response

Graduated response systems generally involve a service provider undertaking an

escalating series of actions after an initial warning to a user regarding alleged infringing activities.

The number of warnings issued by the service provider varies across different graduated

response systems. After the user has received a warning, subsequent actions by the service

provider may include suspension and termination of the user’s service. The graduated response

system rests on two different principles: that service providers have an obligation to participate

in the scheme because they otherwise would receive an unfair benefit from infringement

connected to their service, and that the system provides an allegedly cheaper enforcement

mechanism than seeking enforcement against individual users.

276

In 2009, France established the High Authority for the Diffusion of Works and the

Protection of Rights on the Internet (“Hadopi”), an administrative agency to oversee its graduated

response system.

277

Under this graduated response framework, a rightsholder may inform

Hadopi of unauthorized downloads on or via certain websites. The Commission for Protection of

Rights, a unit of Hadopi, reviews any evidence of infringement and then sends a warning to the

user informing them of the following: any facts alleged against them, the user’s obligation to

monitor access to the internet using their service,

278

the existence of security measures, and the

legal remedies available to the copyright owner.

279

If the user is found to have continued

275

Tr. at 362:17–22 (Lui Simpson, AAP) (“In the past, there were some . . . private cooperation agreements that were

favorable to rightsholders in the sense that something was being done. But on the notion that notice and notice alone

will accomplish anything, I think we’ve seen frankly that it doesn’t.”). The notice-and-notice system isn’t the only

measure Canada has to address online infringement: the Federal Court of Canada issued its first site blocking order in

November 2019, against pirate subscription streaming sites. See Bell Media Inc. et al. v. GOLDTV.BIZ, 2019 FC 1432

(Can.) (stopping the infringement of the plaintiffs’/rightsholders’ works on particular streaming sites); see also Barry

Sookman, Site Blocking Orders come to Canada: GoldTV.biz (Nov. 18, 2019),

http://www.barrysookman.com/2019/11/18/site-blocking-orders-come-to-canada-bell-media-v-goldtv-biz/.

276

See Nicholars Suzor & Brian Fitzgerald, The Legitimacy of Graduated Response Schemes in Copyright Law, 34 UNSW L.J.

1, 3–4 (2011).

277

Code de la Properiété Intellectuelle [CPI] [Intellectual Property Code], art. L. 331-12–45 (Fr.). The French

Constitutional Council struck down the first iteration of Hadopi as an unconstitutional grant of authority to a non-

judicial body. Specifically, the court found that the authority to terminate an individual’s access to the internet should

be made by a court after a careful balancing of interests and not by an agency, as internet access affects an individual’s

right to free expression. See Conseil Constitutionnel [CC] [Constitutional Court] decision No. 2009-580, June 10, 2009,

J.O. 9675 (Fr.), https://www.conseil-constitutionnel.fr/sites/default/files/2018-10/2009_580dc.pdf.

278

Under French Law, a person with access to internet services has an obligation to ensure that his connection is not

used for infringing reproductions or communications to the public. Code de la Properiété Intellectuelle [CPI]

[Intellectual Property Code], art. L. 336-3 (Fr.).

279

Id. art. L. 331-25.

U.S. Copyright Office Section 512 Report

engaging in unlawful activities after six months, the Commission for Protection of Rights may

initiate the second stage of the graduated response system by sending another warning by email

and registered letter. If infringement is still occurring after one year from the second warning, the

Commission for the Protection of Rights will inform the copyright owner that prosecution is

likely and subsequently may send the file to the public prosecutor’s office.

280

As of the date of this

Report, Hadopi still operates as France’s “anti-piracy agency” but not necessarily with the same

authority as originally enacted. However, its structure and position with the French government

are likely to change with a potential merger among different agencies.

281

3. Notice-and-Staydown

A notice-and-staydown system essentially collapses the steps discussed above under the

other notice systems into a single responsibility of the service provider to prevent the

reappearance of the same or similar

282

infringing content. Under a notice-and-staydown

framework, a takedown notice from a rightsholder generally triggers a duty for the service

provider to proactively identify and remove all instances of the infringing content and prevent

future uploads. Service providers have depended on technology, such as various filtering

systems, in order to meet the obligations under this duty.

283

Germany’s notice-and-staydown framework, for example, is predicated on the secondary

liability theory of Störerhaftung, under which an intermediary who knowingly and causally

facilitates a third party’s conduct that directly infringes copyright may incur liability, but only for

280

Response Graduee [Graduated Response], HADOPI

[http://web.archive.org/web/20170702013530/https://www.hadopi.fr/usages-responsables/nouvelles-libertes-nouvelles-

responsabilites/reponse-graduee]; see also Nathan Lovejoy, Note, Procedural Concerns with the HADOPI Graduated

Response Model, HARV. J.L. & TECH. DIG. (Jan. 13, 2011), https://jolt.law.harvard.edu/digest/procedural-concerns-with-

the-hadopi-graduated-response-model.

281

Project de Loi 2488 du 5 décembre 2019 Relatif à la Communication Audiovisuelle et à la Souveraineté Culturelle à

l’ère Numérique [Bill no. 2488 of December 5, 2019, on the Audiovisual Communication and Cultural Sovereignty in the

Digital Age] (Fr.), http://www.assemblee-nationale.fr/dyn/15/textes/l15b2488_projet-loi. As of the time of this Report,

the bill was still pending. Hadopi released a report in December 2019, finding that legal consumption is increasing and

illicit consumption of digital material is decreasing. HADOPI, BAROMÈTRE DE LA CONSOMMATION DE BIENS CULTURELS

DÉMATÉRIALISÉS 2019: UNE CONSOMMATION LÉGALE PAYANTE EN HAUSSE ET DES PRATIQUES ILLICITES EN RECUL

[BAROMETER OF THE CONSUMPTION OF DEMATERIALIZED CULTURAL GOODS 2019: PAYING LEGAL CONSUMPTION IS INCREASING

AND ILLICIT PRACTICES ARE DECREASING] (Dec. 5, 2019) (Fr.), https://www.hadopi.fr/actualites/barometre-de-la-

consommation-de-biens-culturels-dematerialises-2019-une-consommation.

282

Some frameworks only provide a duty to prevent the re-upload of the identical infringement of the identical work

while other systems provide for duties to prevent upload of similar infringements of the identical work, as long as the

infringement is as obvious as the first infringement.

283

Content recognition technology relies on algorithms that can filter and categorize various types of content, reducing

the use and dependence on human reviewers. For example, German company ivitec has developed market-ready

video fingerprinting and automatic content recognition software solutions. About Us, IVITEC,

https://ivitec.com/about.html.

U.S. Copyright Office Section 512 Report

injunctive relief.

284

The intermediary is liable only to the extent that it violates certain standards

of conduct relating to the duty of care, including the duty to investigate infringing content.

285

When notified of a single instance of clearly infringing content, a service provider under the

German notice-and-staydown framework, therefore, must take some type of action, such as using

filtering technology, to ensure (1) takedown and staydown of the infringing material and (2)

prevention of similar infringements of the same kind.

286

German service providers have

employed various different approaches in filtering content in order to meet the duty of care.

Hash value filters help identify identical files to ensure that the files named in a notice are

removed or blocked.

287

Keyword filters and other text-based measures vary in efficiency

depending on the context; while keyword filters do not capture file names that do not use the title

of the work, these types of filters are efficient in the user-generated content sites and search

engines in which search terms must refer to the title of the work in order to be found by users.

288

B. Verified Systems

Due to a large volume of notices sent to service providers, some countries have designated

a third-party organization or a governmental agency to review and verify the validity of each

notice of alleged copyright infringement before further action is taken. This process initially shifts

the responsibility to review every notice to another entity other than the service provider.

1. Third-Party

With a third-party verified system, a third-party organization, generally a stakeholder

organization that is familiar with copyright and rightsholders, reviews notices to verify the

identity of the sender and the copyright owner as well as the claim of infringement. The third-

284

See Michael Gruenberger & Adolf Dietz, Germany, in, INTERNATIONAL COPYRIGHT LAW & PRACTICE GER-170, §

8[1][c][i] (Lionel Bently ed., 2019).

285

The scope of the duty to investigate depends on whether the party can reasonably carry out an investigation. See id.

286

The German Federal Court of Justice held in Atari Europe v. Rapidshare that the service provider, after being notified

that a user shared an unauthorized version of a video game using its services, should have checked whether

unauthorized copies of a video game were stored on its servers by other users. See Bundesgerichtshof [Federal Court of

Justice of Germany], Atari Europe v. Rapidshare, I ZR 18/11, WORLD INTERMEDIARY LIABILITY MAP: COURT DECISION:

GERMANY (July 12, 2012) (summarizing the case in English), https://wilmap.law.stanford.edu/entries/

bundesgerichtshof-federal-court-justice-germany-atari-europe-v-rapidshare-i-zr-1811; see also AAP Initial Comments at

26 n.67 (“This ‘proportionality test’ under Germany law requires that the ISP take measures that are proportionate to

the likelihood of infringement by or through the ISP, taking into consideration the cost and effectiveness of the

measures.”); JAN BERND NORDEMANN, LIABILITY OF ONLINE SERVICE PROVIDERS FOR COPYRIGHTED CONTENT—REGULATORY

ACTION NEEDED? IN-DEPTH ANALYSIS FOR THE IMCO COMMITTEE OF THE EUROPEAN PARLIAMENT, at 20 (2018)

IP/A/IMCO/2017-08-PE 614.207, https://www.europarl.europa.eu/RegData/etudes/IDAN/2017/614207/

IPOL_IDA(2017)614207_EN.pdf.

287

See Jan Bernd Nordemann, Liability for Copyright Infringements on the Internet; Host Providers (Content Providers)—The

German Approach, 2 J. INTELL. PROP., TECH. & ELEC. COMM. L. 37, 44 (2001).

288

See id. at 45.

U.S. Copyright Office Section 512 Report

party organization then forwards the notice to the relevant service provider, who must then

remove the content. This type of system facilitates cooperation between rightsholders and service

providers by placing the majority of the burden to review and process notices on a third party.

Part of Japan’s approach to liability in the online environment includes a component that

allows for third-party verification of notices. Japan’s Provider Liability Limitation Act

289

provides

for a takedown process that relies on third-party organizations, generally referred to as a

“Reliability Verification Organization” (“RVO”).

290

The RVO, which must have expert knowledge

in copyright, verifies the identity of the person who has sent the takedown notice, that the sender

is the copyright owner, and that the content infringes a copyright.

291

Upon verification, the

service provider must remove the allegedly infringing content, otherwise the service provider

may be liable for the alleged infringement.

292

2. Government Agency

Under other verified systems, a government agency may play a role in reviewing the

specific purview and the scope of the reviewing agency’s authority depend on the particular

country’s legal framework. Similarly, the involvement of the government agency in pursuing

other enforcement responsibilities varies among countries as well.

The Italian independent regulatory authority, Autorità per la Garanzie nelle

Comunicazioni (“AGCOM”), oversees various aspects of communications in the country and has

289

Kono tokutei denki tsūshin ekimu teikyō-sha no songai baishō sekinin no seigen oyobi hasshinsha jōhō no kaiji ni

kan [Act on the Limitation of Liability for Damages of Specified Telecommunications Service Providers and the Right to

Demand Disclosure of Identification Information of the Senders], Act No. 137 of 2001 (Japan), translated in UNESCO,

WORLD ANTIPIRACY OBSERVATORY 4 (2009), http://www.unesco.org/culture/pdf/antipiracy/Japan/

Jp_%20LimitLiability_Telecom_en.

290

Purobaida sekinin seigen-hō gaidorain-tō kentō kyōgi-kai [Provider Liability Limitation Act Guidelines Review

Council], Purobaida sekinin seigen-hō chosakken kankei gaidorain [Provider Liability Limitation Act Guidelines

Relating to Copyright] V.1. (Nov. 2003) (Japan), translated in TELESA, PROVIDER LIABILITY LIMITATION ACT GUIDELINES

RELATING TO COPYRIGHT 14 (2002) https://www.telesa.or.jp/wpcontent/uploads/consortium/provider/pdf/

guidelines_copyright.pdf.

291

Kono tokutei denki tsūshin ekimu teikyō-sha no songai baishō sekinin no seigen oyobi hasshinsha jōhō no kaiji ni

kan [Law Concerning the Limits of Liability for Damages of Specified Telecommunications Service Providers and the

Right to Request Disclosure of Identification Information of the Senders], Law No. 137 of 2001, art 4, art. 5 guidelines

(Japan), translated in UNESCO, WORLD ANTIPIRACY OBSERVATORY 4 (2009), http://www.unesco.org/culture/pdf/anti-

piracy/Japan/Jp_%20LimitLiability_Telecom_en; see also Purobaida sekinin seigen-hō gaidorain-tō kentō kyōgi-kai

[Provider Liability Limitation Act Guidelines Review Council], Purobaida sekinin seigen-hō chosakken kankei

gaidorain [Provider Liability Limitation Act Guidelines Relating to Copyright] Nov. 2003 (Japan), translated in TELESA,

PROVIDER LIABILITY LIMITATION ACT GUIDELINES RELATING TO COPYRIGHT 14 (2002) https://www.telesa.or.jp/wp-

content/uploads/consortium/provider/pdf/guidelines_copyright.pdf.

292

See Tatsuhiro Ueno & Teruo Doi, Japan, in, INTERNATIONAL COPYRIGHT LAW AND PRACTICE JAP-93, § 8[4][c][ii] (Lionel

Bently ed., 2019).

U.S. Copyright Office Section 512 Report

administrative copyright enforcement authority, including the removal of unauthorized

content.

293

Under the Italian framework, the rightsholder, upon finding infringing content,

initiates the proceedings by filing a complaint with AGCOM via a form available on the agency’s

website.

294

Upon review of the formal and substantive requirements for a complaint, AGCOM

will decide whether to dismiss or continue the enforcement process. If the rightsholder’s

complaint meets the requirements, AGCOM will then send a communication to the service

provider and user, detailing the works involved and AGCOM’s preliminary findings.

295

Service

providers and users can either file a counter-claim or voluntarily remove the content and

communicate this removal to AGCOM.

296

If the server on which the infringing works are found is

in Italy, then AGCOM can order the hosting service provider to remove the works or disable

access to them.

297

If the server is located abroad, AGCOM may order ISPs to disable access to the

infringing website for users located in Italy.

298

Expedited proceedings are available to respond to

a massive violation or a serious economic exploitation of the work.

299

3. Inter-Governmental Commission

In some countries, many different government agencies participate in the review and

investigation of claims of online infringement by copyright owners. This framework generally

involves the collaboration of an administrative entity that reviews evidence of online

infringement, with a judicial body enforcing an order to remove that infringing content.

293

See Regolamento In Materia di Tutela del Diritto d’Autore Sulle Reti di Comunicazione Elettronica E Procedure

Attuative ai Sensi del Decreto Legislativo 9 Aprile 2003, N. 70 [Regulation on the Protection of Copyright on Electronic

Communication Networks and Implementation Procedures in Accordance with Legislative Decree 9 April 2003, No.

70], arts. 2, 8 (It.), https://www.agcom.it/documents/10179/0/Documento/b0410f3a-0586-449a-aa99-09ac8824c945; see also

Gianluca Campus, Italian Public Enforcement of Online Copyright Infringement: New Powers and Procedures for AGCOM,

KLUWER COPYRIGHT BLOG (Dec. 14, 2018), http://copyrightblog.kluweriplaw.com/2018/12/14/italian-public-enforcement-

of-online-copyright-infringement-new-powers-and-procedures-for-agcom/.

294

See Regolamento In Materia di Tutela del Diritto d’Autore Sulle Reti di Comunicazione Elettronica E Procedure

Attuative ai Sensi del Decreto Legislativo 9 Aprile 2003, N. 70 [Regulation on the Protection of Copyright on Electronic

Communication Networks and Implementation Procedures in Accordance with Legislative Decree 9 April 2003, No.

70], art. 6 (It.).

295

Id. art. 7.

296

Id. art. 7.

297

Id. art. 8.

298

Id. art. 8. AGCOM has ordered the blocking of several torrent sites that were popular in Italy. See Andy, Italy Orders

Blockade of Three More Torrent Sites, TORRENTFREAK (June 12, 2014), https://torrentfreak.com/italy-orders-blockade-of-

three-more-torrent-sites-140612/.

299

Regolamento In Materia di Tutela del Diritto d’Autore Sulle Reti di Comunicazione Elettronica E Procedure Attuative

ai Sensi del Decreto Legislativo 9 Aprile 2003, N. 70 [Regulation on the Protection of Copyright on Electronic

Communication Networks and Implementation Procedures in Accordance with Legislative Decree 9 April 2003, No.

70], art. 9 (It.).

U.S. Copyright Office Section 512 Report

Spain’s Second Section for the Commission for Intellectual Property,

300

for example,

reviews notices of allegedly unauthorized content and then may work with the courts to seek

judicial action to remove the unauthorized works. A rightsholder may apply to the Second

Section to take action against a service provider for hosting allegedly infringing content.

301

The

application must identify the relevant content and provide evidence of infringement of that

content and of a previous, unsuccessful takedown request, such as an email request sent to the

service provider.

302

After receiving the application, the Second Section requires the service

provider to remove the infringing content within 48 hours or explain its reason for not doing so.

303

If the service provider does not adequately respond, then the Second Section may take

appropriate measures to interrupt the infringing service by passing the case to the court to rule on

whether the site should be shut down.

304

C. Blocking

A number of countries rely on website blocking as an enforcement method that can target

specific digital piracy sites.

305

Europe in particular has a long history with website blocking: the

European Union first adopted a provision requiring member states to provide for website

blocking in 2001,

306

and some of the earliest DNS blocking injunctions were issued in Denmark

beginning in 2006.

307

Recent studies have shown that website blocking has operated as an

effective tool in addressing digital piracy, despite the familiar misperceptions about its efficacy

and alleged potential for abuse.

308

Currently, more than 40 countries have either enacted or are

300

Part of the Ministry of Education, Culture and Sport. Intellectual Property Law art. 158(2)(b) (R.D.L. 1996, 1,

amended 2014) (Spain).

301

Intellectual Property Law art. 158ter(3).

302

Id.

303

Id.

304

Id.

305

See Tr. at 302:1–6 (Apr. 8, 2019) (Lui Simpson, AAP) (“AAP encourages the U.S. Copyright Office to take account of

the disruptive effect website blocking has on blatantly pirate sites. There are now some 40 countries with a website

blocking statute or are considering its adoption.”).

306

Directive 2001/29 of the European Parliament and of the Council of 22 May 2001 on the Harmonisation of Certain

Aspects of Copyright and Related Rights in the Information Society, art. 8(3), 2001 O.J. (L 167) (EC) (“InfoSoc

Directive”).

307

Ellen Marja Wesselingh, Website Blocking: Evolution or Revolution? 10 Years of Copyright Enforcement by Private Third

Parties, REVISTA D'INTERNET, DRET I POLÍTICA 38–39 (Oct. 2014), https://idp.uoc.edu/articles/10.7238/idp.v0i19.2422/

galley/2482/download/. The first website blocking order in the United Kingdom was issued in 2011. Twentieth

Century Fox Film Corp & Ors v British Telecomms. Plc [2011] EWHC 1981 (Ch) 2714 (Eng.).

308

See Brett Danaher et al., Website Blocking Revisited: The Effect of the UK November 2014 Blocks on Consumer Behavior at 17

(Apr. 18, 2016) (unpublished article), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2766795; see also

RETTIGHEDSALLIANCEN, ANNUAL REPORT 2017, 5 (Mar. 2018), https://rettighedsalliancen.dk/wpcontent/uploads/

2018/08/ENGB_RettighedsAlliancen2018.pdf (noting average 75% decrease in Danish IP traffic to piracy sites in the

wake of DNS blocking orders).

U.S. Copyright Office Section 512 Report

under an obligation to enact some form of no-fault injunctive relief to block access to piracy

sites.

309

According to an Information Technology and Innovation Foundation (“ITIF”) 2016 study,

at least twenty-five countries have used website blocking as a policy and legal measure against

310

The application of website blocking and its relationship to other

measures varies across among different countries, with some using the judicial system,

311

regulatory structure,

312

or voluntary agreements between service providers and rightsholders

313

block websites.

1. Examples of Blocking Actions

While many countries have utilized website blocking to address digital piracy, the legal

basis for these actions, the jurisdictional scope, and the requirements and knowledge standards

applicable to the service provider all vary across the different regimes. For example, some

blocking orders apply only to the particular piracy site and any mirror sites, while more flexible

dynamic blocking orders reflect the practices of certain piracy websites to quickly shift domain

names or even infringing content from one website to another.

314

309

This includes the countries of the European Union as well as Argentina, Australia, Iceland, India, Israel, Indonesia,

Malaysia, Mexico, Norway, Russia, Singapore, South Korea, and Thailand. See In the Matter of an Application Pursuant to

Sections 24, 24.1, 36, and 701(a) of the Telecommunications Act, 1993 to Disable On-line Access to Piracy Sites, Application

Before the Canadian Radio-television and Telecommunications Commission 4–6 (Mar. 29, 2018) (written intervention of

the Motion Picture Association–Can.), reposted at TORRENTFREAK, https://torrentfreak.com/images/mpa-can.pdf. In

January 2018, the FairPlay Coalition submitted an application to the Canadian Radio-television and

Telecommunications Commission, requesting that the Commission create a regime to identify and require ISPs to block

“websites and online services that are blatantly, overwhelmingly, or structurally engaged in copyright piracy”; the

Commission denied the application in October 2018 on the grounds that it lacked jurisdiction under the

Telecommunications Act to implement such a regime. See Canadian Radio-television and Telecommunications

Commission, Telecom Decision CRTC 2018-384 (Oct. 2, 2018), https://crtc.gc.ca/eng/archive/2018/2018-384.htm.

310

NIGEL CORY, ITIF, HOW WEBSITE BLOCKING IS CURBING DIGITAL PIRACY WITHOUT “BREAKING THE INTERNET” 12–13

(2016), http://www2.itif.org/2016-website-blocking.pdf. These countries include Argentina, Australia, Austria, Belgium,

Chile, Denmark, Finland, France, Germany, Greece, Iceland, India, Indonesia, Ireland, Italy, Malaysia, Norway,

Portugal, Russia, Saudi Arabia, Singapore, South Korea, Spain, Turkey, and the United Kingdom. See also Nigel Cory,

The Normalization of Website Blocking Around the World in the Fight Against Piracy Online, ITIF (June 12, 2018),

https://itif.org/publications/2018/06/12/normalization-website-blocking-around-world-fight-against-piracy-online;

Barry Sookman, Site Blocking Orders Come to Canada: GoldTV.biz (Nov. 18, 2019), http://www.barrysookman.com/

2019/11/18/site-blocking-orders-come-to-canada-bell-media-v-goldtv-biz/.

311

See infra discussions of United Kingdom, Australia, and India regimes.

312

In 2017, the Russian telecoms regulator ordered local service providers to block 8,000 pirate websites. See Cory, The

Normalization of Website Blocking Around the Worl.

313

See Bill Toulas, Portugal is Extending Their Voluntary Piracy Blocking to Live Sports Streams, TECHNADU (Jan. 21, 2019),

https://www.technadu.com/portugal-extending-piracy-blocking-to-live-sports/55280/.

314

See Cory, The Normalization of Website Blocking.

U.S. Copyright Office Section 512 Report

a) UK’s 97A Actions

The United Kingdom has relied upon the civil enforcement mechanisms available under

section 97A of the Copyright, Designs and Patents Act of 1988 to prevent consumers from

accessing infringing content on websites. Under this provision, the High Court has the power to

grant an injunction against a service provider when the service provider has actual knowledge of

another person using their service to infringe copyright.

315

When determining whether a service

provider has actual knowledge, the statute states that the court shall consider whether the service

provider has received notice of the infringement in question.

316

Twentieth Century Fox v. BT was

the first case in which the High Court issued an injunction resulting in blocking UK internet

users’ access to the infringing website, setting legal precedent for rightsholders in the UK to force

service providers to block websites that facilitate copyright infringement.

317

Similar blocking

injunctions were issued in subsequent cases, clarifying the steps required to block websites in this

context.

318

Both the courts and stakeholders have acknowledged that the process is expensive

319

and of limited application outside the UK.

320

The UK case law has also specifically addressed the

practical issues of blocking illegal like streams by IP blocks, referred to as “super injunctions.”

321

b) Australia’s Court-Ordered Blocking

Under Australia’s copyright law, a copyright owner may apply to the Federal Court of

Australia to grant an injunction that requires a carriage ISP to take such steps as the Court

considers “reasonable” to disable access to a foreign online location whose primary purpose or

315

316

Id.

317

Twentieth Century Fox et al. v. British Telecoms. Plc [2011] EWHC 1981 (Ch) (Eng.).

318

See, e.g., Dramatico Entertainment Ltd v. British Sky Broadcasting Ltd [2012] EWHC (Ch) 268 (Eng.); EMI Records

Ltd v. British Sky Broadcasting Ltd [2013] EWHC (Ch) 379 (Eng.); Football Association Premier League Ltd v. British

Sky Broadcasting Ltd [2013] EWHC (Ch) 2058 (Eng.). These cases discussed issues relevant in the process of issuing a

court-ordered injunction including what is satisfactory evidence and who should be party to the action as the

procedure in making an application for a blocking injunction is not clear in the law. See Althaf Marsoof, The Blocking

Injunction—A Critical Review of its Implementation in the United Kingdom Within the Legal Framework of the European Union,

46 INT’L REV. INTELL. PROP. & COMPETITION L. 632, 647–648 (Sept. 1, 2015).

319

See Twentieth Century Fox et al. v. British Telecoms. Plc [2011] EWHC 1981 (Ch), [189] (Eng.).

320

The website in Twentieth Century Fox case was moved to an offshore location outside the EU; the blocking order

blocked only UK internet user access, mitigating the impact of copyright infringement within the UK only. See

Twentieth Century Fox et al. v. British Telecoms. Plc [2011] EWHC 1981(Ch), [2] (Eng.).

321

See The Football Association Premier League Ltd v. British Telecommunications PLC et al. [2017] EWHC 480 (Ch); see

also Gianluca Campus, “Super Injunctions” and “Fast Injunctions”: Enforcement Against the Illicit Distribution of Sport

Events, KLUWER COPYRIGHT BLOG (Dec. 30, 2019), http://copyrightblog.kluweriplaw.com/2019/12/30/super-injunctions-

and-fast-injunctions-enforcement-against-the-illicit-distribution-of-sport-events/; Theo Savvides & Sean Ibbetson, The

UK’s First “Live” Blocking Order Prevents Users Accessing Premier League Football Streams, KLUWER COPYRIGHT BLOG (Apr.

18, 2017), http://copyrightblog.kluweriplaw.com/2017/04/18/the-uks-first-live-blocking-order-prevents-users-accessing-

premier-league-football-streams/.

U.S. Copyright Office Section 512 Report

primary effect is the infringing or facilitation of infringement of copyright and is infringing or

facilitating infringement of copyright.

322

“Reasonable steps” may include the carriage ISP

blocking domain names, URLs, and IP addresses that provide access to the online location

specified in the injunction.

323

The recent amendment to Australia’s copyright law, which added

“primary effect” of infringing or facilitating the infringement of copyright to the injunction

standard, means that it is no longer necessary to establish the intent of the site operator when

seeking an injunction; the Federal Court merely has to look at the evidence of the effect of the

site.

324

Rightsholders have used this framework successfully to block piracy-linked online

services. In Roadshow Films Pty Limited v Telstra Corporation Limited, the Federal Court of Australia

issued an order to block access to several overseas file-sharing sites including The Pirate Bay and

Torrentz.

325

c) India’s Site Blocking

India has recently applied blocking orders seeking to address infringement beyond a

single site. The Delhi High Court, in the 2019 case UTV v. 1337x.to, recently established a

judicially-based process for rightsholders to seek approval for “dynamic injunctions” directed

against mirror/redirect piracy websites, avoiding the efforts of getting judicial orders for each

mirror site.

326

This remedy attempts to address the “whack-a-mole” effect of mirror websites by

permitting a plaintiff to implead additional mirror websites (including URL, domain name, and

IP address changes) to the same injunction order, as long as they all provide access to the same

main website. India’s Civil Procedure Code permits the Delhi High Court to issue dynamic

injunctions as “necessary for the ends of justice,” per its own discretion.

327

D. European Union Digital Single Market Copyright Directive

In 2019, the European Union addressed the balance between content holders and service

providers in the context of digital piracy with the Digital Single Market Copyright Directive

(“DSM Copyright Directive”).

328

Article 17 of the DSM Copyright Directive addresses the “value

322

323

Id. s 115A(2B).

324

Id. s 115A(1)(b).

325

Roadshow Films Pty Ltd. v. Telstra Corp. Ltd. [2016] FCA 1503 (15 Dec. 2016) (Austl.).

326

UTV Software Comms. Ltd. & Ors. v. 1337x.to & Ors. [2019] CS(COMM) 724/2017 (Del. 10 Apr. 2019)) (India); see also

Nigel Cory, India and Website Blocking: Courts Allow Dynamic Injunctions to Fight Digital Piracy, ITIF: INNOVATION FILES

(May 29, 2019), https://itif.org/publications/2019/05/29/india-and-website-blocking-courts-allow-dynamic-injunctions-

fight-digital.

327

CODE CIV. PROC. 1908, § 151 (India).

328

Directive 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related Rights

in the Digital Single Market and Amending Council Directives 96/9/EC and 2001/29/EC, 2019 O.J. (L. 130) (“DSM

by the Council on April 15, 2019, and published in the Official Journal of the European Union on May 17, 2019. See The

U.S. Copyright Office Section 512 Report

gap” concept that online content sharing platforms obtain unreasonable value from enabling their

users to make available copyrighted content, without guaranteeing that rightsholders receive

their share of the value or remuneration from such exploitation of their works. In order to

“bridge the gap,” the DSM Copyright Directive seeks to ensure that rightsholders receive

appropriate remuneration for the use of their works online by promoting a “licensing market

between rightsholders and online content-sharing service providers” which preserves a

“reasonable balance between both parties.”

329

These provisions, however, do not affect the

contractual freedom of rightsholders who are not obliged to give an authorization or to enter into

licensing agreements.

330

The DSM Copyright Directive targets “online content sharing service providers”

331

whose

main purpose is to store and enable users to upload and share a large amount of content.

332

provider will only qualify as an “online content sharing service provider” if it organizes the

content and promotes it for profit-making purposes.

333

According to the DSM Copyright

Directive, providing public access to copyright-protected works uploaded by its users qualifies as

an act of communication to the public or an act of making available to the public and therefore the

online content-sharing service provider must obtain authorization, including via a licensing

agreement, from the rightsholder.

334

If no authorization is granted, the content sharing service

provider is thus liable for unauthorized acts of communication to the public unless it can

demonstrate that it has made best efforts to obtain authorization; made best efforts to ensure the

EU Copyright Directive Passes—But Member States Remain Split on Upload Filters, LEXOLOGY (May 13, 2019),

https://www.lexology.com/library/detail.aspx?g=ca0b067c-5061-4cf7-9a15-ed7f38aef601. Member States have two years

to amend, if necessary, their respective domestic laws to reflect the DSM Copyright Directive’s provisions. See DSM

https://www.bbc.com/news/technology-51240785.

329

DSM Copyright Directive, recital 61. See also Tr. at 286:2–7 (Apr. 8, 2019) (Eric Cady, IFTA) (“In terms of

developments, we are encouraged by the European Parliament’s recent approval of the Copyright Directive, to the

extent that it recognizes the serious need to rebalance the notice and takedown framework with respect to online

content sharing service providers.”).

330

DSM Copyright Directive, recital 61.

331

See DSM Copyright Directive, recital 66.

332

EU law generally applies a different liability doctrine to active hosting service providers as opposed to passive or

“neutral” service providers. See generally, JAN BERND NORDEMANN, LIABILITY OF ONLINE SERVICE PROVIDERS FOR

COPYRIGHTED CONTENT—REGULATORY ACTION NEEDED? IN-DEPTH ANALYSIS FOR THE IMCO COMMITTEE OF THE EUROPEAN

PARLIAMENT, at 20 (2018) IP/A/IMCO/2017-08-PE 614.207, https://www.europarl.europa.eu/RegData/etudes/IDAN/2017/

614207/IPOL_IDA(2017)614207_EN.pdf.

333

DSM Copyright Directive, art. 2(6), recital 62. These particular service providers do not include providers of services

such as not-for-profit online encyclopedias, not-for-profit educational and scientific repositories, open source software

developing and sharing platforms, providers of electronic communications services as defined in Directive EU

2018/1972, online marketplaces, business-to-business cloud services and cloud services that allow users to upload

content for their own use. Id.

334

DSM Copyright Directive, art. 17(1).

U.S. Copyright Office Section 512 Report

unavailability of specific works in accordance with high industry standards; and has acted

expeditiously, upon receiving a sufficiently substantiated notice from the rightsholder, to disable

access to or to remove from its website the notified works, and made best efforts to prevent future

uploads of these works.

335

The DSM Copyright Directive explains that these obligations “should

not lead to Member States imposing a general monitoring obligation.”

336

Several provisions of the DSM Copyright Directive, particularly Article 17, have generated

significant controversy. Platforms such as Wikimedia and Reddit have claimed that the new

requirements will make “all platforms hosting user-generated content . . . legally responsible for

users uploading copyrighted content . . . leading to the creation of filters that will likely be error-

prone and abused by copyright trolls.”

337

Supporters of Article 17, such as the Independent Music

Companies Association, PRS for Music, and other rightsholder groups, have stated that the

provision will rebalance the online creative platforms and create a “fair and functioning market

for creative works of all kinds on the Internet.”

338

Additionally, reports indicate that challenges

with the national transposition of the Directive, including potential errors in certain translations,

have appeared.

339

The European Commission has organized a stakeholder dialogue to discuss

best practices to ensure the cooperation between content-sharing service provider s and

rightsholders for Article 17, and to identify the necessary actions that content-sharing service

providers need to take in implementing the provision.

340

Implementation of the Directive

continues at the national level.

335

DSM Copyright Directive, art. 17(4).

336

DSM Copyright Directive, recital 66, art. 17(8).

337

James Vincent, European Wikipedias have been Turned Off for the Day to Protest Dangerous Copyright Laws, THE VERGE

(Mar. 21, 2019, 6:30 AM), https://www.theverge.com/2019/3/21/18275462/eu-copyright-directive-protest-wikipedia-

twitch-pornhub-final-vote. See also Tr. at 301:16–18 (Apr. 8, 2019) (Matthew Schruers, CCIA) (“This is a source of

business investment deterrents and potential risk to free speech and consumer expression interests.”); Tr. at 311:11–13

(Apr. 8, 2019) (Abby Volmer, GitHub) (“[W]hether or not the . . . Directive actually says the word ‘filtering,’ the reality

is the requirements are going to incentivize a lot of platforms to filter.”).

338

Daniel Sanchez, Critics Decry “A Dark Day for Internet Freedom” as European Parliament Approves the Copyright Directive,

DIGITAL MUSIC NEWS (Mar. 26, 2019), https://www.digitalmusicnews.com/2019/03/26/copyright-directive-approved/

(quoting Robert Ashcroft, Chief Executive of PRS for Music, “This is about creating a fair and functioning market for

creative works of all kinds on the Internet.”); see also Copyright: Say No to Scaremongering and Yes to Creators Getting Paid,

INDEP. MUSIC COS. ASS’N (June 28, 2018), https://impalamusic.org/content/copyright-say-no-scaremongering-and-yes-

creators-getting-paid.

339

See Eleonora Rosati, DSM Directive Series #5: Does the DSM Directive Mean the Same Thing in all Language Versions? The

Case of “Best Efforts” in Article 17(4)(a), THE IPKAT (May 22, 2019), http://ipkitten.blogspot.com/2019/05/dsm-directive-

series-5-does-dsm.html; see also Paul Keller, A Better Way to Implement Article 17? New German Proposal to Avoid

Overblocking, COMMUNIA (Apr. 15, 2020), https://www.communia-association.org/2020/04/15/better-way-implement-

article-17-new-german-proposal-avoid-overblocking/.

340

Stakeholder Dialogue on the Application of Article 17 of Directive on Copyright in the Digital Single Market, EUR. COMM.

(Feb. 10, 2020), https://ec.europa.eu/digital-single-market/en/stakeholder-dialogue-application-article-17-directive-

U.S. Copyright Office Section 512 Report

V. HIGH-LEVEL FINDINGS AND GUIDING PRINCIPLES

A. Guiding Principles for the Study

Perhaps more so than any recent study it has undertaken, the Copyright Office’s Section

512 Study has benefited from an extensive public record: the Office held five days of public

roundtables in three cities, featuring over 150 participants; over 92,000 comments were received

across three separate rounds of public comments; and literal volumes have been written by

academics, think tanks, interest groups, and others on the topics under consideration. The proper

balance of intermediary safe harbors and liability online is a topic on which few stakeholders

have no opinion, and passions (as well as rhetoric) run high on all sides.

One thing that has become abundantly clear is that no potential solution(s) will please

everybody. Despite this fact, the Copyright Office has taken seriously Congress’ request to

evaluate the present-day effectiveness of section 512 in a fair, neutral manner and provide a set of

recommendations for ways to improve the system while continuing to secure the benefits of these

powerful technologies for creators, OSPs, and users. In weighing the implications of the

contrasting world-views displayed by participants on various sides of the issue, it became

necessary for the Office to outline a set of guideposts to follow in conducting its review and

making its recommendations.

1. Copyright Protection Online Must be Meaningful and Effective

The framers of the Constitution recognized the importance of providing limited

protections for writings and discoveries to “promote the Progress of Science and useful Arts,”

341

and Congress has repeatedly reaffirmed this importance by adopting various iterations of the

342

The resulting U.S. copyright framework provides “a balanced

set of protections and exceptions to facilitate the country’s economic and cultural growth.”

343

This

balance underpins the development not only of an extremely rich and diverse cultural heritage,

but also the economic viability of the creative and technology sectors.

For the law’s protections to be meaningful, however, copyright owners must have a

mechanism for vindication of their rights when their works are infringed. In passing section 512

and the broader DMCA, Congress recognized that the internet posed a unique challenge to

341

U.S. CONST., art. 1, § 8, cl. 8.

342

1075 (1909); Copyright Act of 1831, 4 Stat. 436 (1831); Copyright Act of 1790, 1 Stat. 124 (1790).

343

Legislative Branch Appropriations for 2020 (Part 2): Hearing Before the Subcomm. on Legislative Branch of the H. Comm. on

Appropriations, 116th Cong. 262 (2019) (written statement of Karyn Temple, Acting Register of Copyrights) reproduced at

Statement of Karyn Temple, Acting Register of Copyrights, Before the Subcomm. on the Legislative Branch of the

Comm. on the Appropriations at 1 (Feb. 13, 2019), https://www.copyright.gov/about/budget/2020/house-budget-

testimony-fy20.pdf.

U.S. Copyright Office Section 512 Report

and effective removal of infringing content online.

344

As Congress acknowledged, such a

mechanism would have the dual benefit of not only ensuring the continued economic health of

the cultural industries, but also the growth and development of the then new intermediary sector,

enabling legitimate services to profit from developing new ways to meet customers’ demands for

access to legitimate content.

345

A system that fails to provide adequate protection of creators’ rights in the online

ecosystem thus not only fails in upholding the congressional intent behind section 512, but also

undermines the animating purpose behind the copyright laws. For this reason, the entirety of the

answer to the problem of piracy on the internet cannot be, as some have implied, simply

developing more legitimate services to distribute content.

346

While an increase in legitimate

services and distribution channels does have an important role to play, such distribution channels

will not long be able to operate in an environment where easy, widespread access to “free”

infringing content is the norm.

347

2. OSPs Operating in Good Faith Must be Afforded Legal Certainty and Leeway to

Innovate

In order to fully respect the original congressional intent behind section 512, we cannot

simply stop at ensuring effective copyright protections in the online environment. The other half

of the bargain that Congress struck in 1998 was the creation of legal certainty and leeway to

innovate for emerging OSPs in order to “foster the continued development of electronic

commerce and the growth of the Internet.”

348

A vibrant and innovative technology sector offers

benefits for many parts of society: for the technology companies and their shareholders, who

344

H.R. REP. NO. 105-551, pt. 2, at 25 (1998) (“[T]he Committee also recognizes that the digital environment poses a

unique threat to the rights of copyright owners, and as such, necessitates protection against devices that undermine

copyright interests. In contrast to the analog experience, digital technology enables pirates to reproduce and distribute

perfect copies of works—at virtually no cost at all to pirate. As technology advances, so must our laws.”).

345

H.R. REP. NO. 105-551, pt. 2, at 23 (1998) (“The debate on this legislation highlighted two important priorities:

promoting the continued growth and development of electronic commerce; and protecting intellectual property rights.

These goals are mutually supportive. A thriving electronic marketplace provides new and powerful ways for the

creators of intellectual property to make their works available to legitimate consumers in the digital environment. And

a plentiful supply of intellectual property—whether in the form of software, music, movies, literature, or other works—

drives the demand for a more flexible and efficient electronic marketplace.”).

346

See, e.g., Tr. at 49:15–18 (May 12, 2016) (Corynne McSherry, EFF); Tr. at 98:9–14 (May 3, 2016) (Michael Petricone,

CTA).

347

The Office is aware that a debate exists within the literature as to whether the availability of legitimate content

services is the chicken or the egg with respect to declining piracy rates. Compare Brett Danaher et al., The Effect of Piracy

Website Blocking on Consumer Behavior at 5 (Aug. 13, 2019) (unpublished article), https://papers.ssrn.com/sol3/

papers.cfm?abstract_id=2612063 (positing that website blocking enforcement activities drove an increased usage of

legal subscription sites) with João Pedro Quintais & Joost Poort, The Decline of Online Piracy: How Markets—Not

Enforcement—Drive Down Copyright Infringement, 34 AM. U. INT’L L. REV. 807, 811 (2019) (positing that the increasing

availability of legitimate distribution services is the primary driver of a decrease in piracy).

348

H.R. REP. NO. 105-551, pt. 2, at 21 (1998).

U.S. Copyright Office Section 512 Report

receive the economic benefit of their investment in innovation; for the general public, which now

has, in the words of one comic panel, access to the “entire contents of Library of Congress on your

cell phone”;

349

and for the creative industry and authors, who now have additional outlets to

provide access to, and earn money from, their creative works.

350

3. Congress Intended to Incentivize Cooperation Between OSPs and

Rightsholders, but Cooperation Cannot be the Only Answer

One of the key features of the notice-and-takedown system devised by Congress was an

attempt to provide “strong incentives for service providers and copyright owners to cooperate to

detect and deal with copyright infringements that take place in the digital networked

environment.”

351

Congress envisioned a system where content owners and ISPs would continue

to work together to develop new technologies and best practices for addressing infringement on

the internet, rather than creating a static system that locked in place the anti-piracy toolkit of the

1990s.

352

As a number of Study participants note, the ideal approach to addressing the limitations

of the current notice-and-takedown system would be the development of new approaches

pursuant to this same type of broad-based, multi-stakeholder consensus.

353

349

Dan Piraro, BIZARRO (Aug. 9, 2006).

350

Tr. at 152:12–15 (May 2, 2016) (Rebecca Prince, Becky Boop) (“Now, I create video content on YouTube, which is one

of the few platforms where you get AdSense revenue specifically for your content and mostly within the first few days

of publishing your content.”); Tr. at 290:17–21 (May 12, 2016) (Cathy Gellis, Digital Age Defense) (“We’re not in 1998

anymore. We are now deep into the 21st century where the internet and various platforms on the internet are major

venues where information and knowledge is exchanged and how people interrelate with each other.”). In fact, 2019

revenues from streaming music accounted for nearly eighty percent of the total U.S. music industry revenues, which

saw double-digit growth overall for the fourth straight year. See RIAA, YEAR-END 2019 RIAA MUSIC REVENUES REPORT

at 1 (Feb. 2020), https://www.riaa.com/wp-content/uploads/2020/02/RIAA-2019-Year-End-Music-Industry-Revenue-

Report.pdf.

351

H.R. REP. NO. 105-796, at 72 (1998) (Conf. Rep.).

352

See, e.g., 17 U.S.C. § 512(i)(2). Of course, as multiple study participants point out, Congress’ vision of broad, open,

cross-industry standards-setting for the creation of standard technical measures has not come to pass. See e.g., Authors

Guild Initial Comments at 27 (“[T]he statute foresaw an environment of cooperation and collaboration between

in many areas of section 512, its implementation has not played out as intended.”); c3 Initial Comments at 36 (“The fact

that hosting platforms are reaping huge profits from the sale of ads placed on infringing works while insulated from

liability for such activities by safe harbor protections has provided a strong financial disincentive for these service

providers to participate in the ’open, fair, voluntary, multi-industry standards process’ called for in section DMCA

512(i)(2)(A).”); Tr. at 12:7–11 (April 8, 2019) (Ken Hatfield, American Federation of Musicians Local 802) (“Over 20 years

after President Clinton . . . signed the DMCA, neither the active cooperation between the platforms and the creators nor

the standard technical measures envisioned by Congress have materialized.”); Tr. at 68:18–23 (May 3, 2016) (Lisa

Willmer, Getty Images) (“[A]s much as we’ve heard about the value of Content ID, there is not Content ID for images,

and that’s not because the technology doesn’t exist; because Google has chosen not to implement it. So it’s clear that

leaving it to voluntary action is not enough.”).

353

See Tr. at 226:19–227:5 (May 13, 2016) (Joseph Gratz, Durie Tangri LLP) (“And I think one of the things that may need

to happen is the first set of voluntary agreements may need to be about how you study the question . . . and what the

measure, how to measure it and how to interpret those results. I think those are things on which reasonable people can

U.S. Copyright Office Section 512 Report

As with copyright policymaking in general, internet policy created without the input and

buy-in of important stakeholders is unlikely to be successful and is more likely to suffer from

unforeseen and unintended consequences. Particularly in an area with so many different

stakeholders with widely divergent social, economic, and technological interests at stake, any

changes imposed without sufficient consultation risk upending markets that represent significant

portions of the U.S. economy. While difficult, such consensus-building is most likely to result in

sensible, workable public policy.

While consensus-based fixes would be the ideal approach to improving the U.S. notice-

and-takedown system, it has become clear that this is one instance where the perfect should not

become the enemy of the good. Throughout the Study, the Office heard from participants that

Congress’ intent to have multi-stakeholder consensus drive improvements to the system has not

been borne out in practice.

354

By way of example, more than twenty years after passage of the

DMCA, although some individual OSPs have deployed DMCA+ systems that are primarily open

to larger content owners, not a single technology has been designated a “standard technical

measure” under section 512(i).

355

While numerous potential reasons were cited for this failure—

from a lack of incentives for ISPs to participate in standards setting

356

to the inappropriateness of

one-size-fits-all technologies

357

—the end result is that few widely-available tools have been

created and consistently implemented across the internet ecosystem. Similarly, while various

differ. But I think they are things on which reasonable people are likely ultimately to reach consensus or at least to

reach multiple consensuses that can all be reported out.”); Tr. at 134:20–135:1 (May 13, 2016) (Fred von Lohmann,

Google) (“And so, we were able to make a lot of progress by working together on the ad network side on figuring out

what was working, what challenges we face and what was working.”). See also infra section VI.B.2.

354

See Tr. at 127:14–128:1 (May 3, 2016) (Kerry Sheehan, PK) (“I think historically, we haven’t seen significant public

interest participation in these agreements . . . . But I think it’s pretty clear on the language that Congress included in the

statute that the standard technical measures need to be developed pursuant to a broad consensus in an open, fair,

voluntary and multi-industry standards process.”); Tr. at 87:11–15 (May 3, 2016) (Victoria Sheckler, RIAA) (“The DMCA

standard technical measures doesn’t say it’s one-size-fits-all. It doesn’t say that there can’t be flexibility. It does say

people need to come together in a multi-stakeholder process to come up with those. And they’re not coming to the

table.”).

355

DMCA+ systems allow rightsholders to identify and potentially remove infringing content without going through

the notice-and-takedown process. Examples include YouTube’s Content ID and Facebook’s Rights Manager, both of

which are monetization systems.

356

See Tr. at 126:2–12 (May 3, 2016) (Thomas Kennedy, American Society of Media Photographers (“ASMP”) (“My

concern is basically that there are organizations that absolutely need to be talking with individual creator groups in

order to facilitate solutions and yet those conversations are not happening, primarily, because I don’t think . . . there are

either sufficient incentives or a willingness to really engage in the conversations. And until and unless that’s

acknowledged and addressed, I’m not sure that voluntary measures can really totally satisfy the needs of the different

creator communities.”); Tr. at 20:9–11 (May 13, 2016) (Keith Kupferschmid, Copyright Alliance) (“I think there’s no

incentive for the OSP community to sort of come to the table under that specific provision.”); Tr. at 116:6–8 (May 3,

2016) (Victoria Sheckler, RIAA) (describing what accounts for successful voluntary initiatives as “building trust[,]

having skin in the game, having a regular line of communication are the main points”).

357

See Tr. at 34:24–35:2 (May 3, 2016) (Michael Petricone, CTA) (“[I]t is not a one size fits all solution. It costs YouTube

tens of millions of dollars and takes hundred [sic] of lawyers, which is obviously out of reach for a small start-up.”).

U.S. Copyright Office Section 512 Report

voluntary initiatives have been undertaken by different market participants to address the

volume of true piracy within the system, these initiatives, although initially promising, likewise

have suffered from various shortcomings, from limited participation to ultimate ineffectiveness.

358

Thus, while the Office continues to encourage stakeholders to work together and come up

with solutions and voluntary initiatives to address current and future limitations of the notice-

and-takedown system, in this Report the Office has not limited itself to recommendations that are

the subject of existing industry consensus. It is clear that any changes to the system are likely to

encounter opposition from one or several groups of stakeholders. The Office has, however,

endeavored to limit any such recommendations to those we have concluded would have the

greatest impact on restoring the balance Congress sought to achieve with passage of section 512.

Importantly, it is worth noting that the Office has limited itself to consideration of

improvements of the existing notice-and-takedown system. Without clear political guidance from

Congress to the contrary, the Office does not view its role as reconfiguring the entire copyright

liability regime relating to infringing material online, but instead to make recommendations on

how to best improve the existing system put in place by Congress. The choice to redefine the

existing balance or establish a new balance lies within the purview of Congress.

359

4. To the Extent Possible, Government Decision-Making Should be

Based on Evidence

Internet policy tends to spark heated rhetoric.

360

While this is unsurprising for a topic that

touches so many and has such far-reaching economic implications, there is relatively little

available evidence upon which to craft governance decisions. For this reason, the Copyright

Office has, throughout the Study, sought to separate the qualitative and quantitative evidence

from the rhetoric on all sides of the issue. The Office recognizes that any changes to (or even a

decision not to make any changes to) the current section 512 system will have far-reaching

358

See infra section VI.B.2.

359

The Office is mindful that questions of the proper scope of intermediary liability online, and the broader role of the

larger platforms in society, are the subject of ongoing debate in Congress and elsewhere. Compare Press Release, Sen.

Ted Cruz, Sen. Cruz Calls on USTR to Eliminate Inclusion of Special Protections for Big Tech in U.S. Trade Deals (Nov.

1, 2019), https://www.cruz.senate.gov/?p=press_release&id=4743, with Emily Stewart, Ron Wyden Wrote the Law that

Built the Internet. He Still Stands By it—and Everything It’s Brought With It, VOX: RECODE (May 16, 2019),

https://www.vox.com/recode/2019/5/16/18626779/ron-wyden-section-230-facebook-regulations-neutrality.

360

For every assertion that the internet will be killed by net neutrality, one can find an assertion that the internet is

destroying the music industry, or journalism, or even democracy itself. See, e.g., JAMIE BARTLETT, THE PEOPLE VS. TECH:

HOW THE INTERNET IS KILLING DEMOCRACY (AND HOW WE SAVE IT) (2018); Gray Reed & McGraw, P.C., Will Net Neutrality

Kill the Internet 3.0?, J.D. SUPRA (Feb. 26, 2015), https://www.jdsupra.com/legalnews/will-net-neutrality-kill-the-internet-

3-55812/; Ian Morris, Technology is Destroying the Music Industry, Which is Great for the Next Taylor Swift, FORBES (Nov. 17,

2014), https://www.forbes.com/sites/ianmorris/2014/11/17/technology-is-destroying-the-music-industry-which-is-great-

for-the-next-taylor-swift/; J.M. Porup, The Printing Press Created Journalism. The Internet Will Destroy It, MEDIUM (Mar.

28, 2014), https://medium.com/@toholdaquill/the-printing-press-created-journalism-the-internet-will-destroy-it-

9cafc89b40e3.

U.S. Copyright Office Section 512 Report

implications, and there are serious policy and economic concerns underlying the positions of all

parties.

361

The facts—of how the internet has evolved, of how participants in the notice-and-

takedown system experience section 512 today, and of how courts have interpreted it—are what

the Office looked to gather in the Study in order to inform our recommendations. Towards this

end, the Office sought, as part of its Second Notice, “empirical research on any of the topics

discussed in this Notice, or other topics that are likely to provide useful data to assess and/or

improve the operation of section 512.”

362

In response, the Office received nine empirical studies.

Responses received by the Office covered:

• an updated report on the “Notice and Takedown in Everyday Practice” study;

363

• an analysis of Automattic Inc.’s transparency reports from 2015‒2016 documenting

notices of claimed infringement that it receives;

364

• a report that examines the functionality and limitations of filtering technologies;

365

• a notice-and-takedown evaluation survey conducted by the National Music

Publishers’ Association that consisted of 64 member music publisher participants;

366

361

See Adam Holland & Christopher T. Bavitz, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry at 3 (Apr. 1, 2016) (“Berkman Cyberlaw Clinic Initial Comments”) (“As Internet scholars John

Palfrey and Jonathan Zittrain noted in an article in Science magazine, decisions regarding Internet regulation have

particularly far-reaching implications given such decisions’ ‘profound societal impact’ and connections to ‘economics,

free expression and privacy.’”) (quoting John Palfrey & Jonathan Zittrain, Better Data for a Better Internet, SCIENCE, Dec.

2, 2011, at 1210–11, http://science.sciencemag.org/content/334/6060/1210.full).

362

Section 512 Study: Request for Additional Comments, 81 Fed. Reg. 78,636, 78,642 (Nov. 8, 2016).

363

Jennifer Urban et al., “Notice and Takedown in Everyday Practice, Updated March, 2017,” Empirical Study

Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry (Mar. 22, 2017) (“Urban et al.

Empirical Study”).

364

Automattic Inc., “Comments of Automattic Inc.,” Empirical Study Submitted in Response to U.S. Copyright Office’s

Nov. 8, 2016, Notice of Inquiry (Mar. 22, 2017).

365

Evan Engstrom & Nick Feamster, “The Limits of Filtering: A Look at the Functionality & Shortcomings of Content

Detection Tools,” Empirical Study Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry

(Mar. 22, 2017).

366

NMPA, “Empirical Research Submission of The National Music Publishers’ Association,” Empirical Study Submitted

in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry (Mar. 22, 2017).

U.S. Copyright Office Section 512 Report

• a notice-and-takedown survey focused on unlicensed uses of copyrighted sound

recordings conducted by American Association of Independent Music and Future of

Music Coalition that consisted of 73 independent record label participants;

367

• a notice-and-takedown survey conducted by the Copyright Alliance that consisted of

1,362 small creator participants;

368

• a notice-and-takedown survey conducted by the Digital Media Licensing Association

with over 1,200 creator responses;

369

• a study examining the chilling effect of DMCA notices that request takedown of legal

material conducted by Jon Penney and that consisted of 1,212 internet user

participants;

370

and

• a critique of the “Notice and Takedown in Everyday Practice” study.

371

While each of these responses provided some useful context for the Study, taken as a

whole and looked at in conjunction with other publicly available reports,

372

they illustrate a key

obstacle facing policy makers looking to create evidence-based policy with respect to the notice-

and-takedown regime. Namely, one of the key features of the system—the privatized, extra-

judicial nature of takedown notices and counter-notices under section 512—has resulted in much

of the information about how the system is being utilized in practice being inaccessible to

researchers and policy makers alike. Although some individual participants in the system have

sought to provide greater transparency by making certain datasets—such as the Lumen

database—publicly available, any insights that emerge from a review of such datasets are by

367

A2IM & FMC, “Joint Supplemental Comments of the American Association of Independent Music and Future of

Music Coalition in Response to Request for Empirical Research,” Empirical Study Submitted in Response to U.S.

368

Office’s Nov. 8, 2016, Notice of Inquiry (Mar. 22, 2017).

369

Digital Media Licensing Association (“DMLA”), “DMLA Empirical Research Study for Section 512 Study,” Empirical

Study Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry (Mar. 21, 2017) (“DMLA

Empirical Study”).

370

Jon Penney, “Comments of Jon Penney,” Empirical Study Submitted in Response to U.S. Copyright Office’s Nov. 8,

2016, Notice of Inquiry (Mar. 22, 2017).

371

George S. Ford, “Notice and Takedown in Everyday Practice: A Review,” Empirical Study Submitted in Response to

U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry (Mar. 22, 2017).

372

See Michael Masnick & Leigh Beadon, THE SKY IS RISING, 2019 EDITION: A DETAILED LOOK AT THE STATE OF THE

ENTERTAINMENT INDUSTRY (2019), https://skyisrising.com/TheSkyIsRising2019.pdf (finding that the internet has not

decreased content creation or the size of any aspect of the creative industry); ORG. FOR ECON. CO-OPERATION & DEV.,

Chapter 5: Copyright in the Digital Era: Country Studies, in ENQUIRIES INTO INTELLECTUAL PROPERTY’S ECONOMIC IMPACT

209 (2015), https://www.oecd.org/sti/ieconomy/KBC2-IP.Final.pdf.

U.S. Copyright Office Section 512 Report

definition representative of only a subset of the transactions involving some of the larger OSPs in

the ecosystem.

373

For this reason, it has been difficult to quantify the extent to which many of the concerns

expressed about the current U.S. notice-and-takedown system by various participants in the

Study represent significant limitations in need of remedy. While increased transparency by all

participants in the notice-and-takedown system could thus hold the promise of improving

internet policymaking, in the absence of readily verifiable evidence on how the system is

currently working, the Office’s recommendations are based upon the limited publicly-available

information it has been able to gather as part of the Study process. Where possible, we note those

conclusions (or lack of conclusions) that could benefit from further study and fact-gathering.

5. Internet Policy in the 21st Century Cannot be One-Size-Fits-All

While participants in the Study disagree about many topics related to the notice-and-

takedown system, one point of agreement has become apparent: to be effective, any changes to

the current system must take into account differences within and among stakeholder classes.

374

An expectation that all OSPs develop and deploy expensive, Content ID-like systems would

simply be overkill for what the Urban study terms “DMCA Classic” OSPs that receive a small

volume of takedown notices, while making it economically difficult for any new players to enter

the market.

375

Likewise, an approach to online infringement that requires all content owners to

have enforcement teams on retainer is guaranteed to leave many small, individual creators

373

For example, while Google sends copies of many of the DMCA notices it receives to the Lumen database, actions

taken by content owners against infringing content on YouTube utilizing the Content ID system do not appear to be

included in these reports. See Urban et al. Empirical Study at 49.

374

Tr. at 141:20–142:2 (April 8, 2019) (Caleb Donaldson, Google) (“Even putting aside [section] 512(a) providers, the

number of different kinds of [section] 512(c) platforms and the different resources available to them dictates that repeat

infringer policies will be, will have some variation.”); Tr. at 147:18–21 (April 8, 2019) (Keith Kupferschmid, Copyright

Alliance) (“One size fits all for the DMCA doesn’t work for the notice system either, for the little guy, the small

businesses, the individual creators. It just—it just doesn’t work.”); Tr. at 371:15–19 (April 8, 2019) (Lui Simpson, AAP);

Tr. at 156:4–6 (May 13, 2016) (Dave Green, Microsoft) (“So not only does one size not fit all for ISPs, one size does not fit

all for the various rightsholder constituencies.”); Tr. at 147:8–13 (May 13, 2016) (Dean Marks, MPAA).

375

See Tr. at 74:9–13 (May 12, 2016) (Alex Feerst, Medium) (discussing “DMCA Classic” OSPs); Tr. at 107:9–18 (May 2,

2016) (Brianna Schofield, University of California-Berkeley School of Law). The Office recognizes that the availability of

third-party services like Audible Magic, which offer digital fingerprinting solutions as a service for OSPs, could help

obviate the need for new entrants to develop their own in-house equivalent of Content ID. The Office notes, however,

that digital fingerprinting technology is not equally advanced across all media types, and further would question the

economic advisability of requiring even the smallest OSP to engage such services. See Kernochan Center for Law,

Media and the Arts Columbia Law School, Additional Comments Submitted in Response to U.S. Copyright Office’s

Nov. 8, 2016, Notice of Inquiry at 8 (Feb. 21, 2017) (“Kernochan Additional Comments”) (discussing the prospect of

“automated fair use”); Tr. at 35:17–37:4 (May 3, 2016) (Eugene Mopsik, American Photographic Artists (“APA”))

(discussing machine recognition of licensed images).

U.S. Copyright Office Section 512 Report

without an effective mechanism for vindicating their rights.

376

Similarly, any system premised on

the assumption of good faith cooperation cannot fully address bad faith actors like true pirate

sites or sites designed to perpetuate the whack-a-mole problem through the use of Pez linking.

377

Such activities need to be recognized—by parties and the courts—as simply outside the purview

of the notice-and-takedown system, necessitating different enforcement mechanisms.

B. The Notice-and-Takedown System as Experienced by Parties Today is Unbalanced

With the enactment of the DMCA, Congress sought to “balance[] the interests of content

owners, on-line and other service providers, and information users in a way that [would] foster

the continued development of electronic commerce and the growth of the Internet.”

378

To achieve

that balance, Congress believed it was essential to afford OSPs “greater certainty . . . concerning

their legal exposure”

379

and to provide copyright owners with “reasonable assurance that they

[would] be protected against massive piracy” online.

380

Section 512 was designed to advance both

of those goals by providing “strong incentives for service providers and copyright owners to

cooperate to detect and deal with copyright infringements that take place in the digital networked

environment.”

381

The structure of the notice-and-takedown system reflects this desire for cooperation.

Section 512 encourages copyright owners to notify OSPs of allegedly infringing material as

described in section 512(c)(3). By doing so, copyright owners can obtain the benefit of having the

material removed expeditiously without the time or cost of resorting to litigation.

382

As the

legislative history explains, “copyright owners are not obligated to give notification of claimed

infringement in order to enforce their rights,” but they have incentive to do so because “neither

actual knowledge nor awareness of a red flag may be imputed to a service provider based on

information from a copyright owner or its agent that does not comply with the notification

provisions of subsection [512](c)(3).”

383

Similarly, OSPs have the incentive to act expeditiously to

remove or disable access to the material upon receiving a notice from the copyright owner in

376

See, e.g., Tr. at 55:13–56:17 (May 12, 2016) (Brian McNelis, Lakeshore Records); Tr. at 26:22–27: 11 (May 2, 2016) (Alisa

Coleman, ABKCO Music & Records); Tr. at 128:2–5 (May 2, 2016) (Damon DiMarco, author).

377

See Capitol Records, LLC v. Escape Media Grp., Inc., No. 12-CV-6646, 2015 WL 1402049, at *8 (S.D.N.Y. Mar. 25, 2015)

(“Escape Media Grp.”) (“[T]he system acts as a technological Pez dispenser: Each time a Primary File for a song is

removed due to a DMCA takedown notice, a Non-Primary File is slotted in to take its place, with the process

continuing until there are no remaining Non-Primary Files for that particular song, and there is nothing to keep the

Non–Primary Files from replenishing.”); see also A2IM Music Community Initial Comments at 10–11.

378

H.R. REP. NO. 105-551, pt. 2, at 21 (1998).

379

H.R. REP. NO. 105-551, pt. 2, at 49–50 (1998).

380

S. REP. NO. 105-190, at 8 (1998).

381

H.R. REP. NO. 105-551, pt. 2, at 49 (1998).

382

See supra section II.C.4.

383

S. REP. NO. 105-190, at 45 (1998).

U.S. Copyright Office Section 512 Report

order to qualify for section 512’s limitation on liability.

384

While an OSP “is free to refuse to ‘take

down’ the material or site, even after receiving a notification of claimed infringement from the

infringement.

385

Thus, Congress envisioned the notice-and-takedown system as “a formalization

and refinement of a cooperative process that ha[d] been employed to deal efficiently with

network-based copyright infringement.”

386

Despite Congress’ intentions, the record in the Study reveals a stark division of opinion

between rightsholders and OSPs over how effectively section 512 balances their respective

interests in practice. Representatives of these groups reported strikingly different experiences

with the notice-and-takedown process and offered widely divergent perspectives on its benefits

and burdens.

1. Many OSPs Report that Section 512 is a Success Story

OSPs and other stakeholders in the technology industries generally express the view that

section 512 has succeeded in achieving Congress’ goals as described above. They argue that the

cooperation and balance of interests fostered by the statute have facilitated the development of an

innovative, diverse technological sector and the widespread dissemination of creative works

through legitimate channels witnessed over the past two decades.

387

Several commenters

highlight the rapid advancement of online services and digital products that have transformed

the economy and the technological landscape

388

—developments that they attribute in large part to

384

See supra section II.C.4.

385

S. REP. NO. 105-190, at 45 (1998).

386

S. REP. NO. 105-190, at 45 (1998); see also Veoh IV, 718 F.3d at 1021 (stating that “Congress enacted [the DMCA] to

foster cooperation among copyright holders and service providers in dealing with infringement on the Internet”); UMG

Recordings, Inc. v. Veoh Networks, Inc., 620 F. Supp. 2d 1081, 1089 (C.D. Cal. 2008) (“Veoh I”) (“Section 512(c) codifies the

‘notice and takedown’ procedure Congress instituted so that the service providers and copyright holders could

cooperate to protect copyrights.”). Cf. Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 636 (S.D.N.Y. 2011)

(“The DMCA seeks to balance the interests of copyright owners and online service providers by promoting

cooperation, minimizing copyright infringement, and providing a higher degree of certainty to service providers on the

question of copyright infringement.”).

387

See Amazon Initial Comments at 3 (Apr. 1, 2016) (“This careful balancing among stakeholders’ interests has proven

to be a durable, and workable framework that has facilitated the unprecedented dissemination and availability of

creative works, increased innovation and content creation, and dramatic economic growth.”); Re:Create, Comments

Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Apr. 1, 2016) (“Re:Create Initial

Comments”) (“Section 512 of the DMCA has provided the foundation for the success of the Internet and is a

cornerstone of the overall U.S. economy. Today the Internet enables over $8 trillion in e-commerce each year and in

2014, was responsible for 6% of real GDP in the US . . . . Its growth has benefited both creators and consumers, who

have made it their preferred platform for the distribution and consumption of media . . . . More people are creating

more things on more mediums than ever before.”).

388

See, e.g., Copia Institute Initial Comments at 3–4 (“In these nearly twenty years we have seen countless businesses

and jobs be added to the economy, innumerable examples of pioneering technology be innovated, myriad new markets

previously unimaginable be created (including many for those in the arts and sciences to economically exploit), and

enormous value returned to the economy.”); CTIA Initial Comments at 5 (“While the growth of internet generally has

U.S. Copyright Office Section 512 Report

the ability of companies to build internet-based businesses without facing uncertain exposure to

secondary liability.

389

In the words of one advocacy organization, “[o]nline platforms ranging

from YouTube, to Facebook, to Tumblr, to Twitter, to Wikipedia, to innumerable subject matter

specific discussion forums, have arisen thanks to the legal certainties provided by Section 512.”

390

These stakeholders emphasize that this type of innovation is exactly what Congress sought to

achieve in adopting the safe harbor framework.

391

Many of these commenters further argue that the growth of the technological sector

supported by section 512 has benefited both consumers and creators. They observe that

consumers can now choose among numerous authorized platforms to stream music and video,

been staggering, the explosion of wireless internet services, such as those provided by CTIA’s members, has been

particularly noteworthy. Growing from the initial digital networks deployed in the early 1990s (with 500,000 digital

subscribers in 1995), the U.S. wireless industry now serves more than 355 million active digital devices.”); IFTA Initial

Comments at 3 (“Technology and Internet bandwidth have increased exponentially since [1998] with the rise of

decentralized file sharing systems becoming a common online activity, along with the ability for Internet users to

immediately stream programming.”).

389

See Application Developers Alliance, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 4 (Mar. 30, 2016) (“Application Developers Alliance Initial Comments”) (“The creative and Internet

industries are thriving, notwithstanding extraordinary challenges and fears associated with piracy risk, content filtering

and policing, and building administrative, legal, and technological infrastructure to manage notice-and-takedown

processes. Netflix, Pandora, Etsy, and Amazon are only a few examples of creative and technology visionaries

collaborating to create new business models, new opportunity, and new revenue that supports more creativity, more

creators, and more consumers.”); CTA, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 2 (Apr. 1, 2016) (“CTA Initial Comments”) (“In evaluating the impact of Section 512, it should be

remembered that Section 512 has sheltered the birth or remaking of now-mainstream businesses such as Amazon, eBay,

Kodak, and YouTube.”); Facebook Initial Comments at 3 (“While many factors surely have played a part in Facebook’s

growth over the years, the predictability afforded by section 512’s limitations on liability have provided important

assurance that Facebook could expand its business around user-generated content so long as it complied with section

512. The same appears to have held true for the many other U.S. online service providers that have thrived since the

enactment of section 512.”); Verizon Communications, Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry at 6 (Apr. 1, 2016) (“Verizon Initial Comments”) (“The overwhelming success of the

DMCA and its safe harbor provisions in promoting the growth of the Internet cannot be seriously disputed . . . . Now,

the Internet is widespread, by any conceivable measure. This is due in large part to a virtuous cycle of investment—as

more American individuals and businesses became connected to and reliant upon the Internet, companies like Verizon

invest in larger, faster, and more capable Internet infrastructure and services, both wired and wireless.”).

390

PK Initial Comments at 2.

391

See Amazon Initial Comments at 3 (“In 1998, Congress understood that the Copyright Act needed to be updated to

apply that balanced framework to online activity, without impairing the extraordinary innovation and economic

development of commercial Internet services. This resulted in the adoption of the Digital Millennium Copyright Act.”);

Application Developers Alliance Initial Comments at 1–2 (“The entire app industry benefits greatly by today’s

interconnected and interdependent [section] 512 system because the shared burdens of the [section] 512 system

manifest a nearly perfect balance between content-owner protection, technological innovation, and business model

transformation that Congress envisioned when it created the system nearly 20 years ago.”); CTIA Initial Comments at 1

(“The section 512 safe harbors have been successful in achieving the purpose that Congress intended of ensuring that

U.S. Copyright Office Section 512 Report

facilitating access to a vast number of legitimate content offerings.

392

They note that these

platforms have allowed creators to distribute their works to new audiences and markets around

the world more easily, offering additional revenue streams to copyright owners.

393

Moreover,

these commenters argue, such benefits are not limited to large content producers: platforms such

as YouTube, Flickr, Instagram, and SoundCloud have allowed creators of all sizes and means to

interact with consumers directly and build a following that can enable them to make a living from

their creative endeavors.

394

As the Internet Association observes, “[t]he Internet offers lower

barriers to entry for smaller and independent artists to access larger, more diverse sets of

consumers. This in turn has fueled a virtuous cycle of expressive and creative works, and it has

democratized access and reach at scale.”

395

Other stakeholders argue that, in addition to

facilitating lawful dissemination, the technological innovation spurred by section 512 has aided

the creation of works by providing authors with a variety of new tools to produce creative

content.

396

392

See Digital Media Association (“DiMA”), Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 3 (Apr. 1, 2016) (“DiMA Initial Comments”) (“[C]onsumers now have the ability to purchase music

from their favorite online music store, tune in to Internet radio or subscribe to an on-demand music streaming service

to satisfy their individual listening habits.”); United States Telecom Association (“USTelecom”), Comments Submitted

in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 3 (Apr. 1, 2016) (“USTelecom Initial

Comments”) (“Consumers today have an increasing number of options from which they can legally access the audio

and video content of their choosing.”).

393

See CCIA Initial Comments at 5–6 (Mar. 31, 2016) (“Section 512 has dramatically increased the ease by which content

creators can reach new audiences and markets. The economy-transforming platforms made possible by Section 512

have created extensive new markets for creators that would not have existed otherwise. From software app stores to

short- and long-form video platforms, to self-publishing ebook marketplaces, numerous platforms utilizing Section 512

have disintermediated gatekeepers and dramatically lowered barriers to entry in the content creation sector.”).

394

See EFF Initial Comments at 4 (“Thanks to the safe harbors, new services and businesses have emerged, from

YouTube to eBay, Etsy and so on, which in turn have become platforms for individuals and small businesses to reach

customers. Artists—from musicians to filmmakers to comedians—can reach fans directly, and many have become

wealthy in the process.”); Pinterest Initial Comments at 1 (“The DMCA safe harbor has played a vital role in enabling

Pinterest to grow from a nascent technology into a platform that over 100 million people use to discover new ideas and

inspiration. Pinterest also creates value for businesses and publishers, connecting them with a set of engaged and

passionate users looking to make their ideas a reality, which in turn leads to more traffic to their websites, distribution

of their content, ad revenue, and retail sales. Without Section 512, this ecosystem might never have existed.”).

395

Internet Association Initial Comments at 10. See also Mozilla, Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015, Notice of Inquiry at 2–3 (Apr. 1, 2016) (“Mozilla Initial Comments”) (“Section 512’s liability

limitations . . . . have permitted the growth of online services which, in turn, have become conduits for the marketing

and licensing of copyrighted works to far more people than might have had access to them if such services had not

existed. They have brought into existence a market for smaller and amateur content creators who are able to easily

generate revenue from their content for the first time.”).

396

See Amazon Initial Comments at 4–5 (“The U.S. copyright regime has in large part enabled the innovative

development of distribution models beyond distributing fixed format media . . . . Digitization has also promoted

growth in content creation . . . . A significant part of this growth was driven by the proliferation of lawful online

services.”); Internet Association Initial Comments at 10 (“Section 512 benefits creators and right holders by . . .

providing unprecedented ways for content creation and consumption, which is particularly beneficial for small and

independent creators.”).

U.S. Copyright Office Section 512 Report

With respect to the system’s allocation of burdens, OSPs generally describe the balance as

equitable, though several do discuss the costs they face in responding to large volumes of

takedown notices submitted by rightsholders.

397

Other stakeholders point to the problem of

abusive or otherwise invalid notices targeting non-infringing content.

398

One commenter states

that abusive takedown notices generate “real cost[s] [for the OSP] . . . and divert[] resources from

more productive uses.”

399

These concerns will be discussed in detail in later sections of this

Report.

Overall, however, this group of stakeholders characterize the current framework as

providing the “optimal balancing of responsibilities for addressing online infringement.”

400

Amazon argues that “[b]y establishing a system of shared responsibility for preventing or

addressing infringing activity, [section 512] strikes the right balance for rightsholders and service

providers alike.”

401

Similarly, Microsoft remarks that “[w]hile the online ecosystem has

undergone significant changes since enactment of the DMCA, Section 512 has demonstrated its

flexibility and capability at addressing the scale of these concerns” by balancing “the roles,

responsibilities, liabilities and immunities of all impacted stakeholders.”

402

397

See BSA Initial Comments at 2 (“BSA members invest significant resources into developing state of the art systems

for processing high volumes of takedown notices.”).

398

See Re:Create Initial Comments at 3 (“Unfortunately, there is growing abuse and mistakes by copyright holders, who

are sending notices of infringement in many cases where the use is not a copyright infringement or is a clear fair use. In

many cases, the notices are being sent for reasons other than copyright infringement. This includes anti-competitive

purposes, to harass a platform or consumer, or to try and chill speech that the rightsholder does not like.”); USTelecom

Initial Comments at 4 (“[T]he sending of millions of invalid notices, purportedly under Section 512(c) but relating to

ISPs provision of conduit services under [section] 512(a), is disruptive to the proper functioning of the Internet

ecosphere.”); Tr. at 158:12–19 (May 12, 2016) (Joseph Gratz, Durie Tangri LLP) (noting that “about 10 percent of the

valid takedown notices” sent to Automattic are directed at “clear fair uses, clearly uncopyrightable content or

containing clear material misreprsentations”); Tr. at 65:17–21 (May 2, 2016) (Patrick Flaherty, Verizon) (“Our biggest

concern relates to just the over-volume of conduit invalid notices that we receive related to peer-to-peer file sharing and

the many millions and millions and millions we receive from companies like Rights[c]orp.”).

399

Automattic Inc., Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2

(Mar. 31, 2016) (“Automattic Initial Comments”) (“For example, we spend significant effort reviewing and trying to

weed out overbroad and abusive DMCA takedown notices, so that our users’ speech isn’t needlessly censored. This is

a real cost to us, and diverts resources from more productive uses, like improving the products and services we offer

our customers.”).

400

Facebook Initial Comments at 12.

401

Amazon Initial Comments at 4.

402

Microsoft Initial Comments at 12–13.

U.S. Copyright Office Section 512 Report

2. Creators and Rightsowners Report that Section 512 Currently Fails to Protect

them from Online Infringement

While OSPs generally declare section 512 a success story, rightsholders report that it has

largely failed to protect them from online infringement as promised by Congress.

403

In their view,

when Congress created the safe harbor framework, it “did not anticipate certain aspects of the

current Internet ecosystem that have evolved to facilitate the proliferation of large-scale

infringement.”

404

They note that, while technological advancements have created easier, faster,

and more diverse ways to share authorized content, the same technologies have enabled piracy to

grow to a level far beyond what could have been contemplated in 1998.

405

online piracy remains pervasive despite section 512. The MPAA cites a 2013 study that found that

“432 million unique users worldwide explicitly sought infringing content during one month

alone.”

406

MPAA also cites 2015 data showing that cyberlockers and websites, well known to be

sources of infringing content, receive millions of unique visitors per month.

407

In the publishing

403

See, e.g., Copyright Alliance Initial Comments at 2 (“Eighteen years have now passed since the DMCA was enacted,

and the interconnectivity provided by the Internet has fundamentally changed commerce, communication, and the way

the public experiences copyrighted works. Consumers can access and enjoy all sorts of copyrighted works where and

when they want, and creators benefit from new platforms that reach new audiences. But at the same time, online

infringement is now rampant, causing widespread harm to the economic and creative vibrancy of the copyright

community.”); Council of Music Creators, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 1 (“Council of Music Creators Initial Comments”) ([T]he intent of Congress in enacting the DMCA

was to strike a balance between protecting composers, songwriters, producers, and performers on the one hand, and

shielding business interests from unreasonable liability for copyright infringement on the other. Unfortunately, that is

not how it has worked out in practice.”).

404

AAP Initial Comments at 26; Songwriters of North America (“SONA”), Comments Submitted in Response to U.S.

Provisions were enacted because Congress was concerned about the liability imposed on ISPs from the infringing

activities of third parties on their services. Congress never anticipated the creation of online services which were

created solely or primarily for the distribution of infringing content.”).

405

See c3 Initial Comments at 7–8 (“These circumstances led Congress to underestimate how rapidly the internet would

spread; how dramatically access speeds would increase and the costs of electronic storage would decrease; how

difficult it would be for copyright owners to monitor for infringement; how easy it would become to earn revenue from

advertising (which is often served to websites by third-party providers), as opposed to subscription or use-based fees;

how often technologies would be designed to exploit legal loopholes; and how much money could be earned from

inducing or turning a blind eye to infringement.”); DGA Initial Comments at 5 (“The authors of the DMCA could not

have foreseen the magnitude of today’s search engines and the sophisticated means that copyright infringers have at

their disposal to distribute and profit from copyrighted materials.”).

406

MPAA Initial Comments at 11 (citing DAVID PRICE, NETNAMES, SIZING THE PIRACY UNIVERSE 3 (2013), reposted at

ILLUSION OF MORE, https://illusionofmore.com/wp-content/uploads/2013/09/NetNames-Sizing_Piracy_Universe-Report-

2.5.pdf); see also IFTA Initial Comments at 3 (reporting that in 2009 there were 5.4 billion instances of pirated content

online with that number increasing to more than 14 billion in 2010).

407

MPAA Initial Comments at 11 (citing MPAA, Comments to USTR in Response to Request for Public Comment on the

2015 Special 301 Out of Cycle Review of Notorious Markets, Docket No. USTR-2015-0016 (Oct. 5, 2015),

U.S. Copyright Office Section 512 Report

context, the Authors Guild reports that “[f]rom 2009 to 2013, the number of Internet piracy alerts

we received increased over 300%. In the next year alone, from 2013 to 2014, that number

doubled.”

408

Similarly, a group of twenty organizations representing rightsholder interests in the

music industry state that “since 2012, RIAA alone has noticed over 175 million infringements of

music.”

409

Other copyright owners point to the substantial numbers of takedown requests received

by Google as evidence that section 512 has done little to stem the volume of online infringement.

For example, at least two commenters cite data from Google’s Transparency Report

410

indicating

that the company received more than 80 million notices in February 2016 alone.

411

Rightsholders

state that the exponential growth in the volume of notifications is not “an indication that the

system is working as intended”; rather, “if infringing content continues to be rampant despite the

volume of notifications being sent, this can only indicate that the system is not working.”

412

The

Association of American Publishers (“AAP”) maintains that “an increase in the volume does not

speak to the effectiveness of the notice-and-takedown process,” given evidence that “the very same

infringing content is easily and quickly re-uploaded to the same site after removals pursuant to

previous notifications.”

413

Rightsholders report that this rise in piracy has led to significant declines in revenue.

414

Several note that they must devote extensive financial resources to combatting online

https://www.regulations.gov/contentStreamer?documentId=USTR-2015-0016-0007&attachmentNumber=1

&contentType=pdf).

408

Authors Guild Initial Comments at 2.

409

A2IM Music Community Initial Comments at 14.

410

Content Delistings Due to Copyright, GOOGLE: TRANSPARENCY REPORT, http://www.google.com/transparencyreport/

removals/copyright/.

411

See FMC Initial Comments at 3; Getty Initial Comments at 3; see also DotMusic, Comments Submitted in Response to

U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Apr. 1, 2016) (“DotMusic Initial Comments”) (“During the

week of February 29, 2016 there were 21,064,571 URL takedown requests for copyright infringement removal (i.e.

125,384 takedowns per hour).”).

412

AAP Initial Comments at 6.

413

AAP Initial Comments at 6–7; see also FarePlay, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry at 1 (Apr. 1, 2016) (“FarePlay Initial Comments”) (“One need look no further than the hundreds

of millions of legitimate takedown notifications filed each year that are rendered useless by a loophole in Section 512,

that allows offenders to simply repost the same work, indefinitely.”).

414

See c3 Initial Comments at 16 (“Despite music being more popular than ever today, music industry revenues have

been nearly flat since 2010, and are less than half what they were in 2000 (adjusted for inflation).”); MPAA Initial

Comments at 12 (“The widespread availability of infringing content online for free undercuts the distribution of such

content through legitimate channels, making it difficult for content owners to recover the substantial cost of creating

creative content or generating money to invest in the creation of new content or content delivery systems.”); Music

Managers, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Apr. 1,

2016) (“Music Managers Initial Comments”) (“Already, thousands of artists, songwriters, musicians, and others in the

music industry are no longer able to make an adequate living while remaining fully committed to their creative work.

U.S. Copyright Office Section 512 Report

infringement.

415

For example, Universal Music Group (“UMG”) states that it has had to “shift

significant resources that could otherwise be used to invest in the creation of new content

(including the discovery and development of artists) toward the protection of existing content.”

416

Commenters argue that these losses tend to fall most heavily on producers of smaller-budget

works. One independent filmmaker at the roundtable expressed frustration in seeing her film

uploaded on torrent sites before it was even released.

417

And, according to the Copyright

Alliance, this same filmmaker “made only about $100 off of her latest feature film, because free

illegal copies of the work are so widely available on the Internet.”

418

Other commenters note

additional economic consequences of piracy, including job losses, diminished investment in

legitimate distribution models, and higher prices for consumers.

419

Most copyright owners contend that section 512 does not provide an effective means of

stemming this infringing activity, citing several reasons. First, commenters note the substantial

burdens and inefficiencies resulting from the need to generate and send massive numbers of

takedown notices to OSPs. MPAA, for example, notes that “[i]n calendar year 2015, [its] members

sent notices with respect to more than 104.2 million infringing URLs.”

420

The Copyright Alliance

describes the number of takedown notices as “staggering, and . . . steadily increasing,” as

stakeholders are “grappling with tens of millions of notices a year.”

421

Sony Music reports that its

Many have quit making music altogether.”); Recording Artists & Songwriters, Comments Submitted in Response to

U.S. Copyright Office’s Dec. 31, 2015 Notice of Inquiry at 2 (Apr. 1, 2016) (“Recording Artists & Songwriters Initial

Comments”) (“Music consumption has skyrocketed, but the monies generated by individual writers and artists for that

consumption has plummeted.”).

415

See Authors Guild Initial Comments at 6 (“Piracy makes authors spend more time policing, and thus less time

writing or exploiting their works. And the prevalence of free and low-cost online books forecloses authors from

legitimate licensing markets.”); MPAA Initial Comments at 2 (“Copyright owners spend millions of dollars annually

combatting online piracy. This siphons resources away from investments in new content and new forms of distribution

and delivery.”); Tr. at 15:7–10 (May 2, 2016) (Lisa Hammer, independent film director).

416

UMG Initial Comments at 13.

417

Tr. at 15:14–16:16 (May 2, 2016) (Lisa Hammer, independent film director).

418

419

See DGA Initial Comments at 4 (“Given this importance of downstream revenue to financial success, if there is a

decrease in this revenue (a decrease significantly spurred on by online theft), financiers will be more reluctant to invest

in new work, and the result will be less work and fewer jobs. This is not a prediction for the future; this is the reality of

today.”); ITIF Initial Comments at 3 (“Widespread piracy has a negative economic impact, seriously harming the artists

who create content and the technicians who produce it. Piracy limits the ability of content producers to create

legitimate business models for selling digital content. It hurts U.S. competitiveness as the U.S. economy has a

competitive advantage in content industries. And it hurts law-abiding consumers who must pay higher prices for

content (or have access to less content or lower-quality content in the marketplace) to compensate for the costs of

piracy.”).

420

MPAA Initial Comments at 2; see also Tr. at 39:12 (May 2, 2016) (David Kaplan, Warner Brothers Entertainment Inc.)

(“Last year, we sent about 25 million [notices].”).

421

U.S. Copyright Office Section 512 Report

recordings were the subject of over 5.7 million takedown notices in 2015.

422

Similarly, the

Songwriters of North America (“SONA”) cites a 2013 report indicating that copyright holders

were sending takedown notices every month “for over 6.5 million infringing files, which were

available on more than 30,000 websites.”

423

These stakeholders note that sending such a large number of notices imposes significant

time and financial costs on the authors and artists, which smaller entities often cannot afford.

424

Even Warner Music Group (“WMG”), a large entity, estimates that “it would take at least 20-30

people, at a fully-loaded cost in excess of $2 million per year, and probably the use of an outside

content monitoring contractor at additional expense, to meaningfully affect (but not entirely

block) just WMG’s top 25 album releases on YouTube.”

425

With the significant volume of

notices,

426

many content owners note the need to rely on automation of the notice-and-takedown

process to accommodate this volume.

427

However, one commenter points out that this approach

is not appropriate or available for every rightsholder.

428

422

Sony Initial Comments at 1–2 (noting that the notices were sent “pursuant to 17 U.S.C. § 512 . . . or pursuant to

substantially similar instructions required by various digital services”).

423

SONA Initial Comments at 3.

424

See, e.g., Artists Rights Society (“ARS”), Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 3 (Mar. 31, 2016) (“ARS Initial Comments”) (pointing out that notices are “time-consuming and

costly hurdles,” and stating that “ARS . . . has spent time resubmitting notices and explaining to websites why they are

obliged to take down the infringing uses at issues to qualify for a safe harbor”); AAP Initial Comments at 7 (“The

notification process requires significant investments by the rights holder. For large publishing houses, an online

monitoring service is usually employed to carry out the function of scouring the Internet for materials that infringe its

copyrights. Unfortunately, most publishers in the U.S. are small businesses or non-profits for whom the costs of such

programs are beyond their financial reach.”); c3 Initial Comments at 4; FMC Initial Comments at 3 (“[S]maller

rightsholders . . . lack the financial and human resources to respond to infringement at this scale and volume.”); Tr. at

17:10–22 (May 2, 2016) (Natalie Madaj, NMPA).

425

WMG Initial Comments at 8.

426

It is unclear whether the counter-notification process and put-back procedures add to the volume, time, or effort

exercised by stakeholders to address online infringement. Compare MPAA Initial Comments at 29 (“The number of

counter-notifications sent is extremely small in absolute terms and particularly when compared with the number of

takedown notices sent.”), with Sony Additional Comments at 22 (“Given service providers’ poor and unbalanced

messaging about counter-notices, and an abundance of online resources to help users get their infringing uploads

reinstated, [Sony’s] investigators see a very large number of improper put-backs.”), and WMG Initial Comments at 5

(“First WMG’s efforts [to remove all WMG recordings from YouTube] were thwarted by user requests to put back

blocked videos.”).

427

See Getty Initial Comments at 4–5; MPAA Initial Comments at 16–17. But many stakeholders claim a significant

error rate in the automated notices. See Library Copyright Alliance (“LCA”), Comments Submitted in Response to U.S.

Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015 Notice of Inquiry at 2 (Feb. 16, 2016).

428

See AAP Initial Comments at 7 (“[T]he average smaller publishing house [with limited resources] . . . [is] without the

automation afforded through online monitoring services” and thus “infringing activity often goes unaddressed.”).

U.S. Copyright Office Section 512 Report

These inefficiencies are compounded, rightsholders argue, by what is often referred to as

the “whack-a-mole” problem. As discussed herein, courts have interpreted section 512 to require

specific and individualized information from notice senders.

429

Recent court decisions, moreover,

have interpreted the OSP’s lack of duty to monitor under section 512(m) in a manner that

effectively limits the usefulness or applicability of the representative list provision.

430

As a result,

the copyright holder may succeed in having the infringing content removed from a website, only

to have it reposted almost immediately on the same site by a different or even the same user,

requiring the rightsholder to start the process over again.

431

Commenters argue that this scenario

eviscerates the notice-and-takedown process’s effectiveness,

432

contending that the millions of

takedown notices sent by copyright owners have seemingly “had little impact toward reducing

the volume of infringing material available.”

433

Second, copyright owners argue that section 512 incentivizes the growth of business

models that profit from the dissemination of infringing content. Specifically, they contend that

section 512 facilitates piracy sites hosting unauthorized user-uploaded content, as the safe harbor

means that the OSPs have little incentive to negotiate licenses with rightsholders.

434

AAP argues

that the business models of certain sites, developed in response to section 512, “invite users to

continually upload infringing works that attract traffic to the site and provide opportunities for

429

See, e.g., Perfect 10, Inc. v. Giganews, Inc., 993 F. Supp. 2d 1192, 1198–1202 (C.D. Cal. 2014), aff'd, 847 F.3d 657 (9th Cir.

2017); Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 643 (S.D.N.Y. 2011), rev’d in part on other grounds Capitol

Records, Inc. v. MP3tunes, LLC, No. 07 Civ. 9931, 2013 WL 1987225, at *10 (S.D.N.Y. May 14, 2013); Arista Records LLC v.

Myxer Inc., No. CV 08-03935, 2011 WL 11660773, at *23 (C.D. Cal. Apr. 1, 2011) (“Nonetheless, the burden is born by the

provider to identify the infringed work.”).

430

See infra section VI.A.2.b.

431

House Section 512 Hearing, 113th Cong. 3 (statement of Rep. Jerrold Nadler, Ranking Member).

432

See A2IM Music Community Initial Comments at 4–5 (“[T]he DMCA makes it my responsibility to police the entire

Internet on a daily basis. As fast as I take my music down, it reappears again on the same site—an endless whack-a-

mole game.”) (quoting Maria Schneider); Authors Guild Initial Comments at 2 (“Unless an author’s pirated book is

published by one of the few publishers that have the means to actively address piracy, the only recourse an author has

is to send fruitless DMCA notices in a never-ending game of Whac-a-Mole. This is hardly a good use of an author’s or

anyone’s resources.”).

433

AAP Initial Comments at 6; Tr. at 54:11–15 (May 2, 2016) (Victoria Sheckler, RIAA) (“We have sent over 175 million

notices in the past three years to a variety of entities that claim DMCA status, or DMCA safe harbor status. And yet, we

continue to see our members’ works show up again and again and again on these sites.”).

434

See Authors Guild Initial Comments at 2 (“Not only have the section 512 safe harbors been ineffective at curtailing

Internet piracy; they have also incentivized the growth of numerous businesses designed to distribute a continuous

flow of infringing books, music, and films. The safe harbors are allowing service providers who traffic in pirated

content to evade financial liability while simultaneously profiting from widespread copyright infringement of creative

works of authorship.”); c3 Initial Comments at 11 (“In the transformed Internet environment of today, as online speeds

have dramatically increased while the cost of storage space has dramatically decreased, the DMCA’s failure to scale has

rendered it increasingly obsolete and futile from an enforcement standpoint. Large, sophisticated entertainment-

oriented websites have developed, and they premise their business models on being shielded from responsibility by the

safe harbors.”).

U.S. Copyright Office Section 512 Report

the operators to earn revenue through the sale of advertising or subscriptions relating to the

presence of such content.”

435

Sony Music Entertainment argues that “Section 512 effectively

grants . . . a constructive royalty-free license, under which companies can confidently profit from

the massive copyright infringement occurring on their platforms without any fear of liability. The

process of relying on users to acquire popular copyrighted content without authorization is so

reliable that seeking a license from Sony for the exploitation of Sony Recordings is

unnecessary.”

436

Third, rightsholders contend that hosting services utilizing licensed content also derive an

unfair competitive advantage from section 512, fostering a “value gap” where online content

sharing platforms obtain value from enabling their users to share copyright content, without

guaranteeing that the rightsholders receive their share of the value from their content. They

argue that such services have undue bargaining power in negotiating licensing fees with

whether the rightsholders agree to license it. As WMG explained:

Section 512 has an economic dampening effect on many (if not all) of WMG’s digital

license negotiations. In some cases, that is because WMG’s counterparties that do not rely

on Section 512 are constrained in the price they can pay because of the need to compete

with services that rely on Section 512 . . . . In other cases, WMG finds itself in an unfair

negotiating situation, because services that rely on Section 512 clearly expect that royalty

rates must be discounted because of the possibility of that service’s relying on Section 512

for its content acquisition as an alternative to a license. In both of these ways, Section 512

distorts the marketplace for digital music streaming services, and creates a “value gap”

between the income generated by the services from the use of music and the revenues that

are being returned to record companies, music publishers, recording artists and

songwriters.

437

435

AAP Initial Comments at 3; see also ARS Initial Comments at 2 (“Regretfully, ARS’ ability to protect both the

exclusive rights of its members and to provide users with the assurance that their uses of works will be lawful has been

severely challenged by the immunity provisions of section 512 which allow willful copyright infringers to exploit works

of art repeatedly, for commercial purposes, while hiding behind internet service providers.”); T Bone Burnett et al.,

Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Apr. 1, 2016) (“T

Bone Burnett Initial Comments”) (“The DMCA leaves creators at the mercy of rogue websites that operate at the

farthest reaches of US law—and beyond—and offers no meaningful way to hold repeat offenders to account. And

forces us to stand by helpless as billions of dollars in advertising is sold around illegal copies of our work.”); Getty

Initial Comments at 2 (“There is no incentive for cooperation. The safe harbors are instead used by service providers as

a shield and an excuse for doing nothing to detect or prevent copyright infringement.”).

436

Sony Initial Comments at 4.

437

WMG Initial Comments at 9–10; see also A2IM Music Community Initial Comments at 9 (“Here, unfair competition

comes in two forms: completely unlicensed services; and services that negotiate ‘in the shadow of the law’ to obtain

below market rates.”); FMC Initial Comments at 13 (“[T]o the extent that safe harbors currently result in the

widespread availability of unlicensed copies of creative works, this dynamic can create new imperatives to license

entire catalogs under one-size-fits-all terms.”); Schneider Initial Comments at 2 (“[C]ompanies like YouTube have taken

U.S. Copyright Office Section 512 Report

3. This Disconnect is Evidence that the Current System is not Working

Consistently for all Stakeholders

The sharp divergence in the assessments of section 512 by OSPs and copyright owners

indicates that the statute in practice is not achieving the balance Congress originally intended.

While this divided opinion by itself is not conclusive, the fact that one of the two principal groups

whose interests Congress sought to balance is virtually uniform in its dissatisfaction with the

current system suggests that at least some of the statute’s objectives are not being met. More

acutely, smaller creators and OSPs have voiced in Study comments and roundtable participation

increasing frustration not only with the notice-and-takedown framework not meeting their needs

to protect their works or to serve their customers but also the absence of any satisfactory

opportunities to shape policies and practices that fuel the process. This evidence seems especially

relevant given that the notice-and-takedown system was premised on the idea that copyright

owners and OSPs would find cooperation mutually beneficial.

As stated in the previous section, a system that fails to provide adequate protection of

creators’ rights of all sizes ultimately fails to carry out congressional intent regarding section 512

as well as the overall purpose of copyright law. Any recalibration of this balance, however,

should acknowledge the continuing need for cooperation and compromise among the various

stakeholders. No system, however devised, will be able to prevent false positives or completely

end digital piracy. While consensus-based fixes may be the ideal but not the most realistic

approach to address this balance, cooperation and compromise among all stakeholders, large and

small creators, OSPs, and users, would ensure that everyone has a role and responsibility in

addressing online infringement in a manner suitable to their objectives and resources. This

cooperation should occur at all steps of the notice-and-takedown process. Furthermore, due to

the evolving challenges related to online infringement, any method going forward to effectively

address this issue depends upon accurate and precise data shared through these cooperative

channels.

438

VI. SPECIFIC FINDINGS AND RECOMMENDATIONS

A. Evaluation of the Existing Section 512 Statutory Scheme

More than twenty years have passed since Congress enacted section 512, and, as the

chairman of the Senate Judiciary Committee’s Intellectual Property Subcommittee recently noted,

advantage of the provisions of section 512 to generate billions of dollars of revenue, directly on the backs of copyright

owners.”); UMG Initial Comments at 12 (“In negotiations with copyright owners, YouTube (like other online music

services) is able to point to the vast quantity of unlicensed music that remains available for free online—and which

compensation rates to copyright owners.”).

438

See section V.A.4. (discussion on the need for better facts on which to frame internet policy).

U.S. Copyright Office Section 512 Report

“the wear and tear is showing.”

439

Indeed, the effect of societal and technological change on

section 512 has long been evident. With the Study’s guiding principles in mind, the Office has

formulated several recommendations for legislative action, with some offering greater potential

improvements for the functioning of the section 512 system than others. In crafting these

recommendations, the Office hewed closely to Congress’ stated intentions in drafting section 512.

Hence, these recommendations are based on the Office’s evaluation of how well the balance that

Congress sought to strike with section 512 has been maintained in practice, as shown through an

evaluation of how each building block of the existing section 512 statutory scheme is currently

functioning. This included looking at developments related to how OSPs qualify for the section

512 safe harbors, various aspects of the notice-and-takedown process itself, and related provisions

of section 512.

Over the decades, the shift in the balance of the benefits and obligations for copyright

owners and OSPs under section 512 has resulted in an increasing burden on rightsholders to

adequately monitor and enforce their rights online, while providing enhanced protections for

OSPs in circumstances beyond those originally anticipated by Congress. The shift can be

explained by the confluence of different factors. As discussed above, there have been significant

changes to the technical landscape since the DMCA passed that have increased the potential

economic impact of online infringements. These changes have been compounded by

developments with respect to judicial interpretations of existing provisions. Much of the story of

how section 512 works today is a story of how relatively broad provisions have been interpreted

and applied in a manner that broadens the protections for some stakeholders, while narrowing

the benefits of the system for others.

As discussed further below, the scope and coverage of the safe harbors have expanded in

a way that may not be in accordance with congressional intent, while the provisions intended to

relieve some of the administrative burden of the notice-and-takedown process on copyright

owners have been interpreted narrowly. In this section, we look at the existing provisions of

section 512 and how they have been interpreted by the courts, in order to determine how well

they are (or are not) working. Later sections will look at approaches to the problem of online

1. Qualification for the Section 512 Safe Harbors

In crafting section 512, Congress enumerated four broadly-worded safe harbors tied to

specific types of online activities, in order to enable the system to adapt to future technological

developments. It is undisputed, however, that by electing to enumerate certain activities that

benefit from the safe harbors, Congress determined that not all online activities were intended to

439

Sen. Thom Tillis, Getting Back to Basics on the Digital Millennium Copyright Act, THE HILL (Dec. 17, 2019, 2:30 PM),

https://thehill.com/blogs/congress-blog/technology/474918-getting-back-to-basics-on-the-digital-millennium-copyright-

act.

U.S. Copyright Office Section 512 Report

fall within the purview of section 512.

440

Instead, as drafted, section 512 creates safe harbors for

four different types of online activities, and imposes conditions and obligations that OSPs must

meet in order to invoke the protections of these safe harbors. There are two obligations that all

OSPs must meet to be eligible for safe harbor protections;

441

the remaining limitations and

obligations depend upon the type of online activity in which the OSP is engaged.

442

Thus, to determine that an OSP is entitled to the benefit of a section 512 safe harbor, a

court must conclude that: (1) the OSP meets the definition of “service provider” set forth in

section 512(k) and the potentially-infringing activity falls within one of the four enumerated safe

harbors in sections 512(a)–(d); (2) the OSP complies with all applicable obligations, such as the

adoption and reasonable implementation of a repeat infringer policy and the accommodation of

standard technical measures; and (3) with respect to OSPs engaged in hosting and providing

online information location tools, the knowledge and financial benefit limitations set forth in

sections 512(c)(1) and (d)(1) do not apply.

443

As discussed further in this section, while courts

have expansively read the enumerated safe harbors, they have interpreted the obligations and

440

Compare S. REP. NO. 105-190, at 19 (1998) (“[T]he Committee decided . . . to create a series of ‘safe harbors’ for certain

common activities of service providers.”) (emphasis added), with 47 U.S.C. § 230 (providing a broader definition of

“interactive computer service,” combined with a complete shield against liability except for certain types of claims).

441

These two obligations are: (i) they must adopt, reasonably implement, and inform subscribers and account holders

of a repeat infringer policy and (ii) they must accommodate and not interfere with standard technical measures. See 17

U.S.C. § 512(i)(1).

442

OSPs engaged in system caching activities must: (i) register a DMCA agent with the U.S. Copyright Office and (ii)

follow the limited notice-and-takedown process set forth in section 512(b)(2)(E). See 17 U.S.C. § 512(b). OSPs engaged

in either hosting activities or providing online information location tools must also register a DMCA agent with the

U.S. Copyright Office and follow the notice-and-takedown process set forth in in section 512(c)(3). See 17 U.S.C. §§

512(c), (d). However, there is an additional limitation on application of the section 512(c) and (d) safe harbors—the OSP

must not: (i) have actual knowledge of the infringement (the “actual knowledge” standard), (ii) be aware of facts or

circumstances from which infringing activity is apparent (the “red flag knowledge” standard), or (iii) receive a financial

benefit directly attributable to the infringing activity while also having the right and ability to control the infringing

activity (the “financial benefit/right and ability to control” standard). See 17 U.S.C. §§ 512(c)(1), (d)(1).

443

Very few courts actually address which party has the burden of proof with respect to the safe harbors, often

requiring rightsholders to “prove” whether an OSP qualifies for the safe harbor. The safe harbors are affirmative

defenses, for which the initial burden of proof would typically fall on OSPs. See Fung, 710 F.3d at 1039; ALS Scan, Inc. v.

RemarQ Cmtys., Inc., 239 F.3d 619, 625 (4th Cir. 2001); cf. Disney Enters., Inc. v. Hotfile Corp., No. 11-20427-CIV, 2013 WL

6336286, at *19 (S.D. Fla. Sept. 20, 2013) (noting that “[a]lthough an affirmative defense, the DMCA has often been

construed in favor of service providers, requiring relatively little effort by their operations to maintain immunity”).

Some courts have found the burden of proof to be split between the OSP and rightsholder, requiring the OSP to prove

that it (1) meets the definition of “service provider” in section 512(k) and the potentially-infringing activity falls within

one of the four enumerated safe harbors in sections 512(a)–(d), and (2) complies with all applicable obligations, while

rightsholders bear the burden of proof with respect to (3) whether the limitations set forth in sections 512(c)(1) and

(d)(1) apply. See, e.g., Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1114 (9th Cir. 2007), cert. denied, 552 U.S. 1062 (2007)

(citing Napster, 239 F.3d at 1013 n.2); Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78, 94–95 (2d Cir. 2016). Notably, the

Ninth Circuit in CCBill cites a passage from Napster (discussing the burden of proof for proving direct infringement) for

the proposition that plaintiffs have the burden of proof with respect to section 512’s knowledge requirements. Some

courts likewise appear to require plaintiffs to bear the burden of proof with certain eligibility exclusions like section

512(i). See infra n.568.

U.S. Copyright Office Section 512 Report

limitations in (2) and (3) quite narrowly, resulting in broader application of the safe harbors than

Congress likely anticipated.

a) Eligible Categories of OSPs

Over the past twenty years, the courts have broadly applied the four categories of safe

harbors under section 512,

444

covering OSPs engaged in a wide range of activities, such as

providing a marketplace for the sale of hard goods, modification by the OSP of user-uploaded

content, and financial services offered by payment processers.

445

Today, section 512 is regularly

interpreted by the courts to cover many technologies that Congress could not have envisioned

when it enacted the DMCA. In part, this has been due to the substantial evolution of digital

technology since 1998. As new online services and technologies have developed, courts have

been asked to determine whether such new services and technologies meet the threshold

requirements for section 512’s safe harbors. At times, activities that lie outside the four corners of

the text have been found to be sufficiently “related” or ancillary to one or more of the core section

512 activities to enjoy the protections of the safe harbors.

446

During the public roundtables and in public comments submitted for the Study,

stakeholders did not fundamentally disagree with the proposition that courts have interpreted

the four safe harbor categories broadly—they disagree instead over whether courts should have.

Rightsholders generally express concern that the safe harbors have been construed beyond

congressional intent.

447

With respect to application of the section 512(a) safe harbor, some

rightsholders’ comments reflect a feeling that courts have interpreted it over broadly,

448

though

others assert that the statutory definition was too broad in the first place.

449

On section 512(b),

444

As discussed below, while courts have found as an initial matter that one or more of the four safe harbors applies to

a particular type of conduct, courts have sometimes relied on other provisions of section 512 to exclude a particular

OSP from the protections of the safe harbors.

445

See Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 38–39 (2d Cir. 2012) (finding that video hosting site that reproduced,

transcoded, played back, and displayed content related to user-uploaded material met the qualifications for the section

512(c) safe harbor); CCBill, 488 F.3d at 1116 (remanding to the district court the question of whether a payment

processor qualified for the section 512(a) safe harbor); Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 2d 1090, 1110 (W.D.

Wash. 2004) (finding that Amazon’s zShops third party vendor platform and associated payment processing activities

met all of the requirements of the section 512(c) safe harbor). Cf. In re Aimster Copyright Litig., 334 F.3d 643, 655 (7th Cir.

2003) (finding that a P2P file-sharing service qualifies as a “service provider” under section 512(k), though it does not

qualify for protection under any of the safe harbors).

446

See Viacom, 676 F.3d at 39–40.

447

See Tr. at 347:13–22 (May 12, 2016) (Elizabeth Valentina, Fox Entertainment Group); see also UMG Initial Comments at

9–10 (“The courts have also construed the activities covered by the Section 512 safe harbors beyond what is

appropriate.”).

448

See MPAA Initial Comments at 7 (stating that “courts have erroneously expanded the scope of what constitutes

‘intermediate and transient storage’ for purposes of section 512(a)”).

449

See AAP Initial Comments at 2–3 (stating that the section 512 safe harbors are overbroad because the section

512(k)(1)(B) definition is overbroad).

U.S. Copyright Office Section 512 Report

only a few rightsholders offer input on how courts have defined the system caching safe harbor,

though the MPAA claimes that one court “ignored . . . critical limitations” in the statute by

holding that “intermediate” or “temporary” can be 20 days.

450

Rightsholders are more universally

critical of the section 512(c) safe harbor for storage and hosting services, saying that courts have

stretched it far beyond the storage function of such services to “all the functions that they

provide,”

451

including streaming and downloading, and that courts have incorrectly deemed

eligible storage services that modify user content or use algorithms to recommend content to

other users.

452

Rightsholders, as well as OSPs and users, generally have little to say about how

courts have construed the entities covered by section 512(d).

453

OSPs, on the other hand, say that courts have been correct to broadly interpret eligibility

for the safe harbors. Moreover, many technology companies credited this broad application of

the safe harbors with nurturing the amazing growth of the internet and undergirding the United

States’ position as the global leader in the internet’s continued development.

454

Their comments

were less focused on the individual safe harbors and more generally praising of how the overall

system of safe harbors has worked. The one safe harbor that many OSPs do, in fact, focus on is

the safe harbor for hosting and storage. OSPs argue that courts have correctly interpreted the

scope of section 512(c) to include related activities, such as “photo and video hosting, image

search, real estate listings, and virtual marketplaces.”

455

Moreover, they state that such

interpretations reflect section 512’s adaptability to new technologies, which “has also fostered the

development of many of today’s most successful cutting-edge online services, including social

networking, instant messaging, and live video streaming.”

456

i. Section 512(c) Safe Harbor

The biggest source of conflict between stakeholders on the scope of the safe harbors is

whether courts’ application of the section 512(c) safe harbor for “storage at the direction of a user

of material that resides on a system or network controlled or operated by or for the service

provider”

457

has swept in services that go beyond serving up content “at the direction of a user.”

450

MPAA Initial Comments at 7–8. See also A2IM Music Community Initial Comments at 7 n.23 (claiming that the court

in Field v. Google “expand[ed] the safe harbor[] beyond the four corners of the statute”).

451

Tr. at 347:13–22 (May 12, 2016) (Elizabeth Valentina, Fox Entertainment Group). See also UMG Initial Comments at 9–

10.

452

See, e.g., c3 Initial Comments at 12–14; MPAA Initial Comments at 6–7.

453

But see Google Initial Comments at 5 (specifically mentioning search engines in stating that courts have gotten the

categories correct).

454

See USTelecom Initial Comments at 4 (“The safe harbor provisions contained in the DMCA have clearly played an

important role in helping to create a legal environment through which the Internet’s growth has flourished.”).

455

CCIA Initial Comments at 4.

456

Google Initial Comments at 5.

457

17 U.S.C. § 512(c)(1).

U.S. Copyright Office Section 512 Report

Courts have held that section 512(c) includes video-hosting sites that make copies of videos in

different encoding schemes (transcoding), deliver videos to a user’s browser cache at the user’s

request (playback), use algorithms to identify and display related videos, and syndicate content

to a third party;

458

online storage lockers that are used to display or disseminate copyright-

protected content;

459

and e-commerce sites that provide a platform for users to market and sell

their products.

460

Courts have reasoned that these services qualify for the section 512(c) safe harbor because

their activities are “related” to the activity of storing user-uploaded content. For example, in

Viacom International, Inc. v. YouTube, Inc., owners of copyrighted videos sued YouTube for

operating a website that allowed users to upload videos, alleging direct and secondary copyright

infringements.

461

YouTube sought protection under section 512(c), claiming that three challenged

software functions—transcoding, playback, and related videos—were offered “by reason of the

storage” and thus were entitled to the safe harbor.

462

The Second Circuit agreed.

463

The Second

Circuit reasoned that transcoding and playback were automated functions, and that “to exclude

these automated functions from the safe harbor would eviscerate the protection afforded to

service providers by § 512(c).”

464

For the related videos feature, “by which a YouTube computer

algorithm identifies and displays ‘thumbnails’ of clips that are ‘related’ to the video selected by

the user,” the court said a similar analysis applied.

465

In short, the Second Circuit held that the

related videos feature falls under the section 512(c) safe harbor because it is automated,

responsive to user inputs, and helps users locate and access user-stored videos; thus, it “‘is closely

related to, and follows from, the storage itself,’ and is ‘narrowly directed toward providing access

to material stored at the direction of users.’”

466

On remand for further fact-finding, the district

court also held that a fourth software function—syndicating videos to a third party—“make[s]

458

See Viacom, 676 F.3d at 39–40. See also Veoh IV, 718 F.3d at 1015–16 (holding that section 512(c) is not limited to

services that merely host user-generated content and that it also covers the access-facilitating processes that

automatically occur when a user uploads a video to a host site).

459

Hotfile, 2013 WL 6336286, at *19 (“The term ‘storage’ has also been broadly interpreted to include displaying or

disseminating content that is uploaded to the system’s servers at the direction of users, which covers Hotfile’s

operations.”). However, Hotfile lost the protection of the section 512(c) safe harbor because (i) it did not reasonably

implement a repeat infringer policy and (ii) it did not substantially comply with section 512(c)(2) since it delayed

registering a DMCA agent with the Copyright Office. See id. at *20–*26.

460

See, e.g., Corbis Corp., 351 F. Supp. 2d at 1110.

461

Viacom, 676 F.3d at 25–26.

462

Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp. 2d 514 (S.D.N.Y. 2010), aff’d in part, rev’d in part, and vacated, Viacom Int’l,

Inc. v. YouTube, Inc., 676 F.3d 19 (2d Cir 2012).

463

Viacom, 676 F.3d at 39–40.

464

Id. at 39.

465

Id.

466

Id. at 40 (quotation marks omitted) (quoting Veoh I, 620 F. Supp. 2d at 1092).

U.S. Copyright Office Section 512 Report

user-stored videos more readily accessible (without manual intervention)” and thus is also done

“by reason of the storage” and qualifies for the safe harbor.

467

The Viacom district court and Second Circuit thus relied heavily on the “automated”

nature of YouTube’s processes in determining whether to apply the safe harbors, rather than

focusing on whether the particular processes themselves fell within one of the enumerated safe

harbors. Viacom built on a related-services doctrine developed by a district court in UMG

Recordings, Inc. v. Veoh Networks, Inc. (“Veoh I”).

468

The Veoh I district court said the plaintiff was

wrong to assume “that section 512(c) requires . . . that the infringing conduct be storage” and that

instead “the statute extends to functions other than mere storage; it applies to ‘infringement of

469

Subsequently, the Ninth Circuit

built on this and said that section 512(c) puts “no limitation on the service provider’s ability to

modify user-submitted material to facilitate storage and access.”

470

The Ninth Circuit expressly

stated that Congress created the hosting safe harbor to cover activities beyond mere hosting: “the

language of the statute recognizes that one is unlikely to infringe a copyright by merely storing

material that no one could access, and so includes activities that go beyond storage.”

471

The Second and Ninth Circuits, along with their lower courts, have thus broadened the

protections of the safe harbors to include services being done “by reason of” storage of the

copyrighted material at the direction of a user. Such a broad interpretation of the activities

covered by the section 512(c) safe harbors may result in protecting activities beyond what

Congress initially anticipated, and perhaps beyond what Congress intends to protect. For

example, the algorithm used by YouTube to identify “related” clips has the ultimate effect of

promoting specific content to a given user. By mechanizing a function that in the early days of the

internet would have been done by the OSP’s employees (much as early search engines were

created by hand, rather than the use of web crawlers), YouTube’s software—and similar content-

curating and promoting software on other platforms—may go beyond what Congress intended

when it sought to protect an OSP from liability for “storage at the direction of a user of

[potentially infringing] material.”

472

The Office is unconvinced that Congress, in 1998, intended to protect any additional

services related to the storage of content, beyond the act of storage or providing access to the

content. For the section 512(c) safe harbor, Congress excluded material that an OSP stores on its

network through its own actions and not at the direction of a user, and the example Congress

467

Viacom Int’l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 123 (S.D.N.Y. 2013).

468

Veoh I, 620 F. Supp. 2d 1081.

469

Id. at 1088–89 (quoting 17 U.S.C. § 512(c)).

470

Veoh IV, 718 F.3d at 1019.

471

Id.

472

17 U.S.C. § 512(c)(1).

U.S. Copyright Office Section 512 Report

gave of a section 512(c)-eligible OSP was one providing server space for a website, chatroom, or

other forum for user posts.

473

The statute makes no mention of related services or of user

experience. It expressly states that an OSP that meets other requirements will not be liable for

monetary relief “for infringement of copyright by reason of the storage at the direction of a user

of material that resides on a system or network.”

474

The legislative history—which gave as

examples of services covered by section 512(c) those “providing server space for a user’s web

site”

475

—is no more useful for OSPs claiming that services that modify content they host fit within

the bounds of section 512(c).

It is not clear that “by reason of the storage” means “services related to the storage”—

rather, Congress may have intended “by reason of” to refer to the various exclusive rights that

can be infringed through the act of content hosting and providing access thereto (e.g.,

reproduction with a server copy and public performance or display when a third party accesses

the user-uploaded content). If Congress in fact intended section 512(c) to cover some related

services, additional clarity to assist courts with the determination of where to draw such a line

may be advisable. For example, if section 512(c) can reasonably be interpreted as providing a safe

harbor for services and activities related to providing access to content (such as automatically

optimizing playback definition depending on the bandwidth available through the user’s internet

service), it does not necessarily follow that services that promote consumption of specific user-

uploaded content are likewise insulated from liability. It is not clear what limiting factors from

the statute a court could rely upon to reasonably draw the line on such services—is it only

permissible to serve up content automatically when an algorithm determines that it is related to

content in which the user had previously indicated an interest, or could the selection be made for

economic or other reasons?

ii. Section 512(a) Safe Harbor

The section 512(a) safe harbor protects OSPs from liability for copyright infringement that

occurs “by reason of the provider’s transmitting, routing, or providing connections for, material

through a system or network controlled or operated by or for the service provider, or by reason of

the intermediate and transient storage of that material in the course of such transmitting, routing,

or providing connections.”

476

The prototypical example of a conduit service provider, as detailed

in the legislative history, is an ISP that literally provides a user with an internet connection.

477

Nonetheless, courts have on occasion applied the section 512(a) safe harbor in an

expansive manner, at times in ways likely not within the scope of what Congress intended. For

473

H.R. REP. NO. 105-551, pt. 2, at 53 (1998).

474

17 U.S.C. § 512(c)(1).

475

H.R. REP. NO. 105-551, pt. 2, at 53 (1998).

476

17 U.S.C. § 512(a) (emphasis added).

477

See H.R. REP. NO. 105-551, pt. 2, at 50-51 (1998).

U.S. Copyright Office Section 512 Report

example, in In re Aimster Copyright Litigation, the Seventh Circuit addressed whether the P2P

developer Aimster, whose software lived on top of instant-messaging services like AOL’s AIM

messenger, should be held liable “for copyright infringement as a result of file swapping among

their subscribers.”

478

The court concluded that “[a]lthough the Act was not passed with [P2P]

services in mind, the definition of Internet service provider is broad,”

479

and, as the district court

judge had ruled, “Aimster fits it.”

480

In another case, the Ninth Circuit reasoned that section

512(a) does not require that the service provider “itself transmit the infringing material” and,

thus, a qualifying service provider can be one that provides services to OSPs—even if the services

are being provided to an OSP that itself would not qualify for a safe harbor—such as an online

payment processor for websites that carry infringing material.

481

As discussed above, for the definition of conduits eligible for the section 512(a) safe

harbor, Congress started with telecommunications law and adapted it “to make it appropriate for

the Internet and online media.”

482

Congress envisioned the mere conduit safe harbor to protect

backend, internet infrastructure services like “providing connectivity for a world wide web

site.”

483

Its stated intent was to limit liability for those providing pipes and facilities and

hardware that infringing material may incidentally travel across or utilize as it goes from user to

user. It is understandable how the Aimster court looked at the definition of “service provider” in

section 512(k) and concluded that P2P file-sharing networks fit, though it raises a question about

whether it is a good policy outcome to have liability or safe harbor protections for a file-sharing

service turn on whether users pull from a central server managed by the service provider or, as in

Aimster, pull directly from other users with the service provider just providing the connections.

Of course, as discussed below, other provisions in section 512 may (and have) nonetheless

prevented P2P services from benefitting from the section 512 safe harbors, and as a result the

broad interpretation of section 512(a) may have little real-world impact. Any re-evaluation of the

contours of covered section 512(a) activity, though, will need to be kept somewhat broad so as to

future-proof the statute for tomorrow’s new technologies.

Similarly, the Office questions whether a third party that does not directly transmit or

store user traffic or content, like payment processors, should be considered conduits entitled to

protection under section 512(a). While there has been no final ruling on this issue, the Ninth

478

In re Aimster, 334 F.3d at 655. Though the court held that a service like Aimster could qualify for a section 512 safe

harbor, Aimster, in fact, lost the safe harbor because it had no repeat infringer policy. See id. at 655.

479

Id. at 655 (quotation marks omitted) (quoting 17 U.S.C. § 512(k)(1)(B)).

480

Id. at 655. See also In re Aimster Copyright Litig., 252 F. Supp. 2d 634, 658 (N.D. Ill. 2002) (“A plain reading of both

definitions [in section 512(k)] reveals that ‘service provider’ is defined so broadly that we have trouble imagining the

existence of an online service that would not fall under the definitions, particularly the second. In any event, Aimster

certainly qualifies under the first version (and, by extension, the second).”).

481

CCBill, 488 F.3d at 1116.

482

S. REP. NO. 105-190, at 54 (1998). See also H.R. REP. NO. 105-551, pt. 2, at 63 (1998).

483

S. REP. NO. 105-190, at 54 (1998).

U.S. Copyright Office Section 512 Report

Circuit in Perfect 10, Inc. v. CCBill LLC appeared to be open to the argument that a payment

processor could qualify under section 512(a).

484

Specifically, the Circuit Court stated that, on the

facts before it, “[i]t is unclear whether such payment is a digital communication, transmitted

without modification to the content of the material, or transmitted often enough that CCBill is

only a transient holder.”

485

This evaluation is in some tension with the wording of section 512(a),

which states that an OSP that meets the conditions of the section 512(a) safe harbor shall not be

liable for monetary damages “by reason of the provider’s transmitting, routing, or providing

connections for, material through a system or network controlled or operated by or for the service

provider, or by reason of the intermediate and transient storage of that material in the course of

such transmitting, routing, or providing connections.”

486

This language would seem to imply

that, in order to qualify under section 512(a), the OSP’s liability should arise as a result of the

original user’s material itself being infringing, rather than as a result of an act of exchanging

payment in return for a (different) user to obtain the infringing material. The case settled before

any final determination was made, and no cases since have helped articulate whether third

parties like payment processors should qualify for section 512(a). The answer has significant

economic consequences, because payment processors are essential for infringers to be able to

profit from their activities.

487

iii. Section 512(b) and (d) Safe Harbors

The section 512(b) and (d) safe harbors for system caching and linking, respectively, do

not appear to raise the same issues as the other two safe harbors. The system caching safe harbor

has not received much judicial attention, but in Field v. Google, Inc., the court deemed storage of 14

to 20 days as “temporary,” and thus covered by section 512(b).

488

The court also ruled that a

owner posted content online without using the robots.txt script, which tells search engines not to

crawl the content.

489

In other words, the court said that unless a copyright owner took an action

484

See CCBill, 488 F.3d at 1116 (finding that a payment processor for online services fit within the section 512(k)(1)(A)

definition for “service provider,” rejecting the plaintiff’s argument that the payment processor “is not eligible for

immunity under § 512(a) because it does not itself transmit the infringing material,” but remanding to the district court

to determine whether the payment processor met the eligibility requirements of section 512(a)).

485

CCBill, 488 F.3d at 1116.

486

17 U.S.C. § 512(a) (emphasis added).

487

See MPAA Initial Comments at 26–27 (describing the role payment processors can play in both enabling and

preventing infringers from profiting). Payment processors have been involved in some section 512-related voluntary

initiatives, such as “follow the money” and other best practices. See IPEC, SUPPORTING INNOVATION, CREATIVITY &

ENTERPRISE, CHARTING A PATH AHEAD: U.S. JOINT STRATEGIC PLAN ON INTELLECTUAL PROPERTY ENFORCEMENT, FY 2017–

2019, 61–63 (2016), https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/IPEC/ 2016jointstrategicplan.pdf.

488

412 F. Supp. 2d 1106, 1124 (D. Nev. 2006).

489

Id. at 1113–16. The court treated this as the author “transmit[ing] the material in question, the pages of his Web site,

to Google’s Googlebot at Google’s request,” which satisfies the section 512(b)(1)(B) requirement that “the material is

transmitted from [Person 1] through the system or network to [Person 2] at the direction of [Person 2].” Id. at 1124.

U.S. Copyright Office Section 512 Report

to prevent a search engine from crawling, the copyright owner had consented to caching

activities.

Section 512(d), for its part, has been interpreted to include traditional web services such as

search and linking,

490

as well as a social bookmarking service that “enable[d] individuals who

have similar tastes to point one another (and actually provide one another access) to online

materials that cater to those tastes, by bookmarking materials on the social-bookmarking service’s

website.”

491

Websites that traffic in providing connections to copyright-protected content, such as

torrent websites, also have been found to fit within the threshold requirement for information

location tools, but some such OSPs have lost the section 512(d) safe harbor because they violated

other criteria, particularly red flag knowledge of infringing activities.

492

* * *

While Congress surely intended for the section 512 safe harbors to be interpreted broadly,

they are not (and should not be) limitless.

493

Though the definitions of “service provider” in

490

See, e.g., Perfect 10, Inc. v. Google, Inc., No. CV 04–9484, 2010 WL 9479059 (C.D. Cal. July 26, 2010) (finding that Google

was entitled to the section 512(d) safe harbor for its web and image search tools).

491

Flava Works, Inc. v. Gunter, 689 F.3d 754, 756 (7th Cir. 2012).

492

See, e.g., Fung, 710 F.3d at 1046–47. A related issue is the so-called “server test,” which says that if the owner of a

computer does not store and serve content to a user, it “is not displaying that information, even if such owner in-line

links to or frames the electronic information.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th Cir. 2007).

Applying the server test, courts have said that OSPs are not liable for direct infringement of the Copyright Act’s

exclusive right of display, so long as the content they are providing to users without a license does not reside on the

OSP’s server. See, e.g., Leveyfilm, Inc. v. Fox Sports Interactive Media, LLC, No. 13 C 4664, 2014 WL 3368893, at *5 (N.D. Ill.

July 8, 2014) (“Furthermore, Leveyfilm has not submitted any evidence that Wysocki’s article or the DVD cover photo

were ever saved on Yardbarker’s servers. Without such evidence, Leveyfilm cannot show that there is a genuine

question of fact regarding whether Yardbarker—and by extension, Fox—copied or displayed the photo.”). The viability

of the server test was recently called into question by the Southern District of New York, which found in 2018 that a

news website that displayed an “embedded” photo that resided on another server was still liable for copyright

infringement. Goldman v. Breitbart News Network, LLC, 302 F. Supp. 3d 585, 593 (S.D.N.Y. 2018) (“The plain language of

the Copyright Act, the legislative history undergirding its enactment, and subsequent Supreme Court jurisprudence

provide no basis for a rule that allows the physical location or possession of an image to determine who may or may

not have ‘displayed’ a work within the meaning of the Copyright Act.”). The defendant submitted an interlocutory

appeal to the Second Circuit on this issue, which was denied. See Adam R. Bialek, SCOTUS Showdown Will Have to Wait

as Second Circuit Denies Petition to Review SDNY Rejection of Server Test for Copyright Infringement, NAT’L L. REV. (Jul. 19,

2018), https://www.natlawreview.com/article/scotus-showdown-will-have-to-wait-second-circuit-denies-petition-to-

review-sdny. The remaining defendants in the case were voluntarily dismissed over the course of the next 16 months,

and the case was terminated on May 28, 2019, without further rulings regarding defendants’ liability. See Docket

Report, No. 1:17-cv-03144 (S.D.N.Y. May 28, 2019).

493

Some courts have recognized these limits when considering issues such as whether and when users act as agents of

the OSP, or whether creating and selling physical products at the direction of users was the type of online service

Congress sought to protect from liability. See, e.g., Mavrix Photographs, LLC v. LiveJournal, Inc., 873 F.3d 1045, 1054 (9th

Cir. 2017) (holding “that common law agency principles apply to the analysis of whether a service provider

. . . is liable for the acts of the . . . moderators”); Greg Young Publ’g, Inc. v. Zazzle, Inc., No. 2:16–CV–04587, 2017 WL

2729584, at *6–*8 (C.D. Cal. May 1, 2017) (holding that an e-commerce site was entitled to the section 512(c) safe harbor

for hosting the images that users uploaded, but that creating and selling physical products, even though at the direction

U.S. Copyright Office Section 512 Report

subsection (k) are exceptionally broad—so much so that one district court said “that we have

trouble imagining the existence of an online service that would not fall under the definitions”

494

—

these definitions mark only the initial threshold to determining whether a service provider

qualifies for one of the safe harbors. The next question is whether a service provider, as defined

by subsection (k), fits into one of the four safe harbor categories, each with their own limiting

language that, though broad, is narrower than the definitions in section 512(k).

Congress’ intent that some activities be excluded from these safe harbors is clear from the

language of the statute as well as from explicit references in the legislative history.

495

Though

Congress intended for flexible application that would enable the safe harbors to cover yet-

unknown technologies and types of online services,

496

the legislative history reflects a scope that,

though flexible and forward-looking, may have been intended to be more narrowly crafted than

courts have recognized.

497

Based on the Office’s review of the case law related to the eligibility

requirements for the section 512(a), (b), (c), and (d) safe harbors, there is a risk that they, as

currently interpreted, may encompass activities and service providers that Congress did not

intend to protect under the safe harbors.

Notably, stretching section 512(c) to cover any activities remotely related to “storage” of

the content, no matter how attenuated, has affected the balance of section 512 against copyright

owners in a way that it does not appear Congress intended. The Office believes that even if

section 512(c) was meant to include some “related services,” Congress did not intend to include

related services that modify the content or that promote consumption of specific content, rather

than just increasing access to the content. If Congress determines that this change to the original

balance of section 512 is, as a policy matter, undesirable, then Congress may wish to step in with

clear statutory language.

Another area that may benefit from additional clarity is the phenomenon of legal and

judicial resources being called upon to interpret vague statutory language, especially in cases

where technological changes have arguably overtaken the original meaning. In particular,

of users, was not entitled to the hosting safe harbor); accord Gardner v. CaféPress Inc., No. 3:13–cv–1108, 2014 WL 794216,

at *5 (S.D. Cal. Feb. 26, 2014) (“[A]n online service that directly sells, rather than facilitates the sale of, products likely

falls outside the definition of a ‘service provider.’”).

494

In re Aimster Copyright Litig., 252 F. Supp. 2d 634, 658 (N.D. Ill. 2002).

495

For example, as noted above, Congress excluded from the mere conduit safe harbor those services that exercise

editorial discretion in determining what material to put online.

496

See CCIA Initial Comments at 3 (stating that Congress “inten[ded] that Section 512 be a forward-looking statute, so

as to encourage investment in innovative services that did not yet exist in 1998”).

497

Courts have construed the safe harbors broadly, and in doing so have extended protection to some services that

Congress may not have intended to include in section 512’s limitation on liability. This alone would likely not result in

a significant shift in the balance Congress originally intended. Current interpretations of other provisions in section 512

intended to limit the availability of the safe harbors, however, have resulted in parties placing unanticipated pressure

on the categorical thresholds for the safe harbors, which is a task they were not designed for.

U.S. Copyright Office Section 512 Report

questions like the amount of time that qualifies as “temporary” for the section 512(b) safe harbor

may benefit from regular review and updating. One court said that 14 to 20 days qualified as

temporary for caching,

498

but “temporary” has a technological component—and what may have

been temporary per the technological capabilities and needs of 1998 may no longer be temporary.

Similarly, temporary for an online service run by a part-time hobbyist may not be temporary for

an online service run by a large, billion-dollar company. It seems that this provision is likely to be

explicitly context dependent, but may benefit from an articulation of the factors to be considered,

including factors related to the type of content at issue (such as pre-release leaks) or the nature of

the service.

Congress also may want to address some of the questions that have not yet been resolved

by the courts, including rearticulating the proper breadth of the section 512(a) safe harbor and

offering more contemporary examples of the types of services that should qualify as conduits. In

particular, does Congress intend for the section 512(a) safe harbor to be available to a broad array

of technology services beyond internet infrastructure—including software that connects users

over P2P networks and services such as payment processors that provide support for conduits?

A final question for Congress to consider is the continued reliance on section 512’s four

function-based safe harbors, especially now that many OSPs offer numerous services and thereby

may fall under multiple safe harbors.

499

Retaining the current structure would continue to defer

to courts the ability to expand (or narrow) the scope of section 512’s safe harbors; the current

system also can force rightsholders and OSPs to invest significant time and money in litigation for

uses that may not be clearly covered by one of the section 512 safe harbor categories, and it can

result in inconsistencies across different courts.

500

b) OSP Obligations: Repeat Infringer Policies

501

A threshold requirement for safe harbor eligibility is section 512(i), which states that any

OSP seeking the benefit of one of the section 512 safe harbors must have “adopted and reasonably

498

Field v. Google, Inc., 412 F. Supp. 2d 1106, 1124 (D. Nev. 2006).

499

For example, should social bookmarking sites that reproduce an image or snippet of text from the bookmarked site

be considered an information location tool under section 512(d), or a content host under section 512(c)? Does it matter

whether the service automatically selects the image or snippet, or if it is designated by the user? Similarly, should

content delivery networks be treated as caching services under section 512(b), or as something more akin to conduits

under section 512(a)? Does it matter to the answer who the customer for these services is—the content owner

/distributer themselves or a third party OSP?

500

One could imaging different systems of safe harbors, such as tying the safe harbors to the type of content being

shared or the commercial/noncommercial nature of the OSP’s activities.

501

Although section 512(i) premises eligibility for the safe harbors on two different OSP obligations—the obligation to

adopt and implement a repeat infringer policy, and the obligation to allow and not interfere with standard technical

measures—the second of these two has had little real-world impact on the availability of the section 512 safe harbors.

This is because, as a number of stakeholders note, to date no technologies have been designated as standard technical

measures. See infra section VI.B.3.

U.S. Copyright Office Section 512 Report

implemented . . . a policy that provides for the termination in appropriate circumstances of

subscribers and account holders of the service provider’s system or network who are repeat

infringers.”

502

Congress included this provision to aid copyright owners in addressing

individuals engaged in ongoing online infringement.

503

While Congress, in order to protect users’

privacy interests, explicitly did not condition the safe harbors on “a service provider monitoring

its service or affirmatively seeking facts indicating infringing activity,”

504

Congress nonetheless

obligated OSPs to implement policies so that “those who repeatedly or flagrantly abuse their

access to the Internet through disrespect for the intellectual property rights of others should know

that there is a realistic threat of losing that access.”

505

Section 512’s repeat infringer provision is one area where the Copyright Office saw some

shift in stakeholder views across the span of the Study, resulting from court decisions handed

down between the initial roundtables and the final roundtable. Early in the Study, rightsholders

criticized the courts’ approach as holding OSPs to a lax standard. Specifically, rightsholders said

that courts had shifted the burden to the rightsholder to establish that an OSP had failed to

comply with the requirements of section 512(i)(1)(A) in adopting or reasonably implementing a

repeat infringer policy, and adopting too lenient of a standard for what qualifies under this

section.

506

The most pressing issue, according to rightsholders, was that courts had left too much

discretion to OSPs in determining who is a repeat infringer.

507

Rightsholders were concerned

502

17 U.S.C. § 512(i)(1)(A).

503

See S. REP. NO. 105-190, at 52 (1998) (“First, the service provider is expected to adopt and reasonably implement a

policy for the termination . . . of the accounts of subscribers . . . who are repeat infringers of copyright . . . . [T]hose who

repeatedly or flagrantly abuse their access to the Internet through disrespect for the intellectual property rights of

others should know that there is a realistic threat of losing that access.”).

504

17 U.S.C. § 512(m)(1). See also S. REP. NO. 105-190, at 52 (1998) (stating that in following its own repeat infringer

policy, an OSP is not required to “investigate possible infringements, monitor its service, or make difficult judgments as

to whether conduct is or is not infringing”).

505

S. REP. NO. 105-190, at 52 (1998).

506

See, e.g., A2IM Music Community Initial Comments at 3 (stating that courts’ interpretations of section 512(i)(1)(A)

have enabled OSPs “to stick their heads in the sand rather than do their fair share”); Authors Guild Initial Comments at

2 (stating that courts have placed minimal requirements upon OSPs and that under current law even a “bare-bones

repeat infringer policy” likely protects an OSP from liability “even if it is profiting from the piracy and does absolutely

nothing to discourage it”). The Authors Guild observed that “there are no set rules on the number of notifications that

need be sent before terminating a user engaging in infringing activity.” Authors Guild Initial Comments at 26 (citing

Capitol Records, LLC v. Vimeo, LLC, 972 F. Supp. 2d 500, 511–17 (S.D.N.Y. 2013) (approving a policy that based

termination on receipt of three notifications)); UMG Recordings, Inc. v. Veoh Networks Inc., 665 F. Supp. 2d 1099, 1118

(C.D. Cal. 2009) (“Veoh II”), aff’d sub nom., UMG Recordings, Inc. v. Shelter Capital Partners LLC, 667 F.3d 1022 (9th Cir.

2011) (“Veoh III”), opinion withdrawn and superseded on reh'g, 718 F.3d 1006 (9th Cir. 2013) (“Veoh IV”) (two notifications);

Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008) (two notifications)).

507

See AAP Initial Comments at 23–24 (calling for more effective systems for identifying suspected persons and

connecting their activity to infringement notifications); Authors Guild Initial Comments at 26 (“Courts have also

struggled with when and how an OSP should determine who the repeat infringers are in order to terminate them.”);

instead in how OSPs choose to implement policies.”).

U.S. Copyright Office Section 512 Report

particularly with users “creating a new account under a new name and thus escaping the

repercussions of whatever the policy would be.”

508

And despite recent court decisions more

favorable to copyright owners,

509

rightsholders still ask for legislation or regulations that better

define terms in section 512(i) and put clearer obligations on OSPs.

510

Rightsholders also urge

greater transparency from OSPs with respect to repeat infringer policies and procedures.

511

OSPs generally agree with rightsholders that the requirements imposed by section

512(i)(1)(A) are not explicit and in some cases are undefined,

512

but some OSPs state that case law

has provided sufficient guidance;

513

moreover OSPs say that the flexibility allowed by case law

508

Getty Initial Comments at 7. Courts typically have not required OSPs to affirmatively police users or to “track users

in a particular way.” Io Grp., 586 F. Supp. 2d at 1145.

509

See, e.g., BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293 (4th Cir. 2018); UMG Recordings, Inc. v.

Grande Commc’ns Networks, Inc., 384 F. Supp. 3d 743 (W.D. Tex. 2019).

510

See, e.g., Tr. at 9:6–15 (Apr. 8, 2019) (Erich Carey, NMPA) (“[T]he BMG v. Cox case highlights an important

development from our perspective, namely the opportunity for the successful enforcement of the plain language of the

DMCA, where a service has enabled repeat infringers in massive scale on its own network. But for present purposes,

this has not changed the music community’s perspective on the DMCA. Enforcement in the BMG litigation involved

the most extreme of circumstances.”). For examples of requests that pre-dated the recent case law developments, see,

e.g., AAP Initial Comments at 22–24; c3 Initial Comments at 35; Digimarc Initial Comments at 8 (urging that Congress

amend the statute to eliminate “appropriate circumstances” and define termination more seriously); Getty Initial

Comments at 8 (urging that a third strike of infringement qualify as “appropriate circumstances”); IPO Initial

Comments at 6 (seeking “[g]reater clarity . . . concerning the contours and requirements for the repeat infringer

policies”); Ringtone Intellectual Property Group (“RIPG”), Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry at 5 (Apr. 1, 2016) (“RIPG Initial Comments”).

511

See, e.g., Carlisle Initial Comments at 9 (proposing a requirement that companies publish transparency reports of

repeat offenders as well as how the policy was applied to them); Dina LaPolt, Comments Submitted in Response to U.S.

rightsholders argue that even where repeat infringer policies do exist, their construction and implementation are

opaque and transparency can be obtained “only through burdensome litigation.” A2IM Music Community Initial

Comments at 40; see also AAP Initial Comments at 23; c3 Initial Comments at 34; Digimarc Initial Comments at 8.

512

See ACA Initial Comments at 4 (“[T]he language of Section 512(i) itself is inherently ambiguous. For example,

nothing in the provision’s statutory language nor its legislative history offer any clarifying guidance with regard to the

elements of the repeat infringer termination condition.”); Engine et al. Initial Comments at 14–16; see also Annemarie

Bridy & Daphne Keller, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at

41 (Mar. 30, 2016) (“Bridy & Keller Initial Comments”) (“[T]he statute provides no definition of ‘repeat infringer’ and is

silent as to what ‘appropriate circumstances’ for termination of access might be.”); Matthew Neco, Comments

Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 9–10 (Apr. 1, 2016) (“Neco Initial

Comments”).

513

See, e.g., DiMA Initial Comments at 8 (stating that “courts have provided considerable insight into the specific

contours of the law’s requirements”); Google Initial Comments at 15–16; see also Bridy & Keller Initial Comments at 41–

42 (arguing that court decisions “set reasonably clear parameters for OSPs to follow as they exercise the discretion

Congress gave them to define and implement compliant repeat infringer policies”). But see ACA Initial Comments at 5

(“Relying on litigation to provide the necessary clarification is inefficient, has resulted in decisions that offer conflicting

guidance, and leaves online service providers . . . exposed to the risk of crushing liability.”); Engine et al. Initial

Comments at 15; OTW Initial Comments at 20 (stating that though “[t]he law on this issue isn’t particularly well-

developed[,] . . . [a]ny legislative attempt to define a repeat infringer policy would be unlikely to give clarity”).

U.S. Copyright Office Section 512 Report

has been essential to effective implementation of a repeat infringer policy.

514

While some OSPs

and user advocacy groups request clarification of what constitutes “repeat” infringement, as well

as circumstances requiring termination,

515

most argue that courts’ interpretations have been

sufficient so far, and further clarification would unduly restrict the flexibility that OSPs require.

516

That said, OSPs are critical of two recent decisions applying section 512(i). In particular,

they argue that the courts in those cases—BMG Rights Management (US) LLC v. Cox

Communications, Inc.

517

and UMG Recordings, Inc. v. Grande Communications Networks, Inc.

518

—

misconstrued the definition of “repeat infringer” to include alleged infringements, which OSPs say

burdens them in a way Congress did not intend.

519

OSPs and user advocacy groups continue to

argue that only an infringer who had repeatedly been adjudged as an infringer—likely by a

court—could meet the statutory standard for “repeat infringer.”

520

OSPs also say that, given the

role that internet access plays in modern life, terminating account access to conduit ISPs (if not,

perhaps, to OSPs like Facebook and Google) is excessively punitive, to a degree not anticipated in

1998.

521

514

See Facebook Initial Comments at 10; Google Initial Comments at 15.

515

See ACA Initial Comments Initial Comments at 11; Engine et al. Initial Comments at 15–16.

516

See DiMA Initial Comments at 8; Google Initial Comments at 15–16; Internet Association Initial Comments at 20

(arguing that “a statutory scheme mandating more specific, inflexible action” would simply lead to litigation, rather

than allowing for the development of “more effective technology and systems of combating repeat infringers”); see also

Bridy & Keller Initial Comments at 43 (stating that the body of case law “is now sufficiently large and sufficiently

consistent that there is no need for Congress to add specificity to the current language”); CCIA Initial Comments at 23–

24 (observing that the flexibility in section 512(i) is necessary to account for the variety of services addressed by 512(a)–

(d), from comment sections through to essential email systems and self-employment platforms).

517

BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293 (4th Cir. 2018) (“Cox”).

518

UMG Recordings Inc. v. Grande Commc’ns Networks, Inc., 384 F. Supp. 3d 743 (W.D. Tex. 2019) (“Grande Commc’ns”).

519

See, e.g., CCIA Initial Comments at 23 (“Indeed, many service providers and a handful of courts that have considered

this question have construed § 512 to refer to repeat alleged infringers, instead of repeat infringers, the plain language of

§ 512(i) notwithstanding.”); Engine et al. Initial Comments at 15.

520

See, e.g., Tr. at 132:10–13 (Apr. 8, 2019) (Jonathan Band, LCA); Tr. at 266:10–15 (Apr. 8, 2019) (Catherine Gellis, The

Copia Institute); Tr. at 375:12–16 (Apr. 8, 2019) (Matthew Schruers, CCIA) (“[T]he statute says, repeat infringer. It

doesn’t say repeat alleged infringer. I’m aware that some courts have interpreted that differently. But the language of

the section is the language of the section.”). But see Tr. at 302:8–20 (May 12, 2016) (George Borkowski, RIAA) (“And if

you wait for an adjudicated infringer, you would read this part of the statute out of the statute because it takes years to

have an actual adjudication.”); Tr. at 282:11–16 (May 12, 2016) (Ben Sheffner, MPAA) (noting that “courts have

appropriately said” adjudication of infringement is not the standard for section 512(i)); Tr. at 373:15–374:12 (Apr. 8,

2019) (Lui Simpson, AAP) (noting that a requirement to have repeat infringers adjudicated as such would result in the

material being available for longer periods of time, and that such a rule “will strip out, frankly, what even makes a

notice-and-takedown system workable”).

521

See, e.g., ACA Initial Comments at 10; CTIA Initial Comments at 12 (“[T]ermination of access is no longer a

reasonable requirement for a service provider relying on the liability limitations of section [512]. If the repeat infringer

policy is to remain in the statute, the law should not allow mere allegations of copyright infringement by interested

U.S. Copyright Office Section 512 Report

The Copyright Office recognizes that the statute is not explicit about all aspects of a

reasonably implemented repeat infringer policy and leaves significant discretion to OSPs. The

full text of section 512(i)’s repeat infringer provision states that a section 512 safe harbor will be

available to an eligible OSP only if it “has adopted and reasonably implemented, and informs

subscribers and account holders of the service provider’s system or network of, a policy that

provides for the termination in appropriate circumstances of subscribers and account holders of

the service provider’s system or network who are repeat infringers.”

522

The statute does not

define “adopted” or “reasonably implemented,” nor does it give examples of circumstances that

would warrant terminating an account. The statute also does not quantify “repeat”—two or

twenty or somewhere in between?—or specify whether an “infringer” is only someone whom a

court has adjudged as such.

523

Similarly, the legislative history does not define these aspects of

the repeat infringer provision and, rather, introduces more ambiguity by noting “that there are

different degrees of online copyright infringement, from the inadvertent to the noncommercial, to

the willful and commercial.”

524

Courts have not provided clarity on these issues, articulating different tests to identify

what is required to comply with section 512(i)(1)(A). One test, as articulated by the Ninth Circuit

in CCBill, holds that “a service provider ‘implements’ a policy if it has [1] a working notification

system, [2] a procedure for dealing with DMCA-compliant notifications, and [3] if it does not

actively prevent copyright owners from collecting information needed to issue such

notifications.”

525

A second formulation, also out of the Ninth Circuit, asks whether the OSP “(1)

adopt[ed] a policy that provides for the termination of service access for repeat copyright

parties to trigger such termination.”); see also Copia Institute Initial Comments at 13; EFF Initial Comments at 17; ICC

Initial Comments at 6.

522

17 U.S.C. § 512(i)(1)(A).

523

For a discussion of the difficulty in determining the precise meaning of “infringer,” see generally 4 NIMMER ON

adjudicated infringer or a user for whom the service provider has actual knowledge of infringement, the Office does

not reach the same conclusion. Adding the adjective “repeat” to infringer implies that, under Prof. Nimmer’s theory, a

rightsholder must go to court multiple times and obtain multiple judgments of infringement against a particular user

before they could be considered a repeat infringer whose account should be terminated, absent actual knowledge by

the OSP (in which case, failure to act would displace them from the safe harbor regardless of the details of their repeat

infringer policy). Such a requirement seems wholly out of step with a system explicitly premised on a non-judicial

resolution of infringement claims. And, as the Fourth Circuit noted in Cox, nowhere else in the Copyright Act is

“infringer” used to refer only to adjudicated infringers. Cox, 881 F.3d at 301. For example, section 411 states that a

upon the infringer.” 17 U.S.C. § 411(c). Cf. 4 NIMMER ON COPYRIGHT § 12B.09[A][1] (2019) (discussing section 512(h),

stating that “[t]o facilitate the search for the infringer, Section 512 empowers copyright owners” to request their identity)

(emphasis added); 3 NIMMER ON COPYRIGHT § 12.04[A][3][a] (2019) (discussing third party liability for actions that “aid

the primary infringer,” and noting that courts allow liability in such cases because of “the difficulty then faced . . . in

bringing to account fly-by-night record pirates” and the desire to hold liable those “persons upon whom service might

be obtained and judgments collected.”) (emphasis added).

524

S. REP. NO. 105-190, at 52 (1998).

525

CCBill, 488 F.3d at 1109.

U.S. Copyright Office Section 512 Report

100

infringers in appropriate circumstances; (2) implement[ed] that policy in a reasonable manner;

and (3) inform[ed] its subscribers of the policy.”

526

It is rare for a court to separately address what

constitutes “reasonable circumstances” for termination of a user’s account, instead tending to

collapse its analysis of this element with either the “adopted a policy” requirement or the

“reasonably implemented” requirement.

While there is much confusion surrounding the requirements under section 512(i)(1)(A),

the statute and legislative history are far from silent and may provide some guidelines for

interpretation. The statute sets out some clear high-level criteria, and the legislative history

provides important context that helps interpret the repeat infringer provision. In this section, we

address the three most contentious aspects of the provision: (1) defining what Congress meant by

“repeat infringer,” (2) addressing the question of what it means to adopt a repeat infringer policy

that requires termination in appropriate circumstances (“adoption”), and (3) establishing the

minimum requirements for “reasonable implementation” (“implementation”).

527

i. “Repeat Infringer”

Courts interpreting the meaning of “repeat infringer” within section 512(i)(1)(A) largely

have given OSPs discretion to define the term themselves. For example, in Corbis Corp. v.

Amazon.com, Inc., the court found that the OSP need not publicly specify what constitutes a repeat

infringer because section 512(i) uses “open-ended” language that evinced Congress’ intent to

“leave the policy requirements, and the subsequent obligations of the service providers, loosely

defined.”

528

As a result, OSPs have not been obligated to decide “ex ante[] the specific types of

conduct that will merit restricting access to its services.”

529

Furthermore, in Veoh II, the district

court found that an OSP did not violate section 512(i) by declining to terminate users’ accounts

after receiving a single takedown notice detailing multiple infringements, instead only

526

Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir. 2004). These requirements, when mentioned in case law of various

circuits, have been referred to as the “Ellison prongs” and are subject to relatively little variation. See, e.g., Wolk v. Kodak

Imaging Network, Inc., 840 F. Supp. 2d 724, 744 (S.D.N.Y. 2012), aff'd sub nom., Wolk v. Photobucket.com, Inc., 569 F. App’x

51 (2d Cir. 2014); Corbis Corp., 351 F. Supp. 2d at 1100; Hempton v. Pond5, Inc., No. 3:15-CV-05696, 2016 WL 6217113, at *4

(W.D. Wash. Oct. 25, 2016). Of the two tests, the Office finds the Ellison prongs to be closer to what is needed to fully

evaluate compliance with the repeat infringer policy requirement.

527

Study participants do not separately address the requirement to “inform[] subscribers and account holders of the

service provider’s system or network” of the repeat infringer policy, instead addressing it as part of a larger discussion

of “adopts” and “reasonably implements.” Specifically, participants frequently refer to Ventura Content, Ltd. v.

Motherless, Inc., in which the court (again, the Ninth Circuit) found that it is not necessary for an OSP to inform users of

the contents of such a policy, so long as they inform users that such a policy exists. See infra section VI.A.1.b.ii.

528

Corbis Corp., 351 F. Supp. 2d. at 1100–01.

529

Corbis Corp., 351 F. Supp. 2d at 1101. See also Hempton v. Pond5, Inc., No. 3:15-CV-05696, 2016 WL 6217113, at *6–*7

(W.D. Wash. Oct. 25, 2016) (finding that, despite the OSP’s lack of a specific repeat infringer policy, it was sufficient that

“[Defendant’s] agreements repeatedly exhort against uploading infringing material and warn that a user’s access to the

website may be terminated at [Defendant’s] sole prerogative,” stating that the open-ended language of section 512 and

legislative history allow for less specificity) (additions in the original) (citing Corbis Corp., 351 F. Supp. 2d at 1100–01).

U.S. Copyright Office Section 512 Report

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terminating those accounts after receipt of a second notice.

530

The court cited Corbis Corp. for the

proposition that OSPs have discretion to define “repeat infringer.”

531

The court further limited

what constituted “infringement” to actions detailed in notices received from rightsholders, while

allowing the OSP to ignore any infringement flags that resulted from the OSP’s own filtering

system.

532

More recently, the district court in Cox gave slightly more specific guidance to OSPs by

holding that the infringement must happen “repeatedly and flagrantly” or in a “blatant”

manner.

533

In reviewing the district court’s decision in Cox, the Fourth Circuit did not question

whether OSPs had discretion to define “repeat infringer,” though it appeared to drop “flagrantly”

and “blatant” from the district court’s standard.

534

The Second Circuit, in EMI Christian Music

Group, Inc. v. MP3tunes, LLC, provided a more specific, although still somewhat ambiguous,

definition for “repeat infringer.” Citing the Oxford English Dictionary and Black’s Law

Dictionary, the court held that “repeat” meant “a person who does something . . . again or

repeatedly,” while an infringer signified “[s]omeone who interferes with one of the exclusive

rights of a . . . copyright.”

535

The court concluded that, for the purposes of that case, “all it took to

be a ‘repeat infringer’ was to repeatedly sideload copyrighted material for personal use.”

536

further specification was given. While the Second Circuit specifically stressed that the user need

not be aware that its activities constitute infringement to be considered an infringer,

537

potentially

broadening the definition of repeat infringer in the copyright owner’s favor, the court’s definition

failed to clarify a standard for rightsholders and OSPs for the boundaries of an acceptable repeat

infringer policy.

Leaving such discretion to OSPs has resulted in a malleable definition of repeat infringer

that not only has allowed each OSP to narrow or broaden its application, but also has made it

harder for copyright owners to determine ex ante who will qualify as a repeat infringer, as the

530

See Veoh II, 665 F. Supp. 2d at 1118.

531

See id. at 1118 (citing Corbis Corp., 351 F. Supp. 2d at 1100–01).

532

Veoh II, 665 F. Supp. 2d at 1118.

533

See BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 149 F. Supp. 3d 634, 654–55 (E.D. Va. 2015), aff’d in part, rev’d in

part, 881 F.3d 293 (4th Cir. 2018).

534

See Cox, 881 F.3d at 302–03.

535

EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79, 89 (2d Cir. 2016), cert. denied sub nom., Robertson v. EMI

Christian Music Grp., Inc., 138 S. Ct. 43 (2017).

536

Id. at 89. “Sideloading” involves using a free plug-in provided by defendants that enabled users to download free

songs they found on the internet directly to their MP3tunes lockers. Id. at 86.

537

See id. at 90 (“In other words, the legislative history of the DMCA indicates that a ‘repeat infringer’ does not need to

know of the infringing nature of its online activities. Finally, none of our sister circuits has adopted the District Court’s

definition of ‘repeat infringer’ to include only those who willfully infringe copyrights. To the contrary, the Seventh

Circuit has suggested that the term covers users of file-sharing services who are ‘ignorant or more commonly

disdainful of copyright.’”) (citations omitted).

U.S. Copyright Office Section 512 Report

102

standard varies from OSP to OSP. Such discretion, however, appears to track congressional

intent. The legislative history regarding the repeat infringer provision is not extensive. But in

explaining the purpose behind the provision, the Senate Report mentions that “there are different

degrees of on-line copyright infringement, from the inadvertent to the noncommercial, to the

willful and commercial,” without going into detail about what level of infringement OSPs should

be concerned with under section 512(i).

538

This suggests that an OSP must apply its policy on a

case-by-case basis, and that the standard for a repeat infringer policy might depend on the type of

infringement that occurs and, by extension, the type of OSP (big or small, commercial or non-

commercial, etc.). Moreover, such discretion serves the purpose of supporting the diversity of the

online ecosystem. As will be discussed in more depth in sub-parts (ii) and (iii), section 512(i) does

not dictate that all OSPs adopt a uniform approach; the nature of the OSP can be a key component

of the context that influences an OSP’s repeat infringer policy.

Another aspect of the “repeat infringer” definition upon which stakeholders disagree is

whether the term “repeat infringers” in section 512(i) is limited to adjudicated infringers. In Cox,

the Fourth Circuit rejected a definition that relied upon an adjudication of infringement.

539

Specifically, the court noted that another provision, section 512(g), refers to activity “ultimately

determined to be infringing,” and concluded from that language that “Congress knew how to

expressly refer to adjudicated infringement, but did not do so in the repeat infringer provision.”

540

The court reasoned that the use of broader language in section 512(i) indicated that Congress did

not intend for the term “infringer” to refer only to adjudicated repeat infringers. The court found

that this was further supported by the legislative history:

Both the House Commerce and Senate Judiciary Committee Reports explained that “those

who repeatedly or flagrantly abuse their access to the Internet through disrespect for the

intellectual property rights of others should know that there is a realistic threat of losing

that access.” H.R. Rep. No. 105-551, pt. 2, at 61 (1998); S. Rep. No. 105-190, at 52 (1998).

This passage makes clear that if persons “abuse their access to the Internet through

disrespect for the intellectual property rights of others”—that is, if they infringe

copyrights—they should face a “realistic threat of losing” their internet access. The

passage does not suggest that they should risk losing internet access only once they have

been sued in court and found liable for multiple instances of infringement. Indeed, the

risk of losing one’s internet access would hardly constitute a “realistic threat” capable of

deterring infringement if that punishment applied only to those already subject to civil

penalties and legal fees as adjudicated infringers.

541

538

S. REP. NO. 105-190, at 52 (1998); see also H.R. REP. NO. 105-551, pt. 2, at 61 (1998).

539

Cox, 881 F.3d at 302–03.

540

Id. at 302.

541

Id.

U.S. Copyright Office Section 512 Report

103

The court went on to discuss how other courts have interpreted “repeat infringer,” noting that

only one circuit had articulated a definition.

542

The court then quoted the Second Circuit’s

definition of a repeat infringer as “someone who interferes with one of the exclusive rights of a

543

The Fourth Circuit also noted that both the Seventh Circuit

and the Ninth Circuit had discussed evidence of whether an OSP had responded appropriately to

“repeat infringers” without any mention of “adjudicated infringers.”

544

The court thus found no

support in the case law for the proposition that a repeat infringer must be an adjudicated repeat

infringer, noting that “Cox does not cite a single case adopting its contrary view that only

adjudicated infringers can be ‘repeat infringers’ for purposes of the DMCA.”

545

Since then, no

courts have adopted an adjudication requirement.

On this point, the Office reads the statute and the legislative history to support a finding

that Congress did not intend for “repeat infringer” to mean “repeat adjudicated infringer,” in

alignment with Congress’ desire for section 512(i) to serve as a deterrent.

546

If only those

infringers who had repeatedly been adjudged by a court to be liable for copyright infringement—

and thereby were already potentially liable for monetary damages—had to worry about having

their access to an OSPs’ facilities terminated, it is unlikely that such a threat would serve as a

deterrent where monetary damages already had not. Further, a requirement that a rightsholder

seek (multiple) court judgments against a particular user appears to be at odds with a system

designed to be extra-judicial and expeditious. While any interpretation of section 512(i) must give

OSPs some discretion to define “repeat infringer” in a manner that makes sense given their

service and user base, any definition must be consistent with the statutory criteria that repeat

infringer means repeat alleged infringer, not repeat adjudicated infringer.

ii. Adoption of a Policy Requiring Termination in Appropriate Circumstances

To understand the difference between the requirement to adopt a policy and the

requirement to reasonably implement it, it helps to think of them as the difference between what

OSPs say they’re going to do, and what OSPs actually do. Thus, to determine that an OSP has

adopted a policy that complies with the requirements of section 512(i)(1)(A), one needs to ask two

questions: (i) did it actually adopt a policy, and (2) does the policy require termination of users’

accounts under reasonable circumstances? The first question is largely one of fact—does a policy

542

Id. (citing EMI Christian Music, 844 F.3d at 89).

543

Cox, 881 F.3d at 302.

544

See id. at 302–03 (citing Ellison, 357 F.3d at 1080; In re Aimster, 334 F.3d at 655).

545

Cox, 881 F.3d at 302–03.

546

See id.; S. REP. NO. 105-190, at 52 (1998).

U.S. Copyright Office Section 512 Report

104

exist?

547

The second question looks to the contents of the policy—does it require termination of

users’ accounts, and does it do so under appropriate circumstances?

The standard for when “appropriate circumstances” exist for termination of subscribers or

account holders remains unclear. As noted above, courts have not articulated a separate standard

for “appropriate circumstances,” instead collapsing it with the analysis of either adoption of a

policy or implementation of it.

548

Further, courts emphasize different factors to evaluate what the

statute means by “appropriate circumstances.” The district court in Perfect 10, Inc. v. Cybernet

Ventures, Inc. came close to articulating a standard by stating that “appropriate circumstances” for

termination are “at a minimum, instances where a service provider is given sufficient evidence to

create actual knowledge of blatant, repeat infringement by particular users, particularly

infringement of a willful and commercial nature.”

549

The absence of a uniform standard has allowed the courts freedom to focus on what they

consider to be the unique facts of the case, generally finding that “appropriate circumstances”

only exist when a user or the OSP engages in rather egregious practices. The court in Capitol

Records, LLC v. Escape Media Group, Inc., for example, interpreted “appropriate circumstances” in

the particular context of the defendant’s practices in addressing the number of repeat

infringers.

550

Specifically, the court pointed to “hundreds or thousands” of infringers who had

been the subject of infringement notices without subsequent account termination, as well as the

OSP’s “DMCA Lite” procedure that institutionalized ignoring a notice if it was deemed defective

in some way.

551

(On the latter point, the court found the procedure to be insincerely applied

because, of the notifications the OSP received during a two-year period, it classified more than 90

percent as defective.) Similarly, the Fourth Circuit found that a “thirteen strikes” policy, along

with the automatic reactivation of the accounts of terminated users, did not constitute termination

in appropriate circumstances.

552

Recently, in Ventura Content, Ltd. v. Motherless, Inc., the Ninth Circuit took a similar

approach, but ended up at the opposite conclusion, stating that an OSP may consider a number of

factors when determining the existence of appropriate circumstances, “including the number of

complaints arising from the user’s uploads, the amount of infringing content in the complaint [the

OSP] received, and whether [the OSP] thinks the user had maliciously or intentionally uploaded

547

As discussed below, this is sometimes more difficult to determine than one would expect. When the details of a

policy exist solely in the head of the OSP’s operator, it becomes difficult to objectively determine both that a policy

exists and that the policy provides for termination in reasonable circumstances.

548

See, e.g., Cox, 881 F.3d at 303.

549

Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F. Supp. 2d 1146, 1177 (C.D. Cal. 2002) (“Cybernet”).

550

Escape Media Grp., No. 12-CV-6646, 2015 WL 1402049, at *12–*13 (S.D.N.Y. Mar. 25, 2015).

551

Id.

552

Cox, 881 F.3d at 303–04.

U.S. Copyright Office Section 512 Report

105

infringing content.”

553

In Veoh II, the district court came to a similar conclusion, finding that

termination of a user’s account only after continued infringements following a warning letter was

sufficient, stating that it “achieve[d] the provision’s purpose of deterring infringement.”

554

The

court likewise found that the OSP did not need to terminate users after multiple infringements

were brought to its attention by its digital filtering technology (Audible Magic) because

“[defendant] has no way of verifying the accuracy of Audible Magic’s database, and even if it did,

it would be unreasonable to place that burden on [defendant].”

555

The courts have interpreted section 512(i)(1)(A) as allowing OSPs to adopt a somewhat

casual approach to “inform[ing] subscribers and account holders . . . of[] a [repeat infringer

policy].”

556

In Motherless, the Ninth Circuit found that the defendant had adopted and informed

its users of a repeat infringement policy by including in its Terms of Use a “‘partial list of content

that is illegal or prohibited,’ such as child pornography, bestiality, and copyright-infringing

material” and “prohibit[ing] posting copyrighted material without the prior written consent of

the copyright owner,” even though the details of the what activities would result in termination

were not posted on the site, and in fact were not written down anywhere.

557

The courts have generally reached a conclusion regarding what constitutes reasonable

circumstances for termination based not on what the users do, but on whether the court believes

that the OSP was reasonable in adopting its standard. Thus, failure to terminate an account after

receipt of a single notice can constitute both failure to terminate in appropriate circumstances,

558

and an acceptable decision that does not violate the OSP’s obligation to terminate in appropriate

circumstances.

559

The Office agrees that OSPs need some level of discretion for determining what

constitutes appropriate circumstances for termination of their users; an educational board whose

young users sometimes inadvertently upload infringing content does not warrant adoption of a

strict “two strikes and you’re out” policy in the way that a website that is geared to distributing

audio files might. Similarly, the requirement that a user be a “repeat infringer” certainly cannot

mean that an OSP must terminate a user after receipt of a single notice that identifies only a single

instance of infringement. However, the net result of these opinions has been that OSPs have

gained so much leeway identifying what circumstances might be reasonable that some OSPs have

chosen to adopt policies that have very little deterrent effect.

553

Ventura Content, Ltd. v. Motherless, Inc., 885 F.3d 597, 617–18 (9th Cir. 2018), cert. denied, 139 S. Ct. 419 (2018)

(“Motherless”).

554

Veoh II, 665 F. Supp. 2d at 1116.

555

Id. at 1118.

556

17 U.S.C. § 512(i)(1)(A).

557

Motherless, 885 F.3d at 601, 615–16.

558

See Escape Media Grp., 2015 WL 1402049, at *12–*13.

559

See Veoh II, 665 F. Supp. 2d at 1116.

U.S. Copyright Office Section 512 Report

106

In addition, the Office takes issue with some of the particulars of the decisions that courts

have issued in such cases. For example, by ignoring internal infringement flags and only acting

upon formal notices from rightsholders, the OSP in Veoh II allowed a significant amount of

activity to continue that would rightly support account termination.

560

The Office further

questions an outcome that allows an OSP to “adopt” an unwritten policy, requiring only that the

OSP communicate to its users that such a repeat infringer policy exists, but not the terms of the

repeat infringer policy. Such a reading is difficult to reconcile when viewed in a larger context,

and does not align with Congress’ intent for the repeat infringer provision to serve as a deterrent

to online infringement. What benefit is it to users if they know only that a policy exists, but are

not informed of the code of conduct by which they are expected to govern themselves? If

subscribers do not know the circumstances under which their account access will be terminated,

from their point of view the operation of that policy becomes a black box, with only a vague

connection between their conduct and termination of their service. Without a clear statement

from the OSP that X conduct will result in Y action, users are thus left to guess as to what conduct

the OSP is seeking to discourage, which undermines any deterrent effect. Similarly, what sense

would it make for Congress to condition eligibility for the safe harbors on adoption of a policy,

the existence of which, because it is only in the mind of the OSP, can neither be proved nor

disproved?

iii. Reasonable Implementation

There have been several cases in which courts have evaluated what qualifies as a

“reasonably implemented” repeat infringer policy. Until recently, most such policies, no matter

how loosely applied, have qualified. For example, in Corbis Corp., Amazon allowed a user selling

goods through the Amazon marketplace to repeatedly create new accounts after termination for

infringement.

561

To determine whether Amazon’s repeat infringer policy was reasonably

implemented, the district court asked “whether the service provider adopted a procedure for

receiving complaints and conveying those complaints to users,” and, if so, “whether the service

provider nonetheless still tolerates flagrant or blatant copyright infringement by its users.”

562

The

court held that an infringer reappearing “under a different user name and identity” did not, on its

own, “create a legitimate question of fact” as to whether Amazon had reasonably implemented its

repeat infringer policy.

563

The court concluded that Amazon had reasonably implemented its

560

At a minimum, when an OSP’s filtering technology repeatedly flags the same user for infringement, those users

could (and likely should) be referred for human review. That would be consistent with section 512(m), which only says

only that OSPs do not have an affirmative duty to “monitor[] its service or affirmatively seek[] facts indicating

infringing activity” or to access material when to do so would violate another law, such as the Electronic

Communications Privacy Act, but does not say that OSPs may simply ignore information of potential repeated

infringement on their system once obtained.

561

See Corbis Corp., 351 F. Supp. 2d at 1103–04.

562

Id. at 1102.

563

Id. at 1104.

U.S. Copyright Office Section 512 Report

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policy and granted Amazon’s motion for summary judgment.

564

The court in Corbis Corp. set a

high bar for copyright owners to clear in challenging OSP implementation of a repeat infringer

policy: it is not enough to show that the OSP allowed a repeat infringer to repeatedly open new

accounts; rather, the copyright owner needs to demonstrate that the OSP “could have used

another, more effective and reasonable, method for preventing disingenuous users from re-

accessing” their service.

565

Courts have repeatedly held that reasonable implementation does not require perfect

implementation.

566

In other words, mistakes may be made, but such mistakes are not necessarily

fatal to the OSP’s safe harbor eligibility. For example, the Ninth Circuit in Motherless, while

acknowledging that a repeat infringer policy must actually result in the termination of the

accounts of repeat infringers, nonetheless allowed the OSP significant discretion in implementing

it. The Motherless court allowed the OSP to claim reasonable implementation of an unwritten

repeat infringer policy that was followed in an “unsystematic and casual” manner by the OSP’s

sole operator.

567

The court acknowledged that an unwritten policy that is unsystematically

applied may generate doubt about whether it has been reasonably implemented, “[b]ut,” the

court said, “doubt is not evidence.”

568

The court then pointed to the fact that between 1,320 and

1,980 accounts had been terminated as evidence that the policy had been reasonably

implemented.

569

A dissenting opinion, on the other hand, criticized the majority for “rel[ying] on

‘the paucity of proven failures to terminate’ as evidence” when “[t]he missing link is how many

repeat infringers slipped through the massive cracks in the Motherless/Lange casual monitoring

system. And, as the majority concedes, there is evidence in the record that repeat infringers

slipped through these cracks.”

570

The dissent concluded that, at a minimum, it could not be

564

Id. at 1103–04.

565

Id. at 1103–04.

566

See Motherless, 885 F.3d at 618 (“Eligibility for the safe harbor is not lost just because some repeat infringers may have

slipped through the provider’s net for screening them out and terminating their access.”); accord CCBill, 488 F.3d at 1110

(holding that an OSP’s repeat infringer policy was reasonably implemented even though its DMCA log of infringers

was missing “a single page from [plaintiffs’] ‘DMCA Log’ . . . with some empty fields in the spreadsheet column

labeled ‘Webmasters [sic] Name’”); Corbis Corp., 351 F. Supp. 2d at 1103 (“An infringement policy need not be perfect; it

need only be reasonably implemented.”).

567

Motherless, 885 F.3d at 619.

568

Id. The Ninth Circuit in Motherless appears to place the burden of proof regarding reasonable implementation of a

repeat infringer policy on the plaintiff, despite having previously found that the burden of proof for asserting the

section 512 safe harbors lies with the OSP. See Fung, 710 F.3d at 1039. Placing this burden of proof on the rightsholder

is inconsistent with the wording of the statute, which makes clear that the safe harbors are an affirmative defense and

that adoption and reasonable implementation of a repeat infringer policy is a “[c]ondition[] for eligibility.” 17 U.S.C. §

512(i). Cf. Cox, 881 F.3d at 305 (noting that “[defendant] bears the burden of proof on the DMCA safe harbor defense;

thus, [defendant] had to point to evidence showing that it reasonably implemented a repeat infringer policy”); Grande

Commc'ns, 384 F. Supp. 3d and 754. See also supra n.443.

569

Motherless, 885 F.3d at 618.

570

Id. at 621–22 (Rawlinson, J., dissenting).

U.S. Copyright Office Section 512 Report

108

accepted that “a ‘policy’ that is unwrittten, uncommunicated, and often unimplemented” is

reasonably implemented as a matter of law.

571

Generally, to find that a policy has not been reasonably implemented, courts have

required a copyright owner to demonstrate (i) that the OSP encouraged infringement or that the

OSP’s executives engaged in infringement that the OSP ignored;

572

(ii) that the OSP failed to

maintain a system for receiving and responding to infringement notices, letting them “fall into a

vacuum and to go unheeded”;

573

or (iii) that the OSP did not implement a repeat infringer policy

at all.

574

For example, in Cox, the Fourth Circuit found that an OSP has not reasonably

implemented a repeat infringer policy when it “fails to enforce the terms of its policy in any

meaningful fashion.”

575

In another case, Grande Communications, music companies sued a mere

conduit ISP for not terminating the accounts of users whose activity had been the subject of

multiple notices.

576

The court concluded that the ISP’s “utter failure to terminate any customers at

all over a six-and-a-half-year period despite receiving over a million infringement notices and

tracking thousands of customers as repeat infringers demonstrates that Grande

[Communications] ‘made every effort to avoid reasonably implementing [its] policy’ and ‘very

clearly determined not to terminate subscribers who in fact repeatedly violated the policy.’”

577

571

Id. at 622 (Rawlinson, J. dissenting).

572

The Seventh Circuit in In re Aimster Copyright Litigation affirmed the district court’s determination that Aimster did

not “reasonably implement[]” its repeat infringer policy because, despite having such a policy, Aimster “invited”

infringement. 334 F.3d 643, 655 (7th Cir. 2003); see also In re Aimster Copyright Litig., 252 F. Supp. 2d 634, 659 (N.D. Ill.

2002) (“Adopting a repeat infringer policy and then purposely eviscerating any hope that such a policy could ever be

carried out is not an ‘implementation’ as required by § 512(i).”). In EMI Christian Music, the Second Circuit found that a

reasonable jury might find that MP3tunes did not reasonably implement its repeat infringer policy because, in part,

MP3tunes executives were encouraged to, and, in fact, did, engage in illegal downloading about which MP3tunes

presumably knew but ignored. See EMI Christian Music, 844 F.3d at 88–90 (2d Cir. 2016).

573

Ellison v. Robertson, 357 F.3d 1072, 1080 (9th Cir. 2004). In Ellison, the Ninth Circuit determined that AOL’s

implementation of its repeat infringer policy was lacking because AOL changed its infringement notification email

address in the fall of 1999, but waited until April 2000 before updating its DMCA takedown contact info with the

address. Id.; see also Disney Enters., Inc. v. Hotfile Corp., No. 11-20427-CIV, 2013 WL 6336286, at *21–*22 (S.D. Fla. Sept.

20, 2013) (holding that the OSP did not reasonably implement a repeat infringer policy because, while it did create a

policy communicated to users, it ignored any notices of infringement).

574

See Escape Media Grp., 2015 WL 1402049, at *5–*13 (holding that threatening to terminate access is not sufficient and

that the OSP’s decision to deprive infringers of uploading privileges after a single strike, instead of terminating their

accounts after multiple strikes, demonstrated that the OSP’s repeat infringer policy was not reasonably implemented);

see also EMI Christian Music, 844 F.3d at 90–91 (holding that a reasonable jury might find MP3tunes’ repeat infringer

policy to be unreasonably implemented in part because MP3tunes failed to keep track of repeat infringers because it

“did not even try to connect known infringing activity of which it became aware through takedown notices to users

who repeatedly [uploaded] files and created links,” despite the ability to do so).

575

Cox, 881 F.3d at 303.

576

Grande Commc’ns, 384 F. Supp. 3d at 751–52.

577

Id. at 755 (quoting Cox, 881 F.3d at 303).

U.S. Copyright Office Section 512 Report

109

The Office agrees that OSPs need latitude to adopt and implement repeat infringer

policies that will serve their users; however, we note that Congress intended for OSP’s repeat

infringer policies to serve as an important deterrent for infringing activity, by ultimately

terminating the accounts or access of repeat infringers.

578

The Office is of the opinion that such

deterrence has been hampered by the courts’ overly lenient application of section 512(i)(1)(A). To

inhibit the types of activities that Congress sought to place outside of the section 512 safe harbors,

enforcement of the repeat infringer requirement cannot be limited only to the most extreme

failures.

579

To be clear, the Office agrees that “reasonable” does not (and should not) mean “perfect.”

But the Office believes that, as currently interpreted, the repeat infringer requirement fails to

address OSP actions that do not comport with the obligations that Congress intended to impose

in exchange for the benefit of the safe harbors. By excusing even significant shortcomings in the

implementation of a repeat infringer policy, the deterrent value of section 512(i) has been

diminished. Further, allowing an OSP to claim reasonable implementation based on the

“unsystematic and casual” administration of an unwritten repeat infringer policy creates an

unworkable situation for rightsholders. If evaluating whether an OSP follows its own policy is

critical to a court determining whether implementation was reasonable, and the OSP records

neither the terms of its policy nor the claims of infringement made against users, by what metric

can the court accurately evaluate whether the OSP reasonably implemented the policy?

580

For this

reason, additional congressional clarity may be necessary.

* * *

Overall, the bar for demonstrating reasonable implementation and appropriate

circumstances has been set so low for OSPs as to be largely impractical. Only recently have

rulings started to raise the bar a little, but the overall situation is troubling. For this reason, the

Office recommends that Congress closely monitor how courts interpret the entire repeat infringer

provision going forward, and notes that Congress may wish to consider legislation if the case law

continues to place a high burden on rightsholders.

The Office wishes to raise one note of caution, however. Study participants point out,

rightly, that colleges and universities which provide internet access and network services to the

campus community may require a different approach.

581

The network access that universities

578

See S. REP. NO. 105-190, at 52 (1998); H.R. REP. NO. 105-551, pt. 2, at 61 (1998).

579

See, e.g., Cox, 881 F.3d 293; Ellison, 357 F.3d 1072; Grande Commc’ns, 384 F. Supp. 3d 743.

580

This was a core concern of the dissent in Motherless. 885 F.3d at 621–22 (Rawlinson, J., dissenting).

581

This proposal is consistent with the legislative history of section 512. See S. REP. NO. 105-190, at 20 (1998) (“What is

more, nothing in this Act should be read to preclude a Federal court from taking into account the special circumstances

of a non-profit educational institution in applying agency law to determine whether knowledge should be imputed to

such an institution in its capacity as an online service provider.”).

U.S. Copyright Office Section 512 Report

110

provide for college students is used for academic work, career searching and networking, and

personal purposes, such as watching television or listening to music. For those students living in

university-owned housing, it will often be difficult for the student to switch to another network

ISP. Thus, one Study participant describes terminating a student’s access to the university

network as “tantamount to expelling them from the university.”

582

For this reason, a number of

Study participants argue that the standard for adoption of a repeat infringer policy should be

different (and less stringent than that set forth by the Fourth Circuit in Cox) for university ISPs

than for other OSPs, and in particular that colleges and universities should be afforded the

discretion to define “repeat infringer” and determine what qualifies as “appropriate

circumstances” with an eye towards their unique circumstances.

583

Unlike other ISPs, Congress has required higher education institutions to develop written

plans to effectively combat copyright infringement by network users, “including through the use

of a variety of technology-based deterrents” and offering alternatives to P2P distribution of

copyrighted material.

584

In adopting the Higher Education Opportunity Act, Congress noted the

tension between two important facts: one, that college students with access to free, fast

broadband represent a significant percentage of copyright infringers on the internet, and two,

that internet access is particularly important to this class of users.

585

For this reason, the Office

recommends that Congress monitor the effect of Cox on universities providing network access,

particularly in communities where the university may be the only practical broadband provider

for students.

586

c) Safe Harbor Exclusions: Knowledge Requirements and Financial Benefit

In addition to the obligations that OSPs must meet to be eligible for one of the section 512

safe harbors, section 512 also includes limitations that may prevent web hosting and information

location tool OSPs from taking advantage of the safe harbors.

587

First is the requirement that an

OSP must lack both actual knowledge of infringement on its system, and “not be aware of facts or

circumstances from which infringing activity is apparent.” Second is the non-statutory rule that

an OSP may not willfully blind itself to infringement occurring on its system. In the analyses

582

Tr. at 287:9–11 (May 12, 2016) (Peter Midgley, Brigham Young University). See also Tr. at 134:6–9 (Apr. 8, 2019)

(Jonathan Band, LCA) (“[I]f you’re a university student and you don’t have access to the network, you can’t get your

homework. You can’t get your assignments. You can’t take your exam.”).

583

See Tr. at 133:18–134:5 (Apr. 8, 2019) (Jonathan Band, LCA); Tr. at 116:8–19 (Apr. 8, 2019) (Peter Midgley, Brigham

Young University).

584

Higher Education Opportunity Act § 493, 20 U.S.C. § 1094(a)(29) (2008).

585

See H.R. REP. NO. 110-500, pt. 1, at 270–71 (2007).

586

One Study participant argues that Cox was too high of a standard for most mere conduit ISPs, noting that in many

communities there may be only one or two broadband ISPs available. See ACA, Additional Comments Submitted in

Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 11–13 (Feb. 21, 2017).

587

17 U.S.C. §§ 512(c)(1)(A), (d)(1).

U.S. Copyright Office Section 512 Report

111

below, the Office finds that these provisions, as currently interpreted, have contributed to

unbalancing the overall section 512 system.

i. Knowledge Requirements

To qualify for the section 512 safe harbors, web hosts (section 512(c)) and information

location tools (section 512(d)) must both lack “actual knowledge” that material or activity on their

service is infringing and “not [be] aware of facts or circumstances from which infringing activity

is apparent.”

588

If these types of OSPs obtain either actual or red flag knowledge, they must act

“expeditiously” to remove or disable access to infringing material or else risk liability.

589

The

statute sets out specific rules, and the legislative history evinces congressional concern with OSPs

ignoring infringing material or activity.

590

While Congress did not impose an obligation for OSPs

to actively monitor for infringement, the Office believes that Congress’ intent was to set up a

system whereby an OSP must act upon any red flag knowledge or actual knowledge that it

obtains.

591

588

17 U.S.C. §§ 512(c)(1)(A), (d)(1). This second standard is known as having “red flag knowledge.”

589

17 U.S.C. §§ 512(c)(1)(A)(iii), (d)(1)(C).

590

See NII Copyright Protection Act of 1995 (Part 2): Hearings on H.R. 2441 Before the Subcomm. on Courts & Intellectual Prop.

of the H. Comm. on the Judiciary, 104th Cong. 15 (1996) (statement of Rep. Patricia Schroeder, Ranking Member, H.

Subcomm. on Courts & Intellectual Prop.) (“I must also say that I would have to be persuaded of the merits of any

liability changes that would have the effect of providing an incentive for ignorance. I have never been one to provide

incentives for ignorance, so you are going to have to have a real hard sell if you want to incentivize ignorance and say

we are going to reward the failure of a service provider to take reasonable, responsible steps to ensure that subscribers

adhere to copyright law in the use of that service.”).

591

17 U.S.C. §§ 512(c)(1)(A)(iii), (m). Many of the OSPs and user advocacy groups that participated in the Study appear

to interpret section 512(m) as a shield that not only protects OSPs from being subject to an affirmative monitoring

obligation, but also protects them from having any duty to act upon evidence of infringement of which they become

aware, absent receipt of a takedown notice that complies with the requirements of section 512(c)(3) and identifies the

specific location of the specific infringing material. Some courts, including the circuit court in Veoh IV, appear to be

sympathetic to such a reading. See supra section VI.A.1.b.iii. Viewing section 512(m) in the context of the rest of section

512 does not support such a reading, however. Of note, section 512(m) is intended not as a protection for OSPs, but to

protect the privacy of an OSP’s users—the section is entitled “Protection of Privacy,” and section 512(m)(2) states that an

OSP will not have an obligation to access user communications in instances when it has a legal duty not to do so. But

absent such a legal prohibition, section 512(m) does not prohibit an OSP from either monitoring its system or acting

upon evidence of infringement that it gains on its own; instead, it simply provides that an OSP cannot lose its safe

harbor for failing to engage in such monitoring “except to the extent consistent with a standard technical measure

complying with the provisions of subsection (i).” 17 U.S.C. § 512(m) (emphasis added). The existence of some

obligation to take action to investigate further upon obtaining evidence of infringement is entirely consistent with

legislative history. See H.R. REP. NO. 105-551, pt. 1, at 26 (1998) (“[The knowledge standard] shall not be construed to

condition the limitation [on liability] on monitoring a network for infringement or searching out suspicious

information. Once one becomes aware of such information, however, one may have an obligation to check further.”)

(emphasis added).

This is consistent with the rest of section 512, including section 512(c)(1)(A), in which Congress imposed a duty on

hosting providers to “act expeditiously to remove, or disable access to” material if it either has “actual knowledge that

the material or an activity using the material on the system or network is infringing” or becomes “aware of facts or

U.S. Copyright Office Section 512 Report

112

Section 512’s knowledge requirements were a critical part of the balance that Congress

developed between rightsholders and OSPs. The requirements were intended to play a

significant role in whether courts determine that an eligible type of OSP may actually claim the

benefit of a safe harbor for a given alleged infringement. Thus, the way courts interpret the

knowledge requirements has the potential to dramatically shape the availability of the safe

harbors for hosting and information location tool OSPs. And, indeed, a significant amount of

litigation during the past 20-plus years has focused on determining the degree of knowledge or

awareness at which OSPs are obligated to act or else lose their safe harbor.

592

We turn now to

three different issues within the knowledge requirements: the difference between actual

knowledge and red flag knowledge; the willful blindness standard; and the extent to which two

standards specific to section 512(c)-types of OSPs track the common law vicarious liability

standard.

593

circumstances from which infringing activity is apparent.” 17 U.S.C. § 512(c)(1)(A). Notably, the language of section

512(c)(1)(A) is not limited to knowledge or awareness of facts obtained via a takedown notice from a rightsholder or

other third party. Section 512(c)(1)(C) states that an OSP has an obligation to remove infringing content expeditiously

in the event it receives a compliant notice under section 512(c)(3). Sections 512(c)(1)(A) (“knowledge”), (c)(1)(B) (“right

and ability to control”), and (c)(1)(C) (receipt of a compliant takedown notice) are fashioned to be separate analyses, the

occurrence of which will place an OSP outside of the safe harbors. This interpretation is supported by the language of

section 512(c)(3)(B)(i), which provides that a notice that fails to comply with the requirements of section 512(c)(3)(A)

“shall not be considered under paragraph (1)(A) in determining whether a service provider has actual knowledge or is

aware of facts or circumstances from which infringing activity is apparent.” This language anticipates that an OSP

could have either actual or red flag knowledge in the absence of a compliant notice, leading to the conclusion there are

other ways for an OSP to gain knowledge that it is then obligated to act upon. 17 U.S.C. § 512(c)(3)(B)(i) (emphasis

added). These provisions, taken together, support an interpretation that Congress intended OSPs to have an obligation

act upon information regarding infringing activity even in the absence of a takedown notice under some circumstances.

This interpretation is supported by the legislative history of the DMCA. See S. REP. NO. 105-190, at 45 (1998) (“A service

provider wishing to benefit from the limitation on liability under subsection (c) must ‘take down’ or disable access to

infringing material residing on its system or network of which it has actual knowledge or that meets the ‘red flag’ test,

even if the copyright owner or its agent does not notify it of a claimed infringement.”). Thus, reading section 512(m) to

shield OSPs from having any duty to act upon evidence of infringement that they uncover, absent a takedown notice,

would be in tension with the rest of section 512 and the clearly articulated intent of Congress.

592

Indeed, judicial application of section 512’s knowledge standards was a primary focus for rightsholders’ criticism

during the Study. See, e.g., A2IM Music Community Initial Comments at 37 (“As a consequence of [court decisions

interpreting willful blindness under section 512], rather than providing incentives for cooperation, the DMCA has

provided incentives for Internet businesses to turn a blind eye to infringement, or even to build willful blindness into

their business models”); MPAA Initial Comments at 31 (“The currently prevailing Circuit Court interpretations of

‘actual’ and ‘red flag’ knowledge misread the statutory provisions, undermine Congress’s objective for a system of

shared responsibility, encourage willful blindness, and are primarily responsible for the ineffectiveness of the section

512 system today.”).

593

While we note significant issues with courts’ interpretation of the actual knowledge, red flag, and willful blindness

standards below, we caution Congress against ratcheting up the standards too high, to the point that they sweep in

generally conscientious OSPs. To guard against this, Congress may want to consider adding additional factors for

consideration by the courts in making a determination on whether a particular OSP qualifies for one or more of the

section 512 safe harbors, such as an evaluation of the OSP’s intent or the frequency and severity with which the OSP

ignores red flag knowledge in particular. It is important that any obligation is tailored to the intent and activities of the

particular OSP. A personal blog to which users occasionally paste the contents of a newspaper article in the comment

U.S. Copyright Office Section 512 Report

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(a) Actual Knowledge vs. Red Flag Knowledge

Congress did not define “actual knowledge” in section 512, nor did it discuss its scope in

either the House or Senate Reports. But the concept of actual knowledge is well understood to

mean actual—as distinct from red flag or constructive—knowledge. Though OSPs may obtain

actual knowledge via receipt of a takedown notice that substantially complies with statutory

requirements,

594

the legislative history explicitly states that a takedown notice is not a prerequisite

for an OSP to obtain either actual or red flag knowledge—indeed, the House Committee Report

“emphasizes” this point.

595

As Congress recognized, OSPs can obtain actual knowledge in a

number of different ways: by personally using the service and uncovering infringing material or

activity, having a monetizing system repeatedly identify a content match, or receiving an email

that points out infringement of an unreleased work on the site, in the absence of undertaking to

affirmatively monitor the service for infringements.

In the absence of actual knowledge, section 512 holds OSPs to a “red flag” knowledge

standard.

596

The phrase “red flag” does not appear in the statute, but Congress used that phrase

to refer to “facts or circumstances from which infringing activity is apparent.”

597

Congress

intended for this red flag standard to obligate OSPs to remove or disable access to infringing

content for which they learned enough information to indicate a likelihood of infringement—but

short of obtaining actual knowledge.

The House and Senate Reports describe red flag knowledge as knowledge that would

make “infringing activity . . . apparent to a reasonable person operating under the same or similar

circumstances.”

598

The legislative history indicates that red flag knowledge entails an objective,

reasonable-person standard for determining whether the facts or circumstances are enough to

trigger a response, and it uses a subjective standard for determining whether the OSP was aware

of those red flag facts or circumstances.

599

Congress intended for red flag knowledge to carefully

balance the stated policy objective of not placing a burden on OSPs to “monitor its service or

section is not, and should not be treated, the same as a website whose business model is premised on distributing

primarily infringing content.

594

See 17 U.S.C. §§ 512(c)(1)(A)(iii), (c)(1)(C).

595

H.R. REP. NO. 105-551, pt. 2, at 54 (1998); see also S. REP. NO. 105-190, at 45 (1998).

596

17 U.S.C. §§ 512(c)(1)(A)(ii), (d)(1)(B).

597

S. REP. NO. 105-190, at 44 (1998) (“Subsection (c)(1)(A)(ii) can be described as a ‘red flag’ test.”); see also H.R. REP. NO.

105-551, pt. 2, at 53 (1998).

598

S. REP. NO. 105-190, at 44 (1998); see also H.R. REP. NO. 105-551, pt. 2, at 53 (1998).

599

See S. REP. NO. 105-190, at 44 (1998); see also H.R. REP. NO. 105-551, pt. 2, at 53 (1998).

U.S. Copyright Office Section 512 Report

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affirmatively seek facts indicating infringing activity” with a requirement that an OSP take action

if it “becomes aware of a ‘red flag’ from which infringing activity is apparent.”

600

Congress expressly stated that actual knowledge or red flag knowledge could be obtained

without receiving a takedown notice.

601

OSPs could obtain red flag knowledge from merely

recognizing infringing content on a site. The Senate and House Reports, in the parlance of late-

‘90s technology, talked specifically about internet directories,

602

saying that a directory provider

would obtain red flag knowledge from viewing a “pirate” site and would then lose its safe harbor

if the directory still linked to that site.

603

Congress said the goal was to exclude from the safe

harbor directories that “refer Internet users to other selected Internet sites where pirate software,

books, movies, and music can be downloaded or transmitted” when infringement “would be

apparent from even a brief and casual viewing.”

604

Congress noted that such sites may signal

their infringing activity with “words such as ‘pirate,’ ‘bootleg,’ or slang terms in their uniform

resource locator (URL) and header information.”

605

The internet directory example is illustrative, and it is applicable to both section 512(c) and

(d) OSPs. If viewing a linked site and finding that it is dedicated to piracy would be red flag

knowledge for a directory provider, it is logical that Congress intended similar indicia to be red

flag knowledge for section 512(c) OSPs regarding their own sites as well. That might be an

upload like “FULL [movie title] part 3” from a user with no affiliation to the studio or the film for

content-hosting sites or links to the Pirate Bay or other dedicated piracy sites for information

location services. It would also seem that, absent counter-notices, repeated takedown notices

alleging infringement by a specific user—or even repeated flags by an OSP’s filtering technology

of a specific user’s uploads or other activity—would likewise provide red flag knowledge.

600

S. REP. NO. 105-190, at 44 (1998); H.R. REP. NO. 105-551, pt. 2, at 53 (1998). See also S. REP. NO. 105-190, at 48 (1998);

H.R. REP. NO. 105-551, pt. 2, at 57 (1998) (discussing section 512(d) and saying that a “service provider would have no

obligation to seek out copyright infringement, but it would not qualify for the safe harbor if it had turned a blind eye to

‘red flags’ of obvious infringement”).

601

See S. REP. NO. 105-190, at 45 (1998); H.R. REP. NO. 105-551, pt. 2, at 54 (1998).

602

The earliest methods for finding things on the web were internet directories, some of which contained only limited,

often manually compiled, information about websites such as the title, URL, and some headers. While a handful of

commercial search engines powered by web crawling technology were released a few years before passage of the

DMCA, one of the most popular search sites at the time was still Yahoo!, which categorized many websites by hand.

See Danny Sullivan, Where are they Now? Search Engines We’ve Known and Loved, SEARCH ENGINE WATCH (Mar. 4, 2003),

https://www.searchenginewatch.com/2003/03/04/where-are-they-now-search-engines-weve-known-loved/; How to

Suggest Your Site, YAHOO! INFORMATION (capture date: June 30, 1998), https://web.archive.org/web/19980630073429/

http://www.yahoo.com/info/suggest/.

603

S. REP. NO. 105-190, at 48 (1998); H.R. REP. NO. 105-551, pt. 2, at 57 (1998).

604

S. REP. NO. 105-190, at 48 (1998); H.R. REP. NO. 105-551, pt. 2, at 58 (1998).

605

S. REP. NO. 105-190, at 48 (1998); H.R. REP. NO. 105-551, pt. 2, at 58 (1998).

U.S. Copyright Office Section 512 Report

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Congress’ stated purpose for the red flag standard was to prevent OSPs from “be[ing]

required to make discriminating judgments about potential copyright infringement” while at the

same time requiring them to act to remove or disable access to infringing content that is

“obviously pirate[d].”

606

What qualifies as red flag knowledge, and how that differs from actual

knowledge, thus has major significance. If the red flag standard is too low, OSPs may not need to

act to disable access or remove infringing content at any point short of developing actual

knowledge; if the standard is too high, it may require OSPs to respond any time they develop

even an inkling that content could be infringing. This single issue may have been the subject of

the most frequent and significant debate between rightsholders and OSPs throughout the Study.

Stakeholders express sharply divergent views on how courts have understood both actual

and red flag knowledge. With respect to actual knowledge, OSPs assert that courts have correctly

required “specific” knowledge of “particular infringing activity” before having an obligation to

remove or disable access to the material.

607

Rightsholders focus on a different issue regarding

actual knowledge, stating that courts have improperly interpreted the actual knowledge standard

by requiring that rightsholders take an affirmative step—i.e., sending a takedown notice—to

trigger it.

608

On red flag knowledge, OSPs and user advocacy groups similarly agree that “the courts

that have narrowly interpreted ‘red flag’ knowledge have been correct.”

609

Some of these

606

S. REP. NO. 105-190, at 49 (1998); H.R. REP. NO. 105-551, pt. 2, at 58 (1998).

607

Amazon Initial Comments at 9 (citations omitted); see also CTA Initial Comments at 5 (“A general awareness or

‘willful blindness’ standard for ‘actual knowledge’ or ‘red flag knowledge’ would place too high a burden on

intermediaries that monitor their services in other ways that are required by law, so become generally aware that some

content travelling or residing by virtue of the service is likely to be infringing.”).

608

See, e.g., MPAA Initial Comments at 34 (“As discussed, the courts effectively limited what will suffice for actual

knowledge to reviewing the contents of a takedown notice from the copyright owner.”). As noted above, the legislative

history of the DMCA explicitly disclaims an affirmative requirement for a rightsholder to send a takedown notice before

enforcing their rights, and leaves open the possibility that an OSP could have actual or red flag knowledge obtained

from other sources in the absence of such notice. See, e.g., S. REP. NO. 105-190, at 45 (1998); H.R. REP NO. 105-551, pt. 2, at

54 (1998) (“[C]opyright owners are not obligated to give notification of claimed infringement in order to enforce their

rights. However, neither actual knowledge nor awareness of a ‘red flag’ may be imputed to an OSP based on information

from a copyright owner or its agent that does not comply with the notification provisions of new subsection (c)(3), . . . the

limitation on liability set forth in new subsection (c) may [still] apply.”) (emphasis added).

609

OTW Initial Comments at 19. See also Amazon Initial Comments at 9 (“Congress developed the actual knowledge

requirement with the intent to limit the liability of service providers and consciously avoid imposing upon them the

burden to police the Internet. Courts have recognized Congress’s intent, and have consistently interpreted Section 512

to fulfill these aims.”) (citations omitted); Center for Democracy & Technology (“CDT”) and the R Street Institute,

Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 17 (Apr. 1, 2016)

(“CDT/R St. Initial Comments”) (“Every website or service that allows user-generated content operating at any scale

knows that some users will inevitably post infringing content. Congress also knew this, which is why it created the

DMCA safe harbor. If such general knowledge disqualified a service provider for the safe harbor, no service provider

allowing users to post their own content would qualify for it.”); Intel Corporation, Comments Submitted in Response to

U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 8 (Apr. 1, 2016) (“This interpretation both makes sense and

distinguishes between the two types of knowledge; it does not render ‘red flag’ knowledge superfluous.”); Internet

U.S. Copyright Office Section 512 Report

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arguments are based upon an interpretation of the interplay between knowledge standards and

section 512(m)’s lack of a duty to monitor.

610

OSPs note that multiple courts have, citing section

512(m), barred any requirement for OSPs to monitor for repeat infringers.

611

They argue that

“shifting the burden away from rightsholders” by mandating monitoring or tracking

requirements would “impair the current incentives for compliance with safe harbor

conditions.”

612

According to OSPs and user advocacy groups, even a standard that requires

following up in limited circumstances requires too much of OSPs because “[e]ven in the case of

specific uses of specific works, service providers are rarely in a position to know whether a use is

licensed, unauthorized, or tolerated because it fits with a marketing strategy.”

613

OSPs reach this conclusion based on their interpretation of the purpose behind section

512: that section 512 exists primarily to ensure that the internet will flourish, and rightsholders

bear the responsibility of identifying infringements for OSPs to takedown.

614

For example, in

public comments filed in the Study, Google states that:

Substantial investments have been made by OSPs and their investors predicated on the

availability of the DMCA safe harbor, and court decisions have appropriately not upset

Association Initial Comments at 25 (“Shifting the burden of identifying infringing content online to service providers

under a generalized, broad knowledge test would unravel the shared responsibilities at the heart of the DMCA and

remove the strong incentives in place for compliance with conditions that combat infringement.”) (citations omitted);

ICC Initial Comments at 5 (“Courts are interpreting these provisions correctly.”).

610

See, e.g., CTA Initial Comments at 5; Tr. at 239:8–12 (May 12, 2016) (Ellen Schrantz, Internet Association) (stating that

“courts understood what Congress understood in 1998, and that’s that for the statute to effectively function well in the

ecosystem that it does, there has to be that specific knowledge in order to square it legally with [section] 512(m)”). But

see supra n.591 and accompanying text.

611

See CTIA Initial Comments at 9–10; Engine et al. Initial Comments at 15 (favorably citing CCBill, that OSPs need not

“affirmatively police its users for evidence of repeat infringement”); see also Bridy & Keller Initial Comments at 41–42

(citing Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132 (N.D. Cal. 2008) for the proposition that section 512(i)

“cannot be read in light of section 512(m) to impose on qualifying ISPs any affirmative duty to monitor their services to

identify repeat infringers.”).

612

Internet Association Initial Comments at 20–21.

613

CCIA Initial Comments at 21 (citation omitted).

614

See, e.g., Tr. at 297:20–22 (May 12, 2016) (Andrew Bridges, Fenwick & West LLP) (stating that the DMCA was about

“stimulat[ing] the growth of the internet, and it was about cooperation in reducing the incidence of infringement”).

Rightsholders, on the other hand, claim that too much emphasis has been put on the growth of the internet. See, e.g., Tr.

at 234:8–14 (May 12, 2016) (Ben Sheffner, MPAA) (“[P]art of the purpose of the DMCA was to provide protection to

good, innocent service providers that acted in good faith to address infringement. The other half is that it was intended

to provide copyright owners with an efficient and an effective way to address online infringement.”); see also UMG

Initial Comments at 13 (“Copyright owners currently shoulder virtually the entire burden of policing the Internet for

infringements of their works, while service providers have been incentivized to turn a blind eye to rampant

infringement occurring on their sites.”).

U.S. Copyright Office Section 512 Report

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those reliance interests by interpreting the knowledge standards in a way that would

swallow the safe harbor and inject legal uncertainty into the Internet economy.

615

Similarly, the Center for Democracy and Technology and the R Street Institute assert that

adopting a red flag knowledge standard that requires less than specific knowledge would

eviscerate the section 512(c) safe harbor and “would destroy the cooperation between

rightsholders and service providers envisaged by the statute.”

616

In contrast, rightsholders assert that red flag knowledge requires less specificity than the

actual knowledge provision, and thus does not require rightsholder identification of every

instance of infringing material before an OSP’s duty is triggered.

617

But rightsholders worry that

courts have effectively removed red flag knowledge from the statute by requiring knowledge of

specific and identifiable infringements (down to the specific URL) pursuant to a takedown notice,

and in doing so have altered the balance Congress sought to achieve.

618

Rightsholders allege that

615

Google Initial Comments at 14.

616

CDT/R St. Initial Comments at 17.

617

See, e.g., AAP Initial Comments at 10 (“[A] notification containing a representative list of works serves as a red flag of

infringement that obligates a service provider to find and remove such infringing material from its site in order to be

eligible for safe harbor protection.”) (citation omitted); Authors Guild Initial Comments at 19 (“The plain language of

the statute does not require that knowledge of infringing material means knowledge of the location of a specific

infringing copy or URL.”).

618

See A2IM Music Community Initial Comments at 35 (“Certain judicial interpretations of ‘red flag’ knowledge[] and

‘willful blindness’ under the DMCA have significantly undermined the effectiveness of Section 512. These decisions

have given rise to a perverse universe where services are incentivized to take efforts to blind themselves to what is

occurring over their services, and to take no action to prevent it. This is precisely the opposite of Congressional intent

to ‘preserve the strong incentives for service providers and copyright owners to detect and deal with copyright

infringements that take place in the digital networked environment.’”) (citation omitted); Copyright Alliance Initial

Comments at 22–24 (“These courts’ interpretation of the red flag standard is so restrictive that it has basically

eliminated the carefully balanced burden allocation that Congress intended . . . . [T]he result is a toothless statute.”); Tr.

at 224:25–225:22 (May 2, 2016) (Troy Dow, Disney) (“I think that the Second and Ninth Circuit were clearly wrong

deciding that you had to have item-specific knowledge that go down to the level of a URL . . . . I think that they clearly

read those provisions of the statute down essentially to nullities and you have a standard now that requires either a

showing of knowledge or a showing that someone actually participated in the infringement or induced the

infringement, which by the way would kick you out of the statute for other reasons, so that again renders those

provisions duplicative.”). Some academic commenters supported rightsholders’ criticism of how knowledge standards

have been applied. See Matthew Barblan et al., Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry at 1 (Apr. 1, 2016) (“Copyright Law Scholars Initial Comments”) (“Judicial interpretations of the

red flag knowledge standard have disrupted the careful balance of responsibilities that Congress sought to create when

it enacted the Digital Millennium Copyright Act. Instead of requiring service providers to take action in the face of red

flags, courts have allowed service providers to ignore even the most crimson of flags. Unfortunately, this case law has

created an unbalanced atmosphere where service providers are not sufficiently incentivized to work together with

13 (“The requirement that a copyright owner show that service providers have red flag knowledge of, or are willfully

blind to, the specific infringements complained of in the suit to deny them safe harbor protection creates a virtually

insurmountable barrier, rendering section 512(c)(1)(A)(ii) essentially moot.”); Tr. at 327:17–328:3 (May 12, 2016) (Devlin

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the courts have conflated actual knowledge and red flag knowledge, rendering the statute’s

inclusion of red flag knowledge superfluous by holding that “evidence that a service provider

knew its site was being used for rampant infringing activity triggered no obligation to act except

where the service provider was provided with actual knowledge of specific infringing content at

specific individual locations (URLs)—i.e., the type of knowledge provided in a takedown

notice.”

619

Public comments submitted by a group of copyright law scholars in the Study make a

point closely related to the rightsholders’ argument above, focusing on the different language

Congress chose for actual and red flag knowledge.

620

They note that the statute’s standard for

actual knowledge is met when the OSP has “knowledge that the material or an activity using the

material on the system or network is infringing”

621

or “knowledge that the material or activity is

infringing,”

622

while the red flag knowledge standard is met when the OSP is “aware of facts or

circumstances from which infringing activity is apparent.”

623

This difference, the copyright law

scholars argue, is crucial to understanding the two standards: while the statute uses a definite

article—“the”—to refer to material or activity that would provide actual knowledge, it drops

“the” to speak more generally about facts or circumstances that would create red flag knowledge.

“In Congress’s view,” the comment concludes, “the critical distinction between the two

knowledge standards was this: Actual knowledge turns on specifics, while red flag knowledge

turns on generalities.”

624

Generally, courts have defined actual knowledge under section 512 as “specific

knowledge of particular infringing activity.”

625

In Veoh IV, the Ninth Circuit said that “the most

Hartline, Center for the Protection of Intellectual Property) (claiming that courts have interpreted red flag knowledge

“the wrong way”).

619

MPAA Initial Comments at 32 (citation omitted). See also Authors Guild Initial Comments at 18–19. Relatedly, the

MPAA notes that, though not a duty to monitor, some courts have “required service providers to track DMCA notices

so that they can identify repeat infringers.” MPAA Initial Comments at 42. The MPAA notes that DMCA notices were

“powerful evidence” of knowledge of infringing activity in Cox, and observed that the court in Escape Media Group

looked to whether an OSP “keep[s] adequate records of infringement” and found a policy to be implemented

inadequately where the OSP kept no records of repeat infringers. Id. at 42–43. The Office notes that such a requirement

is also in tension with section 512(c)(3)(A)(ii)’s provision that a rightsholder can provide a notice that includes a

“representative list” of its works that are being infringed on the website. See infra section VI.A.2.b.

620

See Copyright Law Scholars Initial Comments at 3–5.

621

17 U.S.C. § 512(c)(1)(A)(i).

622

17 U.S.C. § 512(d)(1)(A).

623

17 U.S.C. §§ 512(c)(1)(A)(ii), (d)(1)(B).

624

625

Veoh IV, 718 F.3d at 1021 (”Requiring specific knowledge of particular infringing activity makes good sense in the

context of the DMCA, which Congress enacted to foster cooperation among copyright holders and service providers in

dealing with infringement on the Internet.”) (citation omitted); see also Viacom Int’l, Inc. v. YouTube, Inc., 676 F.3d 19, 30

(2d Cir. 2012).

U.S. Copyright Office Section 512 Report

119

powerful evidence of a service provider’s knowledge [is] actual notice of infringement from the

626

Both the Second and Ninth Circuits have applied a subjective test to actual

knowledge. In other words, it is not enough that the OSP obtain specific knowledge of a

particular activity that is infringing—the provider also must believe that the activity is, in fact,

infringing.

627

Courts have opined on the types of information that do not give rise to actual knowledge.

Courts have found that “merely hosting a category of copyrightable content, such as music

videos, with the general knowledge that one’s services could be used to share infringing material,

is insufficient to meet the actual knowledge requirement.”

628

In reaching this conclusion, courts

have pointed to notable cases related to contributory copyright infringement, such as Betamax

629

and Napster,

630

to find that copyright law does not presume that an OSP has actual knowledge

based upon the mere fact that its service can be a platform for infringement.

Regarding red flag knowledge, courts have said it is not enough, for example, for an OSP

to have a “general knowledge that one’s services could be used to share unauthorized copies of

copyrighted material.”

631

Even if a user promotes its content as stolen or uses a URL signaling

illicit content (e.g., “illegal.net”

632

), the Ninth Circuit said these are not red flags because

“describing photographs as ‘illegal’ or ‘stolen’ may be an attempt to increase their salacious

appeal, rather than an admission that the photographs are actually illegal or stolen.”

633

Nor,

according to the Second and Ninth Circuits, does red flag knowledge follow from generalized

knowledge of facts and circumstances from which the infringing nature of the activity should be

obvious—the courts have said that both red flag and actual knowledge require specific knowledge

of a particular infringement.

634

Interestingly though, the circuit court in Veoh IV said that although

a notice alleging infringement from someone other than the copyright owner would not be proof

of actual knowledge—because the OSP “would have no assurance that a third party who does not

626

Veoh IV, 718 F.3d at 1020 (citation omitted).

627

See Viacom, 676 F.3d at 31; Veoh IV, 718 F.3d at 1025–26.

628

Veoh IV, 718 F.3d at 1022.

629

Betamax, 464 U.S. 417 (1984).

630

Napster, 239 F.3d 1004 (9th Cir. 2001).

631

Veoh IV, 718 F. 3d at 1021.

632

CCBill, 488 F.3d at 1114.

633

CCBill, 488 F.3d at 1114. Compare S. REP. NO. 105-190, at 48 (1998) (“Such pirate directories refer Internet users to sites

that are obviously infringing because they typically use words such as ‘pirate,’ ‘bootleg,’ or slang terms in their uniform

resource locator (URL) and header information to make their illegal purpose obvious to the pirate directories and other

Internet users. Because the infringing nature of such sites would be apparent from even a brief and casual viewing,

safe harbor status for a provider that views such a site and then establishes a link to it would not be appropriate.”); H.R.

REP. NO. 105-551, pt. 2, at 58 (1998).

634

See Viacom, 676 F.3d at 31–32; Veoh IV, 718 F.3d at 1021–23.

U.S. Copyright Office Section 512 Report

120

hold the copyright in question would know whether the material was infringing”—it “could act

as a red flag.”

635

In the seminal decision distinguishing red flag from actual knowledge, Viacom

International, Inc. v. YouTube, Inc., the Second Circuit stated that actual knowledge is judged by a

subjective standard and red flag knowledge by both a subjective and an objective one:

In other words, the actual knowledge provision turns on whether the provider actually or

“subjectively” knew of specific infringement, while the red flag provision turns on whether

the provider was subjectively aware of facts that would have made the specific

infringement “objectively” obvious to a reasonable person.

636

The key difference, according to the court, is that red flag knowledge could be broader because

the OSP is judged against a reasonable OSP, while actual knowledge lacks an external measuring

stick. The Second Circuit also found that YouTube’s internal emails regarding site searches could

provide red flag knowledge.

637

As discussed below, subsequent courts have consistently applied

Viacom in a manner that has overall heightened the burden for demonstrating red flag

knowledge.

638

In following Viacom, courts have shown how that decision blurs the boundary between

actual and red flag knowledge.

639

In Columbia Pictures Industries, Inc. v. Fung, for example, the

Ninth Circuit said that red flag knowledge was apparent because the OSP had been “actively

encouraging infringement, by urging his users to both upload and download particular

copyrighted works, providing assistance to those seeking to watch copyrighted films, and helping

his users burn copyrighted material onto DVDs.”

640

Though the court did not go so far as to

charge Fung with actual knowledge, and thus “Fung’s inducing actions do not necessarily render him

635

Veoh IV, 718 F.3d at 1025.

636

Viacom, 676 F.3d at 31 (emphasis added). But see S. REP. NO. 105-190, at 44 (1998) (“However, if the service provider

becomes aware of a ‘red flag’ from which infringing activity is apparent, it will lose the limitation of liability if it takes

no action. The ‘red flag’ test has both a subjective and an objective element. In determining whether the service

provider was aware of a ‘red flag,’ the subjective awareness of the service provider of the facts or circumstances in

question must be determined. However, in deciding whether those facts or circumstances constitute a ‘red flag’—in

other words, whether infringing activity would have been apparent to a reasonable person operating under the same or

similar circumstances—an objective standard should be used.”).

637

See Viacom, 676 F.3d at 34.

638

One participant at the New York Roundtable describes the result as “the red flag substitute for actual knowledge also

requires red flag knowledge of specific infringing material.” Tr. at 181:22–24 (May 2, 2016) (Bruce Joseph, Wiley Rein

LLP for Verizon).

639

See, e.g., Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 78, 93–94 (2d Cir. 2016); Veoh IV, 718 F.3d at 1025–26; BWP Media

USA Inc. v. Clarity Digital Grp., LLC, Civ. No. 14–cv–00467, 2015 WL 1538366, at *9 (D. Colo. Mar. 31, 2015), aff’d, 800

F.3d 1175 (10th Cir. 2016); Disney Enters., Inc. v. Hotfile Corp., No. 11–20427–CIV, 2013 WL 6336286, at *27 (S.D. Fla. Sept.

20, 2013).

640

Fung, 710 F.3d at 1043.

U.S. Copyright Office Section 512 Report

121

per se ineligible for protection under § 512(c),” Fung would nevertheless be charged with red flag

knowledge because the “material in question was sufficiently current and well-known . . . it

would have been objectively obvious to a reasonable person that the material . . . was both

copyrighted and not licensed to random members of the public.”

641

Similarly, a district court applying Viacom found, with respect to domains for which the

OSP had received notices identifying ten or more infringing files, that “knowledge that a high

percentage of content on a domain is infringing does not establish actual or red flag knowledge of

particular instances of infringement.”

642

The same district court also found that the defendant

lacked red flag knowledge with respect to MP3s uploaded to the service before 2007, despite the

fact that “[t]he major record labels offered no MP3s for sale until 2007, and [defendant] knew

this,” reasoning that even “[k]nowledge that a high percentage of a type of content is infringing is

insufficient to create red flag knowledge.”

643

The district court reached these conclusions because

it found that the defendant did not have an affirmative duty to monitor, even though the

defendant had broad knowledge of pervasive infringement.

644

However, on appeal, the Second

Circuit suggested that there may be circumstances nearing a general knowledge of infringement

that sufficiently approaches either red flag knowledge or willful blindness as to require action by

an OSP. Importantly, though, the Second Circuit reiterated that even that level of red flag

knowledge could not “give rise to an ‘amorphous’ duty to monitor in contravention of the

DMCA,” but instead that resulting duty would be “a time-limited, targeted duty—even if

encompassing a large number of songs.”

645

641

Id. at 1043 (emphasis added).

642

Capitol Records, Inc. v. MP3tunes, LLC, 48 F. Supp. 3d 703, 716 (S.D.N.Y. 2014), aff’d in part, rev’d in part and remanded

sub nom., EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 840 F.3d 69 (2d Cir. 2016), withdrawn from bound volume, and

aff’d in part, rev’d in part and remanded sub nom., EMI Christian Music Grp., Inc. v. MP3tunes, LLC, 844 F.3d 79 (2d Cir. 2016)

(emphasis added) (citations omitted). The court further found that defendant lacked willful blindness with respect to

this type of material. Id. This holding was not addressed on appeal.

643

Id. (emphasis added). The court further found that defendant lacked willful blindness with respect to pre-2007 MP3s

because “in the context of the DMCA, willful blindness is limited by the express statutory disavowal of a duty to

affirmatively monitor” contained in section 512(m). Id.

644

Id.; see also Veoh IV, 718 F.3d at 1023 (“’[W]e do not place the burden of determining whether [materials] are actually

illegal on a service provider,’ and ‘[w]e impose no such investigative duties on service providers.’”) (quoting CCBill, 488

F.3d at 1114). In an earlier holding, the MP3tunes district court did state that a jury could reasonably find that a limited

duty of investigation arose upon receipt of an email with a specific blog title and a statement that “[a]lthough I don’t

like ratting myself out, everything I post is in clear violation of the DMCA . . . . please remove any MP3s that are linked

to that site.” Capitol Records, Inc. v. MP3tunes, LLC, No. 07 CIV. 9931, 2013 WL 1987225, at *3 (S.D.N.Y. May 14, 2013).

645

EMI Christian Music, 844 F.3d at 93. The Second Circuit’s second basis for holding that the jury could have found

that the defendant had either red flag or willful blindness was the fact that the jury “could reasonably have found that

MP3tunes conceived of and was designed to facilitate infringement based in part on evidence presented at trial that

MP3tunes ‘actively encourage[d] infringement.’” Id. at 93.

U.S. Copyright Office Section 512 Report

122

The Second Circuit’s rationale in Viacom for the distinction between actual knowledge and

red flag knowledge—that it is the difference between a subjective and objective standard

646

—does

not mandate the result in that case, defining red flag knowledge as meaning knowledge of specific

and identifiable infringements. Defining red flag knowledge in such a manner is not compelled by

either the wording of the statute or the legislative history. As an example of red flag knowledge,

Congress described a situation in which the OSP “was aware of facts from which infringing

activity was apparent if . . . the location was clearly, at the time the directory provider viewed it, a

‘pirate’ site of the type described below, where sound recordings, software, movies, or books

were available for unauthorized downloading, public performance, or public display.”

647

This

examination focuses on the general nature of the site, not whether the site infringed a particular

duty of inquiry for an OSP to determine whether there is “objectively obvious” infringement.

Such a limited duty would not contravene section 512(m)’s bar on a general duty to monitor, but

would only be triggered in specific situations by awareness “of facts or circumstances from which

infringing activity is apparent.”

648

Indeed, in EMI Christian Music, the Second Circuit itself

recognized that such a “time-limited, targeted duty” does not run afoul of section 512(m) when

red flag knowledge is present.

649

The Copyright Office questions whether the way in which courts have sought to reconcile

the competing demands of red flag knowledge and section 512(m) fully comports with

congressional intent. As Professor Peter Menell has stated, section 512(m):

[I]s not inconsistent with general knowledge casting an OSP out of the safe harbor. It

merely states that the DMCA does not force an OSP to monitor its service. An OSP is

certainly free to monitor its service, and given the risks of UGC [user-generated content]

sites not doing so, it is not surprising that Veoh and YouTube eventually chose to

implement filtering technologies. Section 512(m) cannot be fairly read to limit subsection

[512(c)(1)(A)](ii) to specific knowledge of infringing activity.

650

This argument is consistent with the limited duty to follow up on red flag knowledge

countenanced by the Second Circuit in EMI Christian Music, as well as with the instruction in the

646

Viacom, 676 F.3d at 31.

647

H.R. REP. NO. 150-551, pt. 2, at 57 (1998).

648

17 U.S.C. § 512(c)(1)(A)(ii).

649

EMI Christian Music, 844 F.3d at 93.

650

Peter S. Menell, Judicial Regulation of Digital Copyright Windfalls: Making Interpretative and Policy Sense of Viacom v.

YouTube and UMG Recordings v. Shelter Capital Partners 6 (U.C. Berkeley Pub. Law Research, Paper No. 2049445,

2012), http://ssrn.com/abstract=2049445. See also supra n.591.

U.S. Copyright Office Section 512 Report

123

legislative history of section 512(m) that “once one becomes aware of [suspicious] information,

however, one may have an obligation to check further.”

651

The Office believes a standard that requires an OSP to have knowledge of a specific

infringement in order to be charged with red flag knowledge has created outcomes that Congress

likely did not anticipate. The Copyright Office reads the current interpretations of red flag

knowledge as effectively removing the standard from the statute in some cases, while carving an

exceptionally narrow path in others that almost requires a user to “fess up” before the OSP will

have a duty to act. OSPs are correct that Congress likely did not intend to adopt a general

awareness standard for red flag knowledge, since such a standard would consume many OSPs

Congress otherwise sought to protect.

652

Yet courts have set too high a bar for red flag

knowledge, leaving an exceptionally narrow space for facts or circumstances that do not qualify

as actual knowledge but will still spur an OSP to act expeditiously to remove infringing content.

Significantly, Congress set up the actual knowledge standard as distinct from red flag

knowledge, both through the structure of the statutory text (a disjunctive “or” is used to identify

red flag knowledge as something separate from actual knowledge) and through the legislative

history (which explicitly states that red flag knowledge can stand in for actual knowledge when

actual knowledge is not present). But as interpreted now, there is little space between the two.

To that point, at the Washington, D.C., public roundtable in April 2019, participants repeatedly

were asked for an example of an activity that would be less than actual knowledge but would

create red flag knowledge under the current judicial interpretations of the statute. Stakeholders

were unable to identify a single activity.

Such a narrow interpretation of red flag knowledge minimizes an OSP’s duty to act upon

information of infringement and, in doing so, protects activities that Congress did not intend to

protect. The end result is a shift in the balance that Congress originally struck. If Congress

intends for the actual knowledge and red flag knowledge standards to be distinct, then Congress

may wish add statutory language to that effect. If it chooses to do so, Congress may also wish to

clarify whether the prohibition against a duty to monitor found in section 512(m) in fact releases

OSPs from a duty to “check further” when it is presented with red flag knowledge of

infringement, absent red flag knowledge related to a specific piece of copyrighted content or

incidence of infringement.

The Office recognizes that the burden imposed on OSPs by the knowledge standards is

likely to differ based on circumstances specific to the different types and sizes of OSPs. So too

will the level of technological sophistication and availability of staff with the expertise required to

address evidence constituting red flag knowledge. For example, a major platform that hosts

651

H.R. REP. NO. 105-551, pt. 1, at 26 (1998).

652

The legislative history indicates that the “intended objective of this standard is to exclude from the safe harbor

sophisticated ‘pirate’ directories,” not OSPs who are aware their sites may be used to infringe. H.R. REP. NO. 150-551,

pt. 2, at 58 (1998).

U.S. Copyright Office Section 512 Report

124

audiovisual works with a history of hosting infringing content may need to implement costly

filtering technologies, while a small craft sales site might just need to assign content review to an

existing employee. For this reason, the Office thinks that a reasonableness standard that accounts

for each OSP’s relevant characteristics would be appropriate for right-sizing section 512, and

necessary to continue section 512’s promotion of a diverse internet ecosystem.

(b) Willful Blindness

Absent actual knowledge or red flag knowledge, an OSP covered under the section 512(c)

or 512(d) safe harbors will lose that protection if a copyright owner can prove that the OSP acted

to avoid obtaining actual or red flag knowledge.

653

The willful blindness doctrine, as it is known,

asks whether an OSP blinded itself to possible exposure to infringing activity by its users.

654

Though the phrase does not appear in section 512, in a case of first impression, the Second

Circuit in Viacom held that the common law concept of willful blindness applied to the question of

whether an OSP lacks knowledge of infringing activity. The Second Circuit noted that statutes

are not interpreted to abrogate common law doctrines unless the statute “speak[s] directly to the

question addressed by the common law.”

655

The Viacom court noted, in particular, that the

doctrine of “willful blindness cannot be defined as an affirmative duty to monitor,” and thus was

not incompatible with section 512(m), but found that it could be used by rightsholders only to

“demonstrate [the OSP’s] knowledge or awareness of specific instances of infringement.”

656

remand, the district court further narrowed the willful blindness standard by collapsing the

analysis with the red flag knowledge standard articulated by the Second Circuit, stating that

“under the DMCA, what disqualifies the service provider from the DMCA’s protection is

blindness to ‘specific and identifiable instances of infringement.’”

657

Applying this standard, the

district court found that YouTube had not been willfully blind because there was “no showing of

willful blindness to specific infringements of clips-in-suit.”

658

Subsequent court decisions have

largely applied similar reasoning, finding that “willful blindness . . . require[s] a conclusion that

653

See Viacom, 676 F.3d at 35 (‘‘[W]illful blindness doctrine may be applied, in appropriate circumstances, to

demonstrate knowledge or awareness of specific instances of infringement under the DMCA.’’); Hotfile, 2013 WL

6336286, at *27 (“[W]illful blindness under the common law—i.e., an intentional effort to avoid guilty knowledge—can

equate to actual knowledge.”).

654

See Viacom, 676 F.3d at 35 (stating that willful blindness involves “conscious avoidance amounting to knowledge

where the person was aware of a high probability of the fact in dispute and consciously avoided confirming that fact”)

(internal quotation marks omitted).

655

Viacom, 676 F.3d at 35 (stating that the willful blindness doctrine was not abrogated by section 512) (citations

omitted).

656

Viacom, 676 F.3d at 35 (emphasis added) (citations omitted).

657

Viacom Int’l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 116 (S.D.N.Y. 2013) (emphasis added) (applying on remand the

Second Circuit’s standard for red flag knowledge to determining the existence of willful blindness and quoting Viacom,

676 F.3d at 32). For an analysis of the red flag knowledge standard, see supra section VI.A.1.c.i.(a).

658

Viacom Int’l, Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 117 (S.D.N.Y. 2013).

U.S. Copyright Office Section 512 Report

125

[the OSP] consciously avoided learning about specific instances of infringement.”

659

In contrast,

the Southern District of New York has, in at least one instance, found that an email stating that

“it’s not clear if [content from a user’s site] is all copyright [sic] material . . . it probably is though,”

may be sufficient to raise a question of fact regarding willful blindness.

660

Many rightsholders argue that Viacom and its progeny have set the willful blindness

standard too high, questioning how an OSP can be willfully blind to a specific infringement if the

conscious avoidance of information shields the OSP from ever learning about the specific

infringement.

661

That standard, rightsholders claim, has had the consequence of discouraging

OSPs from any proactive, voluntary infringement mitigation.

662

In contrast, OSPs and user

advocacy groups argue that courts have correctly applied the doctrine by “requir[ing] conscious

avoidance of facts concerning specific infringements.”

663

They state that a less rigorous standard

“that rests on generalized knowledge or imposes monitoring requirements on service providers

would directly contradict the statutory language that no such obligation be placed on providers

659

Cox, 881 F.3d at 312 (quotation marks omitted); see also Vimeo, 826 F.3d at 98–99; Hotfile, 2013 WL 6336286, at *27; cf.

Veoh IV, 718 F.3d at 1023 (holding that willful blindness cannot be found when the OSP has “promptly removed

infringing material when it became aware of specific instances of infringement”).

660

Capital Records, Inc. v. MP3tunes, LLC, No. 07 Civ. 9931, 2013 WL 1987225, at *3 (S.D.N.Y. May 14, 2013) (internal

quotes omitted).

661

See, e.g., Copyright Alliance Initial Comments at 23 (“By definition, then, a service provider that is willfully blind to

infringing activity on its system has ensured that it will not have knowledge that is ‘tailored to’ the ‘specific infringing

content at issue,’ because that is the very knowledge the service provider has consciously avoided.”); Tr. at 259:15–21

(May 12, 2016) (George Borkowski, RIAA) (“[T]he specific knowledge concept has been so wrongfully extended that for

example, in the Vimeo case, talking about willful blindness, the court said that you have to be willfully blind to specific

instances of infringement. That’s an impossibility. If you’re aware of a specific infringement, you’re not blind to it.”);

Tr. at 228:5–9 (May 2, 2016) (Joseph DiMona, Broadcast Music, Inc.) (“[I]n order to show someone who is willfully blind

to something, you have to show that they were willfully blind to a specific work, which is a logical fallacy. I mean, you

can’t be blind to something that you know about.”); cf. Kernochan Initial Comments at 13.

662

See Authors Guild Initial Comments at 20 (“The result of this misplaced burden is that the safe harbors, intended to

protect those service providers undertaking reasonable, good faith efforts to keep their sites piracy-free, instead shield

bad actors. Even worse, service providers are penalized for trying to be good digital citizens and monitoring their sites

for user-posted infringing content, because that knowledge leads to liability.”) (citation omitted); MPAA Initial

Comments at 35 (“That judicial interpretation also encourages willful blindness . . . . If a service provider is not liable

unless it has knowledge about a specific instance of infringement—even though it is aware of pervasive copyright

infringement on its site or service—it will do everything in its power to avoid gaining that knowledge.”); Tr. at 41:23–

42:11, 43:8–19 (May 3, 2016) (Steven Rosenthal, McGraw-Hill Education); Tr. at 202:22–24 (May 2, 2016) (Marcie

Kaufman, ITHAKA/Artstor) (“And the problem when you look at willful blindness, well, all of a sudden, maybe they

don’t want to run their reports.”).

663

Facebook Initial Comments at 9. See also CCIA Initial Comments at 21 (arguing that Congress intended for the safe

harbor to be unavailable only when an OSP turns a “blind eye to ‘red flags’ of obvious infringement”) (internal quotes

omitted) (citation omitted).

U.S. Copyright Office Section 512 Report

126

under Section 512(m), which necessarily helps form the frameworks of clarity fundamental to

long-term success of the safe harbors.”

664

The Copyright Office is unpersuaded by the willful blindness standard articulated by the

Viacom district court. The wording of section 512 does not offer specific guidance on how to

address the inherent “tension between the doctrine of willful blindness and the DMCA’s explicit

repudiation of any affirmative duty on the part of service providers to monitor user content,” and

courts have not yet settled upon a consistent standard.

665

Prior precedent suggests that a finding

of willful blindness requires something more than evidence that the OSP has “constructive

knowledge of the fact that [their] customers may use that [service] to make unauthorized copies

of copyrighted material.”

666

Similarly, something more than mere negligence is likely required to

establish willful blindness.

667

At the other end of the spectrum, an interpretation of section 512(m)

that allows OSPs to assiduously avoid obtaining actual knowledge of specific infringements,

regardless of the strength of evidence indicating a likelihood of infringing activity, does not

appear to comport with congressional intent. Instead, the standard for willful blindness properly

lies somewhere in the middle.

By requiring evidence of specific instances of infringing material, rather than facts relating

to infringement of specific copyrighted content, the courts have adopted a bar for demonstrating

an OSP’s willful blindness that is both higher than the criminal willful blindness standard

articulated by the Supreme Court

668

and higher than the standard of willful blindness

traditionally applied in copyright cases.

669

As with red flag knowledge, section 512(m) has played

664

Internet Association Initial Comments at 26. See also CDT/R St. Initial Comments at 16 (“A general knowledge

standard, particularly when coupled with an understanding of willful blindness that would require service providers

to seek such knowledge, would evict nearly any service provider from the safe harbor if they do not either prevent the

posting of user-generated content or monitor that content and the users who post it. That obligation would be at odds

with the clear language of the statute and Congress’ intent not to require service providers to engage in such

monitoring.”).

665

Capitol Records, Inc. v. MP3tunes, LLC, No. 07 Civ. 9931, 2013 WL 1987225, at *2 (S.D.N.Y. May 14, 2013).

666

Betamax, 464 U.S. at 439.

667

See, e.g., Unicolors, Inc. v. Urban Outfitters, Inc., 853 F.3d 980, 991 (9th Cir. 2017 (“[T]o prove willfulness under the

the defendant’s actions were the result of reckless disregard for, or willful blindness to, the copyright holder's rights.”)

(emphasis added) (quoting Wash. Shoe Co. v. A-Z Sporting Goods Inc., 704 F.3d 668, 674 (9th Cir. 2012)). But see Glob.-Tech

Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011) (stating, in a case regarding inducement of patent infringement, the

articulated standard “give[s] willful blindness an appropriately limited scope that surpasses recklessness and

negligence.”).

668

Glob.–Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 766 (2011) (a defendant may not “deliberately shield[] themselves

from clear evidence of critical facts that are strongly suggested by the circumstances”).

669

See, e.g., Island Software & Comput. Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 263–64 (2d Cir. 2005) (holding that

evidence that some, but not all, of the copies supplied by a third party may be counterfeit products can support a

finding of willful blindness of copyright infringement, and “even in the absence of evidence establishing the infringer’s

actual knowledge of infringement, a plaintiff can still prove willfulness by proffering circumstantial evidence that gives

rise to an inference of willful conduct”); In re Aimster Copyright Litig., 334 F.3d 643, 650 (7th Cir. 2003) (rejecting

U.S. Copyright Office Section 512 Report

127

a significant role in courts’ articulation of a willful blindness standard. Using section 512(m) as

the starting point for interpreting all other parts of section 512 has resulted in a willful blindness

standard that is difficult to square with Congress’ original intent.

670

In any event, the

interpretation certain stakeholders urge—that willful blindness may be imputed to an OSP only if

they have evidence of a specific incidence of infringement occurring at a specific URL—is

unsupported by either the text of section 512 or the contours of the common law standard for

willful blindness.

671

The Copyright Office believes that the current articulation of the willful blindness

standard is likely more narrow than appropriate. This is another instance in which the section

512 system may benefit from congressional action to provide clarity to the proper interaction

between section 512(m) and the obligations placed on OSPs elsewhere in the statute.

It is worth noting, however, that there is a tension between strengthening the willful

blindness doctrine as applied to section 512, and the value of active content moderation by service

defendant’s claim that use of encryption, which prevents the defendant from ascertaining what files are being shared,

leads to the conclusion that defendant “lacked the knowledge of infringing uses that liability for contributory

infringement requires,” because “[w]illful blindness is knowledge”); Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1010

(2d Cir. 1995) (noting that “[k]nowledge of infringement may be constructive rather than actual; that is, ‘it need not be

proven directly but may be inferred from the defendant’s conduct’”) (internal citation omitted).

670

Based on the standard of willful blindness articulated elsewhere in the law, a willful blindness standard may

appropriately be somewhat stricter than a red flag knowledge standard, requiring additional evidence suggesting

infringement. Cf. Connors v. Iquique U.S.L.L.C., No. C05-334, 2005 WL 3007127, at *3 (W.D. Wash. Nov. 9, 2005) (noting

that a jury could find that “[d]efendants’ failure to ask follow-up questions in light of numerous red flags indicating

heart disease shows willful blindness to Plaintiff’s condition”) (emphasis added). The Office does not believe, however,

that either red flag knowledge or willful blindness properly applies only to knowledge of a specific instance of an act of

infringement (such as a notice that a particular instance of infringing material is located at a specific URL), rather than

knowledge of broader facts indicating acts of infringement with regard to specific copyrighted material (such as receipt

of a notice identifying one URL at which infringing content is located, along with a statement that the particular song is

not licensed for use on the platform but can be found at multiple URLs throughout the site). See, e.g., Capitol Records,

Inc. v. MP3tunes, LLC, No. 07 Civ. 9931, 2014 WL 503959, at *5 (S.D.N.Y. Jan. 29, 2014) (rejecting only evidence related to

knowledge of infringements of songs not in suit, but allowing evidence regarding communications between plaintiff’s

employees discussing infringement of songs owned by plaintiff).

671

While the Office acknowledges that receipt of a notification under section 512(c)(3)(A) does not, in fact, obligate an

ISP to actually remove content, it does not follow that an ISP may simply reject such notices as some argued prior to the

Fourth Circuit’s decision in Cox. See Tr. at 65:17–68:13 (May 2, 2016) (Patrick Flaherty, Verizon; Jacqueline

Charlesworth, U.S. Copyright Office) (confirming that Verizon’s then practice, upon receiving a notice under section

512(c)(3)(A), was to reject the notice and not take any action). To date, no court has found ISPs to be exempt from the

requirement to have a repeat infringer policy. As notices containing the information identified in section 512(c)(1)(A)(3)

are one of the primary mechanisms for rightsholders to communicate users’ infringing actions to an ISP, it logically

follows that ISPs must accept such notices and consider the information contained therein, even absent a legal duty to

act (unless the notice triggers the repeat infringer policy). Nor does the Office find persuasive support for the

contention that a mere conduit ISP lacks willful blindness upon receiving multiple notices regarding a particular

individual, in the absence of a court adjudication of infringement. As the Fourth Circuit has noted, adjudication of

infringement is not necessary to trigger an obligation to apply the ISP’s repeat infringer policy. Cox, 881 F.3d at 303.

Thus, if an ISP elects to ignore infringement notices—and especially if it is their common practice—it is difficult to see

how they are not willfully blinding themselves to infringements on their network.

U.S. Copyright Office Section 512 Report

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providers promoted by section 230 of the Communications Decency Act.

672

If, as the result of

moderating content to address violations of community standards, an OSP becomes aware of

facts suggesting a likelihood of infringement, which in turn creates willful blindness liability for

the OSP if it does not follow up on these “red flags,” this may create a perverse incentive for the

provider to reduce its content moderation activities.

673

Congress thus would need to balance

these two competing policies.

ii. Financial Benefit/Right and Ability to Control

Section 512(c)(1)(B) articulates an additional requirement: hosting and information

location OSPs shall not be liable “for infringement of copyright by reason of the storage at the

direction of a user of material . . . if the service provider . . . does not receive a financial benefit

directly attributable to the infringing activity, in a case in which the service provider has the right

and ability to control such activity.”

674

Through this language, Congress sought to codify both the

“financial benefit” and “right and ability to control” prongs of the common law vicarious liability

standard.

675

With respect to the “financial benefit” portion of the test, the legislative history makes

clear that Congress did not intend for an OSP’s receipt of standard set-up fees or monthly service

charges from users of its service to constitute a “financial benefit directly attributable to the

infringing activity,” even when those users ultimately utilize the service to engage in infringing

672

See 47 U.S.C. § 230(c)(2)(A) (eliminating civil liability for content moderation by OSPs).

673

See CDT/R St. Initial Comments at 17 (“Interpreting actual and red flag knowledge to require specific knowledge of

particular infringing activity allows service providers to investigate potential infringement on their services without

risking loss of their protection under the safe harbor. In this sense, section 512 resembles section 230 of the

Communications Act, which allows service providers to investigate potentially defamatory or otherwise unlawful

content without that investigation placing them at risk of liability as the publisher of that content.”).

674

17 U.S.C. § 512(c)(1)(B).

675

H.R. REP. NO. 105-551, pt. 1, at 25–26 (1998) (stating that “[t]he financial benefit standard in subparagraph (B) is

intended to codify and clarify the direct financial benefit element of vicarious liability,” and that “[t]he ‘right and ability

to control’ language in Subparagraph (B) codifies the second element of vicarious liability”). The Senate Report, which

was published almost two weeks earlier, contains a significantly more truncated discussion of section 512(c)(1)(B) that

omits any discussion of either the common law or the meaning of right and ability to control. See S. REP. NO. 105–190,

at 44–45 (1998). Explaining the approach taken by the Committee in drafting section 512 generally, the Senate Report

states that, while most cases addressing OSP liability to that point “have approached the issue from the standpoint of

contributory and vicarious liability,” the Committee chose not to “embark[] upon a wholesale clarification of these

doctrines,” but instead “decided to leave current law in its evolving state” and develop a series of safe harbors for OSPs

instead. Id. at 19. Some litigants have argued that this change in language indicates that Congress no longer intended

to codify the common law of vicarious liability. See, e.g., Viacom, 676 F.3d at 37 (“In response, YouTube notes that the

codification reference was omitted from the committee reports describing the final legislation, and that Congress

ultimately abandoned any attempt to ‘embark[ ] upon a wholesale clarification’ of vicarious liability, electing instead ‘to

create a series of “safe harbors” for certain common activities of service providers.’”) (quoting S. REP. NO. 105-190, at 19

(1998)).

U.S. Copyright Office Section 512 Report

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activity.

676

Instead, Congress noted that this prong of the test would be satisfied if “the value of

the service lies in providing access to infringing material.”

677

Likewise, Congress specifically

clarified that the “right and ability to control” element is not limited to “formal indicia” of control

such as a contractual relationship, but rather is “intended to preserve existing case law that

examines all relevant aspects of the relationship between the primary and secondary infringer.”

678

The case law, and participants in the Study, disagree over the extent to which section

512(c)(1)(B) does (or should) mirror the common law vicarious liability standard, especially with

respect to the “right and ability to control” prong. Section 512(c)(1)(B) has been heavily litigated.

As a general matter, courts have interpreted the financial benefit prong in a manner equivalent to

the common law test for vicarious liability,

679

asking “whether the infringing activity constitutes a

draw for subscribers, not just an added benefit.”

680

The Ninth Circuit later added that this

standard requires “a causal relationship between the infringing activity and any financial benefit

a defendant reaps,” but that “flat, periodic payments for service from a person engaging in

infringing activities” do not rise to that level.

681

Courts have also found revenue received from

displaying ads on the website that contains infringing material to be insufficient.

682

Courts

typically have required evidence that customers visited a site for the infringing content or that the

site owner either promoted the infringing content or marketed the site by pointing to infringing

676

H.R. REP. NO. 105-551, pt. 1, at 25–26 (1998).

677

H.R. REP. NO. 105-551, pt. 1, at 25–26 (1998).

678

H.R. REP. NO. 105-551, pt. 1, at 26 (1998).

679

See, e.g., CCBill, 488 F.3d at 1117 (holding that “‘direct financial benefit’ should be interpreted consistent with the

similarly-worded common law standard for vicarious copyright liability”); Wolk v. Kodak Imaging Network, Inc., 840 F.

Supp. 2d 724, 748 (S.D.N.Y. 2012), aff'd sub nom., Wolk v. Photobucket.com, Inc., 569 F. App’x 51 (2d Cir. 2014).

680

Ellison v. Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004) (defining a “draw” as where “customers either subscribed

because of the available infringing material or canceled subscriptions because it was no longer available”); see also

Warner Records Inc. v. Charter Commc'ns, Inc., No. 19-CV-00874, 2020 WL 1872387, at *4 (D. Colo. Apr. 15, 2020) (holding

that “[i]f subscribers are attracted to Charter’s services in part because of the ability to infringe on plaintiffs’

copyrighted materials in particular, this is sufficient to show that the materials were ‘a draw.’”) (citations omitted).

Where revenue comes from advertising, the inquiry goes to whether “the connection between the infringing activity

and [the OSP’s] income stream derived from advertising is sufficiently direct.” Fung, 710 F.3d at 1045. See also Getty

Initial Comments at 7 (“The direct financial benefit has been so narrowly construed that platforms that generate

revenue through advertising placed on or adjacent to infringing content are not deemed to have directly benefited, even

when the infringing content is clearly what drew the users to the site and what allowed the platform to generate

substantial revenue.”).

681

Fung, 710 F.3d at 1044–45 (citations omitted).

682

BWP Media USA Inc. v. Clarity Digital Grp., LLC, No. 14-CV-00467, 2015 WL 1538366, at *10 (D. Colo. Mar. 31, 2015),

aff'd, 820 F.3d 1175 (10th Cir. 2016). But see Venus Fashions, Inc. v. ContextLogic, Inc., No. 3:16-CV-907-J-39, 2017 WL

2901695, at *28 (M.D. Fla. Jan. 17, 2017) (holding that receiving a commission on sales, including of infringing articles,

made by users through the website qualified as a direct financial benefit).

U.S. Copyright Office Section 512 Report

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content.

683

As one participant at the roundtable states, the “direct financial benefit really is akin to

aiding and abetting.”

684

In one case, the Central District of California articulated a standard that

goes beyond this test, holding that a plaintiff must show a direct link between the financial

benefit and the infringing material at issue in the case, not merely a link to “infringing material in

general” on the site.

685

The primary dispute between rightsholders and OSPs on the application of section

512(c)(1)(B), however, concerns how this provision interacts with the other provisions of section

512, and, as a result, whether the “right and ability to control” standard under section 512 should

deviate from the common law vicarious liability standard. In their comments, a few Study

participants specifically note this potential conflict between section 512(c)(1)(B) and other

provisions of section 512 as resulting in a lack of clarity for courts and stakeholders.

686

Generally, rightsholders participating in the Study assert that Congress intended to

preserve common law rules on vicarious liability, but that the courts have adopted a higher

standard for demonstrating a right and ability to control.

687

In their comments, rightsholders

broadly oppose an interpretation that “something more” beyond the ability to locate and remove

infringing material is required to demonstrate the “right and ability to control,”

688

as required by

the standards articulated in the Second and Ninth Circuits.

689

Nor do rightsholders believe that

courts applied an adequate standard in the few cases in which courts have found the “right and

ability to control,” describing the actions that resulted in liability under these cases as merely

“egregious cases” of conduct by OSPs.

690

Another rightsholder explains that “it is hard to

imagine” which activities would qualify as having a right and ability to control, citing

683

BWP Media USA, 2015 WL 1538366, at *10; see also Hempton v. Pond5, Inc., No. 3:15-CV-05696, 2016 WL 6217113, at *10

(W.D. Wash. Oct. 25, 2016), reconsideration denied, No. 3:15-CV-05696, 2017 WL 132453 (W.D. Wash. Jan. 13, 2017),

dismissed, No. 17-35125, 2017 WL 3444065 (9th Cir. Mar. 15, 2017).

684

Tr. at 267:15–16 (May 2, 2016) (Jim Halpert, DLA Piper for ICC).

685

Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098, 2014 WL 8628031, at *4 (C.D. Cal. Nov. 14, 2014), aff'd, 847 F.3d 657

(9th Cir. 2017). Compare H.R. REP. NO. 105-551, pt. 1, at 25–26 (1998) (noting that financial benefit would “include any

such fees where the value of the service lies in providing access to infringing material,” rather than a specific piece of

infringing material) (emphasis added).

686

See, e.g., Authors Guild Initial Comments at 24; Kernochan Initial Comments at 14–16. But see MPAA Initial

Comments at 38 (“Nothing in section 512’s language, structure or history suggests that a service provider lacks the

‘right and ability to control’ unless it participates in the infringement.”).

687

See, e.g., A2IM Music Community Initial Comments at 38–39; Authors Guild Initial Comments at 22–23.

688

See, e.g., Authors Guild Initial Comments at 23 (listing a series of fact patterns that courts have found do not

constitute the right and ability to control, and noting that “[i]f none of these activities qualify as ‘the right and ability to

control,’ it is hard to imagine what would”); MPAA Initial Comments at 36 (“The Second and Ninth Circuits, however,

have incorrectly interpreted section 512 to require even more than that, rendering the standards nearly impossible to

meet.”).

689

See Viacom, 676 F.3d at 38; Fung, 710 F.3d at 1045.

690

A2IM Music Community Initial Comments at 38 n.126.

U.S. Copyright Office Section 512 Report

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enforcement of policies that prohibit users from engaging in illegal or unauthorized content as

activity that should qualify.

691

With so few OSPs found to have been ineligible on both the

“financial benefit” and “right and ability to control” prongs, one rightsholder responds that the

“bar has been set so high, services feel they can profit from infringing content with near

impunity.”

692

These rightsholders conclude that these decisions “have worked to enable and even

encourage infringement to the detriment of copyright holders,”

693

by “remov[ing] [the OSPs’]

incentive to work with copyright owners to detect and combat infringement.”

694

In contrast, OSPs state that courts have interpreted section 512(c)(1)(B) as Congress

intended,

695

noting in particular that multiple circuits have concluded that it would be

inconsistent with other provisions of section 512 to hold OSPs to a common law vicarious liability

standard.

696

In fact, one commenter notes that “secondary liability theories were exactly what

Congress intended to protect intermediaries from with the DMCA.”

697

OSPs, moreover, credited

courts’ interpretations of section 512(c)(1)(B) with facilitating the development of online platforms

by affording latitude for generating services that are beneficial to both users and rightsholders.

698

A few OSPs in their comments claim that the greater potential for liability associated with

the common law vicarious liability standard would ultimately discourage compliance with

section 512.

699

OSPs typically implement compliance programs in order to receive the protection

of the safe harbor, they assert, and in doing so, they provide benefits to rightsholders through

691

Authors Guild Initial Comments at 23.

692

A2IM Music Community Initial Comments at 39.

693

See Getty Initial Comments at 7; MPAA Initial Comments at 39 (“The courts’ erroneous construction of the financial

benefit/right and ability to control provisions has negative consequences”).

694

MPAA Initial Comments at 39.

695

See, e.g., CCIA Initial Comments at 22; Google Initial Comments at 14; Internet Association Initial Comments at 27;

ICC Initial Comments at 5; SoundCloud Operations, Inc., Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry at 15 (Apr. 1, 2016) (“SoundCloud Initial Comments”).

696

See, e.g., ICC Initial Comments at 5 (saying that section 512(c) “[did] not simply recapitulate the standard for

vicarious liability”); OTW Initial Comments at 19 (“[C]ourts have reached the right conclusions . . . [by] eschewing

interpretations that would find such an ability [of control] from the mere ability to comply with the takedown

procedure.”); SoundCloud Initial Comments at 15; see also Veoh IV, 718 F.3d at 1028 n.17 (collecting cases); CoStar Grp.,

Inc. v. LoopNet, Inc., 373 F.3d 544, 555 (4th Cir. 2004). OSPs largely address this potential inconsistency by arguing that

Congress never intended a vicarious liability interpretation, thus eliminating any conflict.

697

CCIA Initial Comments at 22.

698

See Facebook Initial Comments at 9. Google claims that, in contrast, a vicarious liability standard “would have

rendered the safe harbors ineffective . . . and potentially subjected OSPs to strict liability for infringing activity by [a]

tiny minority of users,” which “would have drastically changed the nature of online platforms” to the detriment of the

tech industry and non-infringing users. Google Initial Comments at 14–15; see also ICC Initial Comments at 5

(“[B]ecause the vicarious liability standard for copyright infringement is unacceptably uncertain in the Internet context

. . . Congress chose to enact [section 512(c)].”).

699

See, e.g., CCIA Initial Comments at 23; Google Initial Comments at 14–15.

U.S. Copyright Office Section 512 Report

132

“access to expeditious extra-judicial takedowns.”

700

CCIA states that, if liability was imposed

under the common law standard, the protection that the safe harbor offers would be essentially

nullified, and OSPs would thus lack the incentive to assist rightsholders with the efficient

removal of infringing content, thereby harming both parties.

701

Similarly, Facebook explains that

“platforms need the latitude to optimize the appearance and organization of user-generated

content in a manner they deem appropriate and that users expect” by controlling the presentation

of content.

702

In its comments, the Kernochan Center notes the tension between section 512(c)(1)(b) and

other provisions of section 512(c), noting that “[t]o qualify for the statutory exemption . . . the

service provider must have the ability to block access . . . . [b]ut if the ability to block access also

meets part of the standard for disqualification from the exemption, then the statute would be

incoherent.”

703

Thus, the Kernochan Center reasons, the “right and ability to control” provision

“must mean something more than [the] ability to block access.”

704

Addressing this question, the Second Circuit in Viacom acknowledged that “[t]he general

rule with respect to common law codification is that when ‘Congress uses terms that have

accumulated settled meaning under the common law, a court must infer, unless the statute

otherwise dictates, that Congress means to incorporate the established meaning of those

terms.’”

705

Nonetheless, the Second Circuit rejected “the common law vicarious liability standard,

[that] the ability to block infringers’ access to a particular environment for any reason whatsoever

is evidence of the right and ability to supervise.”

706

Instead, the court found that section

512(c)(1)(B) “requires something more than the ability to remove or block access to materials

posted on a service provider’s website,” such as the “service provider exerting substantial

influence on the activities of users.”

707

700

CCIA Initial Comments at 22–23.

701

See CCIA Initial Comments at 22–23.

702

Facebook Initial Comments at 9.

703

Kernochan Initial Comments at 14.

704

Kernochan Initial Comments at 14.

705

Viacom, 676 F.3d at 37 (quoting Neder v. U.S., 527 U.S. 1, 21 (1999)).

706

Id. (quotation marks omitted) (quoting Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 124, 157 (S.D.N.Y. 2009)).

707

Viacom, 676 F.3d at 38 (citations omitted); see also Veoh IV, 718 F.3d at 1030 (concluding that the ability to remove

infringing content or search for it, to implement filtering systems, or to enforce rules against types of content do not

meet the threshold for the right and ability to control); Viacom Int’l Inc. v. YouTube, Inc., 940 F. Supp. 2d 110, 119–21

(S.D.N.Y. 2013) (concluding that “YouTube’s decisions to remove some but not all infringing material, by its efforts to

organize and facilitate search of the videos appearing on the site, and by its enforcement of rules prohibiting, e.g.,

pornographic content” did not amount to substantial influence); Greg Young Publ'g, Inc. v. Zazzle, Inc., No. 2:16-CV-

04587, 2017 WL 2729584, at *8 (C.D. Cal. May 1, 2017) (noting that “‘[s]ubstantial influence’ . . . will be found where the

service provider plays an active role in selecting, monitoring, or marketing user content”).

U.S. Copyright Office Section 512 Report

133

Justifying this “something more” requirement, the Second Circuit explained that adoption

of the common law vicarious liability standard would “render [section 512] internally

inconsistent.”

708

In support of this conclusion, the Second Circuit pointed to section 512(c)(1)(C),

which requires OSPs to “expeditiously . . . remove, or disable access to” material claimed to be

infringing upon notice, in order to qualify for the safe harbor. The Second Circuit reasoned that

an OSP, upon taking such an action, would be “admitting the ‘right and ability to control’ the

infringing material” and thus disqualified under section 512(c)(1)(B).

709

The court said that “if

Congress had intended [section] 512(c)(1)(B) to be coextensive with vicarious liability, ‘the statute

could have accomplished that result in a more direct manner.’”

710

The Ninth Circuit in Veoh IV,

citing Viacom, likewise held that in order to have the “right and ability to control,” the OSP must

exert “substantial influence on the activities of the users” and such substantial influence may

include “high levels of control over activities of users . . . [o]r it may include purposeful

conduct.”

711

In the few cases finding that an OSP had a right and ability to control the infringing

activity, the courts appear to have required affirmative steps by the OSP, entailing some active

involvement in the infringing activity.

712

For example, the Ninth Circuit in Fung found an OSP to

have had “control” under section 512(c)(1)(B) because he “organized torrent files on his sites

using a program that matches file names and content with specific search terms describing

material likely to be infringing . . . [and] personally assisted [users] in locating [likely infringing]

files.”

713

As this activity “went well beyond merely locating and terminating users’ access to

infringing material,” the court found that Fung’s activity met the “right and ability to control”

prong of section 512(c)(1)(B).

714

The Copyright Office does not believe that Congress intended to subject an OSP to liability

under section 512(c)(1)(B) for either operating in the normal course of business or complying with

708

Viacom, 676 F.3d at 37.

709

Id. (citing 17 U.S.C. §§ 512(c)(1)(A)(iii), (c)(1)(C)).

710

Id. (quoting Veoh III, 667 F.3d at 1045). See also Corbis Corp., 351 F. Supp. 2d at 1110 (“Courts have routinely held that

the right and ability to control infringing activity, as the concept is used in the DMCA, cannot simply mean the ability

of a service provider to remove or block access to materials posted on its website or stored in its system.”) (quotation

marks omitted).

711

Veoh IV, 718 F.3d at 1030 (citations omitted).

712

See Fung, 710 F.3d at 1046; Greg Young Publ'g, 2017 WL 2729584, at *8 (finding the defendant had “the right and

ability to control the types of products it produced” because the defendant was “actively involved in selecting the

products that are sold, pricing those products, selling the products, manufacturing the products, inspecting the

products, and finally packaging and delivering the products.”); Gardner v. CafePress Inc., No. 3:13-CV-1108, 2014 WL

794216, at *9 (S.D. Cal. Feb. 26, 2014) (stating that being “actively involved in the listing, sale, manufacture, and delivery

of items offered for sale” on one’s website may provide a defendant with the right and ability to control).

713

Fung, 710 F.3d at 1046.

714

Id.

U.S. Copyright Office Section 512 Report

134

a takedown notice. But the Office is not sure that current interpretations of this section are fully

in line with congressional intent.

With respect to the financial benefit prong, although most courts appear to adhere to the

common law standard,

715

the Copyright Office questions the Central District of California’s

formulation of the financial benefit prong as requiring a plaintiff to show a direct link between

the financial benefit and the infringing material at issue in the case.

716

There does not appear to be

support for such a requirement in either the common law of vicarious liability or the legislative

history of section 512. Nor do the cases cited by the Central District support this proposition. For

example, one of the cases the court cites to for this interpretation of financial benefit is Napster

717

The Central District of California appears to be the only court to interpret the cited language,

namely that “[f]inancial benefit exists where the availability of infringing material acts as a ‘draw’

for customers,” as requiring a showing that customers of the site value not just infringing material

generally, but the plaintiff’s material specifically.

718

The Central District’s standard is not only

unsupported, but would be fundamentally unworkable in practice. Trying to parse the exact

infringing work that drew a particular user to a site would be nearly impossible, unless the

plaintiff went through the time and expense of identifying and deposing a large number of the

site’s users. Placing such a requirement on a plaintiff would be at odds with the animating

purpose underlying vicarious liability.

719

Instead, the Office is of the opinion that a more

appropriate test for financial benefit is to ask whether the existence of infringing material on the

site is one of the primary draws for users, and whether the plaintiff’s works were infringed by

being performed or distributed through the site.

The Copyright Office acknowledges that determining the proper standard for the right

and ability to control prong is somewhat more difficult, and concedes that there is some degree of

715

The Second Circuit has formulated the common law test as: “[w]hen the right and ability to supervise coalesce with

an obvious and direct financial interest in the exploitation of copyrighted materials—even in the absence of actual

knowledge that the copyright monopoly is being impaired—the purposes of copyright law may be best effectuated by

the imposition of liability upon the beneficiary of that exploitation.” Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d

304, 307 (2d Cir. 1963) (internal citations omitted).

716

Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098, 2014 WL 8628031, at *4 (C.D. Cal. Nov. 14, 2014), aff'd, 847 F.3d 657

(9th Cir. 2017). Cf. H.R. REP. NO. 105-551, pt. 1, at 25–26 (1998) (noting that financial benefit would “include any such

fees where the value of the service lies in providing access to infringing material,” rather than a specific piece of

infringing material) (emphasis added).

717

Napster, 239 F.3d 1004 (9th Cir. 2001).

718

Perfect 10, Inc. v. Giganews, Inc., No. CV 11-07098, 2014 WL 8628031, at *3–*4 (C.D. Cal. Nov. 14, 2014), aff'd, 847 F.3d

657 (9th Cir. 2017).

719

As the Supreme Court noted, “[w]hen a widely shared product is used to commit infringement, it may be impossible

to enforce rights in the protected work effectively against all direct infringers, [so that] the only practical alternative [is]

to go against the device’s distributor . . . for secondary liability on a theory of contributory or vicarious infringement.”

Grokster, 545 U.S. at 929–30.

U.S. Copyright Office Section 512 Report

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tension between section 512(c)(1)(B) and other provisions in section 512.

720

Nonetheless, the

Office is unconvinced that Congress, in drafting section 512, intended to abrogate the common

law standard for right and ability to control to require “something more.”

721

For this reason, the

Office is of the opinion that the right and ability to control prong should correctly be interpreted

in accordance with the common law standard.

722

This does not mean, however, that OSPs could (or should) be held liable merely because

they have the “ability to block infringers’ access to a particular environment for any reason

whatsoever.”

723

Those courts that have found a right and ability to control under a test other than

that articulated in Viacom and Veoh IV have done so upon a showing of something more than

having the ability to deny admittance to the general public.

724

Outside of the section 512 cases,

courts generally have not found that defendants had a right and ability to control based merely

on a showing that the defendants could control what members of the public access their facilities.

Instead, such decisions typically rest upon a finding that a contractual or other close relationship

exists between the infringer and the defendant, such as a concessionaire that rents space inside of

a department store

725

or a band that is managed by and performs at a concert promoted by the

defendant.

726

Even the line of dance hall cases, which are typically cited for the proposition that

right and ability to control results when the defendant has an ability to “control the premises,” in

fact provide secondary liability for the actions of performers chosen and allowed to perform by

the owner, not the actions of general members of the public who happen to be in attendance.

727

720

As we have shown throughout this Report, this tension is not an uncommon occurrence.

721

Neder v. U.S., 527 U.S. 1, 21 (1999).

722

The Office is sympathetic to concerns that adoption of the common law standard could significantly broaden the

number of OSPs that may find themselves liable under section 512(c)(1)(B). The Office is not convinced, however, that

the threat is as great as the Second Circuit, and some stakeholders, envision. Importantly, the right and ability to

control the infringement is not the only element a plaintiff would need to show in order to hold an OSP liable. The

Office finds it noteworthy that neither the Second and Ninth Circuits, nor the stakeholders that raise the specter of

liability gone wild, address the limiting effect of the financial benefit prong. Certainly, if courts began to significantly

loosen the standard for determining whether an OSP’s financial benefit is directly related to infringing material that

appears on its site, such a fear would not be unfounded. However, such an expansion of the doctrine would be

incompatible with both the common law articulation of the standard and the clear legislative history of section 512.

723

Viacom, 676 F.3d at 37 (quoting Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 124, 157 (S.D.N.Y. 2009)).

724

See, e.g., Cybernet, 213 F. Supp. 2d at 1173 (finding the OSP to have a right and ability to control where it instituted a

monitoring program that provided users with “detailed instructions regard[ing] issues of layout, appearance, and

content,” forbade certain content, and actively denied access to users who failed to comply with its instructions). One

of the more expansive definitions that the Office identified during the Study was from the Ninth Circuit’s opinion in

Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146 (9th Cir. 2007). There, the court held that “right and ability to control”

can be found when the defendant has “a closed system requiring user registration, and could terminate its users’ accounts

and block their access to the [defendant’s] system.” Id. at 1174 (emphasis added) (citations omitted). Even this

standard, however, requires more than the mere ability to block users from the site.

725

H.L. Green Co., 316 F.2d at 308–09.

726

Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1160–63 (2d Cir. 1971).

727

See, e.g., Dreamland Ball Room, Inc. v. Shapiro, Bernstein & Co., 36 F.2d 354, 355 (7th Cir. 1929).

U.S. Copyright Office Section 512 Report

136

For this reason, the Office is not convinced that the proper standard should be significantly

broader than that articulated by the Second and Ninth Circuits. Vicarious liability should not

extend to merely providing a service that has potentially infringing uses; as the Supreme Court

noted, it is properly limited to “instances of more acute fault than the mere understanding that

some of one’s products will be misused.”

728

For this reason, while the Copyright Office acknowledges that there could be some room

for Congressional clarification to resolve the perceived tension between section 512(c)(1)(B),

section 512(m), and the common law standard for vicarious liability, the Office cautions that

lowering the bar for either “financial benefit” or “right and ability to control” too far may overly

disrupt the financial risk calculation underlying some online services developed since the

enactment of section 512. Because most OSPs are for-profit (or at least display ads), significant

expansion of this doctrine could threaten to swallow the safe harbors, creating significant tension

between the two fundamental goals outlined by Congress when adopting the section 512

framework. For this reason, the Office is of the opinion that modifications to section 512(c)(1)(B)

would have less beneficial impact on restoring the section 512 balance than other options

discussed in this Report.

* * *

Overall, the Copyright Office finds that the cumulative effect of courts’ interpretations of

how an OSP qualifies for a particular safe harbor, what the OSP’s obligations are with respect to

repeat infringers, and the application of the various safe harbor exclusions in section 512(c)(1) has

been to increase the burden on rightsholders seeking to enforce their rights online. The

cumulative effect has been to either broaden the safe harbors or narrow the safe harbor

exclusions, ultimately altering the balance of the equities as originally weighed by Congress in

1998. The Copyright Office therefore would support a Congressional effort to clarify select

provisions of section 512 in order to restore its original balance.

2. Notice-and-Takedown Process

In addition to looking at the scope and qualifications for the section 512 safe harbors, the

Study examined various aspects of the notice-and-takedown process itself. Congress envisioned

the notice-and-takedown process as “a formalization and refinement of a cooperative process that

has been employed to deal efficiently with network-based copyright infringement.”

729

Does the

notice-and-takedown process today operate in a manner that fulfills this vision?

728

Grokster, 545 U.S. at 932–33. One potential option for addressing this concern could be to add an additional prong to

the test, utilizing language similar to that of § 1201(a)(2) to evaluate whether the OSP’s service is “primarily designed”

to facilitate infringement or “has only limited commercially significant purpose or use” other than to facilitate

infringement. 17 U.S.C. §§ 1201(b)(1)(A), (B). Such a change would be consistent with the vicarious liability standard

articulated by the Supreme Court in Bexamax, 464 U.S. 417, 439–43 (1984).

729

S. REP. NO. 105-190, at 45 (1998); H.R. REP. NO. 105-551, pt. 2, at 54 (1998).

U.S. Copyright Office Section 512 Report

137

Rightsholders generally note that large-scale infringement has rendered the notice-and-

takedown process as “burdensome and ineffective”

730

in addressing online infringement,

highlighting the sheer number of notices and the time, financial resources, and effort demanded

by the process.

731

Rightsholders also extensively discussed the impact of certain judicial

interpretations of section 512 that have shaped the functioning of the notice-and-takedown

process, asserting that the result of such rulings is that courts have wrenched the notice-and-

takedown process out of alignment with Congress’ initial intentions.

732

OSPs report, however, that the growth in the volume of notices does not reflect a growth

in infringement but 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.”

733

One OSP asserts in its comments that changes to the current system, such as

legislative prescriptions of uniformity in the takedown process, “ultimately would interfere with,

rather than promote, positive innovation for all relevant stakeholders.”

734

Another OSP cautions

against changes to the current notice-and-takedown practice, which would upset the balance of

the “roles, responsibilities, liabilities and immunities of all impacted stakeholders.”

735

The following sections will examine the statutory framework of the notice-and-takedown

process, including provisions relating to (a) notice requirements, (b) representative list and

identifiable location information, (c) knowing misrepresentation and good faith requirements,

(d) fair use, (e) adoption of non-section 512 notification requirements by some OSPs, and (f)

timeframes in the notice-and-takedown process. This includes examining the market factors,

technological developments, and judicial interpretations of section 512 that have shaped these

various parts of the process.

730

AAP Initial Comments at 5.

731

See Copyright Alliance Initial Comments at 9.

732

See, e.g., MPAA Initial Comments at 18 (“First, if courts interpreted section 512’s knowledge, representative list, and

expeditious removal requirements as Congress intended, the notice-and takedown process would be more effective.”);

UMG Initial Comments at 2 (“Instead, the protections of Section 512, as interpreted by the courts, have overwhelmingly

favored online service providers, imposed enormous burdens on copyright owners such as UMG, and fundamentally

skewed the marketplace for music content.”).

733

CCIA Initial Comments at 8. Certainly, larger rightsholders are increasingly relying on automated infringement

detection systems to locate material for which they will then issue takedown notices. Tr. at 32:9–11, 33:5–13 (May 13,

2016) (Gabriel Miller, Paramount Pictures Corp.); Tr. at 31:1–10 (May 2, 2016) (Deborah Robinson, Viacom). But such

use of automated tools and enforcement vendors cannot be said to have trickled down to smaller and individual

rightsholders. See Tr. at 75:4–8 (May 2, 2016) (Natalie Madaj, NMPA) (“NMPA probably falls somewhere between the

level of resource we’re able to contribute between individual creators and larger organizations and that we do not use

the automated processes.”).

734

Facebook, Inc., Additional Comments Submitted in Response to the U.S. Copyright Office’s Nov. 8, 2016, Notice of

Inquiry at 5 (Feb. 21, 2017) (“Facebook Additional Comments”).

735

Microsoft Initial Comments at 12–13.

U.S. Copyright Office Section 512 Report

138

a) Notice Requirements

Congress formalized the intended cooperation between rightsholders and OSPs with

statutory requirements for a takedown notice. A compliant notice must include “substantially the

following” elements: (i) the signature of the copyright owner or authorized agent; (ii)

identification of the copyright-protected work allegedly infringed or, for multiple works, “a

representative list”; (iii) identification of the infringing material or activity sufficient for the OSP

to locate the material; (iv) contact information for the copyright owner or authorized agent; (v) a

statement of “a good faith belief that use of the material in the manner complained of is not

authorized by the copyright owner, its agent, or the law”; and (vi) a statement that the

information is accurate and, under penalty of perjury, that the complaining party is authorized to

act.

736

A takedown notice that does not substantially comply with these requirements will not,

on its own, be interpreted to provide the OSP with actual or red flag knowledge.

737

However,

OSPs that want to avail themselves of a safe harbor are required to “promptly attempt[] to contact

the person making the notification or take[] other reasonable steps to assist in the receipt of

notification that substantially complies with [clauses (ii), (iii), and (iv)].”

738

Congress specified a

substantial compliance standard “so that technical errors (such as misspelling a name, or

supplying an outdated area code if the phone number is accompanied by an accurate address,

supplying an outdated name if accompanied by an email address that remains valid for the

successor of the prior designated agent or agent of a copyright owner) do not disqualify service

providers and copyright owners from the protections afforded under subsection (c).”

739

The

Office has not found a case in which failure to follow up on a deficient notice was ultimately held

to abrogate the OSP’s immunity.

740

Generally, courts have properly noted that a takedown notice must contain substantially all

of information listed in section 512(c)(3). As the Fourth Circuit stated, “the DMCA requires that a

means that comport with the prescribed format only ‘substantially,’ rather than perfectly.”

741

Additionally, as the D.C. Circuit noted, the legislative history indicates “that ‘technical errors . . .

such as misspelling a name’ or ‘supplying an outdated area code’ will not render ineffective an

736

17 U.S.C. § 512(c)(3)(A).

737

17 U.S.C. § 512(c)(3)(B)(i).

738

17 U.S.C. § 512(c)(3)(B)(ii).

739

S. REP. NO. 105-190, at 47 (1998); see also H.R. REP. NO. 105-551, pt. 2, at 56 (1998).

740

But see Cybernet, 213 F. Supp. 2d at 1180 (failure to follow up as required by section 512(c)(3)(B)(ii), when combined

with imposition of notice standards more stringent than those set out in section 512(c)(3), resulted in a finding that the

defendant “failed to structure a notice system that complies with section 512.”).

741

ALS Scan, Inc. v. RemarQ Cmtys., Inc., 239 F.3d 619, 625 (4th Cir. 2001).

U.S. Copyright Office Section 512 Report

139

otherwise complete § 512(c)(3)(A) notification.”

742

Some courts have gone further, and required

that the information must appear within the four corners of the notice for that request.

743

The substantial compliance doctrine was not a major focus of stakeholder comments in the

Study. Based on the general silence regarding this issue, both rightsholders and OSPs appear to

at least acquiesce to the standard that courts have set.

In contrast, stakeholders on all sides of the issue offered opinions on the specificity of the

information that must be included in a compliant notice, which has been a frequent source of

frustration and litigation among stakeholders. In particular, Study participants disagree

regarding the definitions of “representative list” and “identifiable location,” and the activities that

qualify as misrepresentation or good faith in notice sending.

b) Representative List and Identifiable Location

As noted above, section 512 contains multiple requirements a rightsholder must meet for a

notice to be deemed compliant. In addition to information about the copyright owner and its

rights, section 512(c)(3)(A) contains two provisions that require information about the work that

has been infringed and the location of the infringing material: first, “[i]dentification of the

copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single

online site are covered by a single notification, a representative list of such works at that site”

744

(referred to herein as the “representative list” provision); and second, “[i]dentification of the

material that is claimed to be infringing or to be the subject of infringing activity and that is to be

removed or access to which is to be disabled, and information reasonably sufficient to permit the

service provider to locate the material”

745

(referred to herein as the “identifiable location”

provision). Stakeholders sharply disagree, however, on what constitutes a representative list, and

whether something less than specific URLs for every piece of material satisfies the identifiable

location requirement as sufficient notice.

746

In their comments, both rightsholders and OSPs tended to collapse their analysis of the

“representative list” provision, which addresses the identification of the copyrighted works, with

the “identifiable location” provision, which addresses the OSP’s ability to identify the location of

742

Recording Indus. Ass'n of Am., Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229, 1236 (D.C. Cir. 2003) (citing S. REP. NO.

105-190, at 47 (1998); H.R. REP. NO. 105-551, pt. 2, at 56 (1998)).

743

See CCBill, 488 F.3d at 1112. In CCBill, the Ninth Circuit noted, as a policy matter, that though the plaintiff provided

all the information required under section 512(c)(3), that information was spread across separate notices, submitted

over the course of 14 months, and that “[p]ermitting a copyright holder to cobble together adequate notice from

separately defective notices also unduly burdens service providers.” Id. at 1113.

744

17 U.S.C. § 512(c)(3)(A)(ii).

745

17 U.S.C. § 512(c)(3)(A)(iii).

746

Compare CCIA Initial Comments at 19, and Facebook Initial Comments at 7, and Google Initial Comments at 12, with

Authors Guild Initial Comments at 16, and c3 Initial Comments at 26, and UMG Initial Comments at 27.

U.S. Copyright Office Section 512 Report

140

the material that infringes those works.

747

This resulted in each side either relying on the

“identifiable location” provision to interpret “representative list” or vice versa.

For example, OSPs and user advocacy groups in their representative list analysis often

emphasize the obligations of the identifiable location provision when discussing what qualifies as

a representative list. Some OSPs go so far as to argue that the identifiable location requirement in

fact prohibits the use of a representative list of copyrighted works.

748

Most of the OSPs interpret

the identifiable location provision to require, at a minimum, identification of specific URLs or file

locations at which the infringing material reside.

749

According to one OSP, “anything other than

specific, individual URLs makes the identification and removal of allegedly infringing content

extremely difficult, if not impossible,” due to the time required to investigate and identify each

instance in which the allegedly infringing content may appear on the platform and to determine

whether that use is authorized.

750

Furthermore, OSPs assert that an absence of specific location

identification information would shift the burden on to OSPs to monitor their services in

contravention to section 512(m).

751

According to one OSP, interpreting “representative list” and

“identifiable location” to require an OSP to search and monitor its platform for all works

potentially identified in the list would be inconsistent with this provision.

752

Beyond textual arguments, several OSPs argue in favor of requiring rightsholders to

provide specific URLs on practical or policy grounds. One OSP states that “it is imperative that

rightsholders provide specific details on allegedly infringing content in order for the system to

work,” otherwise “content matching a vague description would have to be taken down, resulting

747

See, e.g., Copyright Alliance Initial Comments at 18; Facebook Initial Comments at 7; Internet Association Initial

Comments at 18–19; ICC Initial Comments at 4; Kernochan Initial Comments at 10–11; MPAA Initial Comments at 5;

SiteGround, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Apr. 1,

2016); UMG Initial Comments at 27; Wikimedia Foundation, Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015, Notice of Inquiry at 11 (Apr. 1, 2016) (“Wikimedia Initial Comments”).

748

See, e.g., Facebook Initial Comments at 7 (stating that “a rights owner’s failure to specifically identify all infringed

works (and thus all instances of infringement) compels the very proactive monitoring that section 512(m) expressly

does not require”); Wikimedia Initial Comments at 11 (stating that rightsholders “should be required to provide

specific links to each file they want taken down, as well as provide links to the copyrighted works they claim are

infringed”) (emphasis added).

749

See, e.g., SoundCloud Initial Comments at 12; Wikimedia Initial Comments at 11; Tr. at 225:22–226:12 (May 12, 2016)

(Brian Willen, Wilson Sonsini Goodrich) (stating that the combination of the identifiable location provision with section

512(m) results in the conclusion that “the burden and the responsibility is on the copyright owner to identify the

instances by URL or some other mechanism that points directly to the material that they consider to be unlawful.”). But

see Internet Association Initial Comments at 19 (stating that even a URL plus identification of a particular artist that

should be removed is insufficient, because “[o]ne URL may contain links to hundreds of pages and sources of

content.”).

750

SoundCloud Initial Comments at 12–13.

751

See, e.g., CCIA Initial Comments at 19; Facebook Initial Comments at 7; see also supra n.591.

752

Google Initial Comments at 12.

U.S. Copyright Office Section 512 Report

141

in many improper removals of content.”

753

A lack of specificity in the notice, they argue, “would

inevitably result in the censorship of lawful online content, thus harming the public interest.”

754

These OSPs support this position by arguing that the rightsholder is in “the best position to

identify infringing uses of their own works” ensuring the balance of shared responsibilities on

which the notice-and-takedown framework is predicated.

755

In contrast, many rightsholders argue that interpreting the identifiable location provision

to require notices to contain the specific URL of each instance of infringement is, in fact,

incompatible with the representative list provision.

756

Parsing the interrelation between the two

provisions, one rightsholder argues that:

It is critical to note in this regard that the [representative list] provision refers to use of a

representative list of works at “a single online site,” not at “a single online location.” . . . .

This provision should not be read as inconsistent with the requirement of Section

512(c)(3)(A)(iii) for a notification to include information “reasonably sufficient” to permit

the service provider to locate the material claimed to be infringing. Instead, it suggests

that, upon receipt of a notification including a “representative list,” a service provider

should review its site for such infringing materials, possibly including infringements of

works that are not explicitly identified in the representative list but of which the list is

“representative.”

757

Collapsing the two standards, rightsholders argue, renders the representative list

provision “meaningless as rights holders are now obligated to provide specific notice for each

infringing work.”

758

Rightsholders also reject an interpretation of identifiable location that

requires a notice to identify every instance of infringing material appearing on a site by (file-

specific) URL in order to be compliant.

759

While one rightsholder notes that “a complete list

753

Amazon Initial Comments at 8–9.

754

Internet Association Initial Comments at 9.

755

ICC Initial Comments at 5. Similarly, the district court in Perfect 10, Inc. v. Giganews, Inc. found that if the OSP,

instead of the rightsholder, had to find and identify “Message-IDs,” unique identifiers for content on its service, “for

the hundreds of millions of messages identified in DMCA notices it has received, it would not be able to function.”

Giganews, 993 F. Supp. 2d at 1201.

756

See, e.g., UMG Initial Comments at 28 (“But limiting the takedown obligation to only specifically-identified

infringements renders the ‘representative list’ provision of the preceding statutory section a dead letter; if a copyright

owner can provide a ‘representative’ (e.g., non-exhaustive) list of works, but the service provider is required only to

take down specifically-identified works at specifically-identified locations on the website, then the ‘representative list’

provision is meaningless.”).

757

AAP Initial Comments at 10.

758

Id.; see also MPAA Initial Comments at 25.

759

See, e.g., A2IM Music Community Initial Comments at 17; MPAA Initial Comments at 23 (“The statute on its face

does not require the copyright owner to reference a specific file; the statute discussed ‘activity’ claimed to be infringing.

There is therefore no reason to conclude that Congress intended its reach to be limited to specific URLs.”); UMG Initial

Comments at 28 (“There is no reason to believe that the copyright owner could [locate specific instances of infringing

U.S. Copyright Office Section 512 Report

142

detailing every infringing copy of every work on sites replete with infringement” is impractical,

760

another explains in its comment that “creators too often lack the time, money, and resources to

list with specificity every single URL containing infringing copies of their work,” resulting in a

burden that ultimately discourages creators from enforcing their rights.

761

Court interpretations of the two provisions have done little to clarify the interrelationship

between the representative list and the identifiable location provisions. Only a few courts have

directly addressed the question of what constitutes a representative list. The Office is aware of

only two instances (excluding cases overturned on appeal) in which a court found that the

plaintiff’s representative list was sufficient for the notice to comply with section 512(c)(3)(A).

762

one, the Fourth Circuit found the notice sufficient, stating:

This subsection [section 512(c)(3)(A)] specifying the requirements of a notification does not

seek to burden copyright holders with the responsibility of identifying every infringing

work—or even most of them—when multiple copyrights are involved. Instead, the

requirements are written so as to reduce the burden of holders of multiple copyrights who

face extensive infringement of their works. Thus, when a letter provides notice equivalent

to a list of representative works that can be easily identified by the service provider, the

notice substantially complies with the notification requirements.

763

In contrast, a few district court cases have rejected plaintiffs’ attempts at providing a

representative list using an analysis that collapses the representative list and identifiable location

requirements. For example, the Southern District of New York found that “a bare list of musical

artists whose songs were allegedly linked to did not constitute a representative list of works, or

material] any more readily than the service provider, and that should be the standard: provide sufficient information

to permit the service provider to locate and identify infringing files as readily as the copyright owner could.”) (citation

omitted).

760

Authors Guild Initial Comments at 16.

761

762

See ALS Scan, 239 F.3d at 625; Venus Fashions, 2017 WL 2901695, at *27 (recognizing the distinction of the

representative list and identifiable location tests and citing ALS Scan for the proposition that the inclusion of the

“representative list” language means that a plaintiff is not required to provide specific URLs for each instance of

infringement, and holding that a duty to conduct “a routine search requirement on [defendant] does not run afoul of

the DMCA’s admonition that the provider is not required to continuously monitor its servers for infringement”). A

third case found that the notice requirements imposed by the defendant did not comply with section 512(c)(3)(A)

because the defendant required the specific “web page at which a given [copyrighted] work is located, rather than the

site,” but didn’t ultimately rule on the sufficiency of the plaintiff’s notice. Cybernet, 213 F. Supp. 2d at 1180.

Unsurprisingly, several rightsholders cite the ALS Scan opinion as a preferable interpretation of “representative list.”

See MPAA Initial Comments at 23.

763

ALS Scan, 239 F.3d at 625.

U.S. Copyright Office Section 512 Report

143

notice equivalent to a list of representative works that can be easily identified by the service

provider.”

764

Part of this confusion may stem from the ambiguity of the language used in section

512(c)(3)(A), which requires that a notification include:

(ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple

copyrighted works at a single online site are covered by a single notification, a representative

list of such works at that site, and

(iii) Identification of the material that is claimed to be infringing or to be the subject of

infringing activity and that is to be removed or access to which is to be disabled, and

information reasonably sufficient to permit the service provider to locate the material.

765

Looking at this provision in context, “site” in (ii) would appear to be addressing material located

on the OSP’s site. This fits with the legislative history, which states that “where a party is

operating an unauthorized Internet jukebox from a particular site, it is not necessary for a

compliant notification to list every musical composition or sound recording that has been or

could be infringed at that site, so long as a representative list of those compositions or recordings is

provided so that the service provider can understand the nature and scope of the infringement

being claimed.”

766

But the next provision distinguishes (legitimate) copyrighted works from

material that is claimed to be infringing located on the OSP’s network, stating that a rightsholder

must provide information reasonably sufficient to locate this material.

767

Thus, it would appear

that Congress may have intended to state that, if a given OSP site contains multiple instances of

material that infringes a rightsholder’s copyrighted works, a rightsholder can send a representative

list of copyrighted works they claim[] to have been infringed on the OSP site, with the expectation that

the OSP will remove not just the material that the rightsholder specifically claimed to be infringing

but also any other materials located at that OSP site that are the subject of infringing activity, which

could include other copyrighted works not identified in the representative list of copyrighted works.

But because section 512(c)(3)(A) refers to the material on the OSP’s site as both “copyrighted

works” and “infringing material,” the result is internal inconsistency.

Rather than attempting to untangle the meaning of the representative list requirement,

many courts appear to have instead focused their analysis on the identifiable location

requirement to determine whether a notice is sufficient under section 512(c)(3). A number of

cases interpreting the identifiable location prong require the identification of specific locations of

764

Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, 2002 WL 1997918, at *15 (S.D.N.Y. Aug. 29, 2002); cf. Veoh II,

665 F. Supp. 2d at 1110.

765

17 U.S.C. §§ 512(c)(3)(A)(ii), (c)(3)(A)(iii).

766

S. REP. NO. 105-90, at 46 (1998).

767

Demonstrating the confusion that results from such conflation, one district court stated that section 512(c)(3)(A)(ii)

required ”a ‘representative list’ of infringing works.” Venus Fashions, 2017 WL 2901695, at *23 (emphasis added).

U.S. Copyright Office Section 512 Report

144

infringing material, usually by the URL that corresponds to the file, rather than the page on

which the material appears.

768

The Southern District of New York found that a notice that

contained “merely generic description[s] . . . without also giving the works’ locations . . . would

put the provider to the factual search forbidden by section 512(m).”

769

Such a reading appears, on

the surface, to comport with the legislative history that states that a compliant notice can include

“a copy or description of the allegedly infringing material and the URL address of the location

(web page) which is alleged to contain the infringing material.”

770

In contrast, the Fourth Circuit in ALS Scan allowed the plaintiff to identify two websites

generally, without requiring identification of specific instances or locations of infringement,

finding a statement by the copyright owner that “virtually all the images at the two sites were its

copyrighted material” to be sufficient.

771

Similarly, the district court in Venus Fashions, Inc. v.

ContextLogic, Inc., found that, while the rightsholder did not “provide[] . . . specific Notice of the

URL addresses of the 17,035 Images that [defendant] was able to take down,” the notification was

sufficient, and as a result the defendant “nonetheless has ‘reason to know’ of the continued

Images which have appeared and no doubt will appear on the Wish Website in the future, as well

as the indeterminate number of slightly altered but readily identifiable substantially similar

Images to those noticed that remain.”

772

In a case decided before Viacom, the Southern District of

New York, while rejecting plaintiff’s first two notices that contained a list of artists as not

constituting a representative list, found that plaintiff’s third letter, which contained “printouts of

screen shots of MP3Board’s Web site, on which the [plaintiff] highlighted and placed an asterisk

next to 662 links which the [plaintiff] believed to infringe upon the record companies’ copyrights”

was sufficient to qualify as identifiable location information.

773

768

See, e.g., Capitol Records, Inc. v. MP3tunes, LLC, 821 F. Supp. 2d 627, 643 (S.D.N.Y. 2011) (finding that plaintiff “had to

provide sufficient information—namely, additional web addresses—for [defendant] to locate other infringing

material.”); Perfect 10, Inc. v. Google, Inc., No. CV 04-9484, 2010 WL 9479059, at *8 (C.D. Cal. July 26, 2010) (finding

notices that “lack image-specific URLs” to be among the types of notices that did not provide information reasonably

sufficient for the defendant to locate the infringing material) (emphasis added); cf. Perfect 10, Inc. v. CCBill, LLC, 340 F.

Supp. 2d 1077, 1090 (C.D. Cal. 2004), aff’d in part, rev’d in part and remanded, 481 F.3d 751 (9th Cir. 2007), opinion amended

and superseded on denial of reh’g, 488 F.3d 1102 (9th Cir. 2007) (finding that an email that provided the file location of an

image sufficient to allow the OSP to identify the infringing material, but finding the notice deficient on other grounds).

769

Viacom, 718 F. Supp. 2d at 528–29.

770

S. REP. NO. 105-90, at 46 (1998). By referencing “web page,” however, it appears that Congress intended to refer to

the web page from which the infringing material was linked or displayed (even if that page contains dozens of

instances of infringing material), rather than the specific file location (i.e., abc.com/infringingpage.html, not

abc.com/infringingpage/thisisinfringing.mp3). Nonetheless, many courts appear to have interpreted “URL” as a

reference to the specific file location.

771

ALS Scan, 239 F.3d at 625.

772

Venus Fashions, 2017 WL 2901695, at *23.

773

Arista Records, 2002 WL 1997918, at *9 (“Despite the fact that the [plaintiff] did not provide [defendant] with the

specific Universal Resource Locators (‘URLs’) of the pages to which the links connected, the [plaintiff] provided

[defendant] with the pages on [defendant’s] own site where the links appeared. Overall, the letter and its attachments

U.S. Copyright Office Section 512 Report

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The Office recognizes that teasing out the correct contours of the representative list and

identifiable location provisions is difficult, in large part due to ambiguities in the statutory

language itself, and appreciates that the ultimate interpretation of these provisions will have a

significant impact on the balance of rights and responsibilities between OSPs and rightsholders.

Congress intended the “representative list” provision, along with other components of the notice-

and-takedown framework, to encourage cooperation among rightsholders and OSPs by properly

apportioning the responsibility for identifying and removing allegedly infringing content on the

internet.

774

But the ultimate result of statutory ambiguity has been, in most cases, to collapse the

two provisions, allowing a representative list of copyrighted works, but then rejecting use of that

list to provide notice with respect to infringing materials that are not specifically enumerated and

located.

775

Such a result does not appear to be in keeping with Congress’ original intent, but

addressing any disconnect between application of the statute and congressional intent would

likely require statutory clarification.

Similarly, while Congress originally cited a URL as an “example of such sufficient

information” to allow an OSP to locate the allegedly infringing material, a number of courts have

interpreted this to mean that only a (file-specific) URL can satisfy the location identification

requirement.

776

For this reason, Congress may wish to consider clarifying “information

reasonably sufficient to permit the service provider to locate the material,” including whether a

URL is a necessary identifier or merely an example of the type of information a rightsholder can

provide in a notice, and identifying the level of specificity a notice must meet to qualify under

section 512(c)(3)(A)(iii).

c) Knowing Misrepresentation

Another element that is nearly as important to the adequate functioning of the notice-and-

takedown process is the accuracy and appropriateness of notices and counter-notices, codified in

section 512(f)’s prohibition against the making of knowing misrepresentations in such notices.

Under section 512(f) a person who “knowingly materially misrepresents . . . that material or

activity is infringing” in a notice

777

“shall be liable for damages” incurred as the result of the

identified the material or activity claimed to be infringing and provided information reasonably sufficient to permit

[defendant] to locate the links and thus complied with the DMCA.”) (citations omitted).

774

See H.R. REP. NO. 105-551, pt. 2, at 49 (1998) (“Title II preserves strong incentives for service providers and copyright

owners to cooperate to detect and deal with copyright infringements that take place in the digital networked

environment.”).

775

Kernochan Initial Comments at 11.

776

See H.R. REP. NO. 105-551, pt. 2, at 55 (1998) (emphasis added).

777

Section 512(f) applies to both notices and counter-notices. See Brief for the United States as Amicus Curiae Against

Petition for a Writ of Certiorari at 6, Lenz v. Universal Music Corp., 815 F.3d 1145 (9th Cir. 2016), cert. denied sub nom.,

Universal Music Corp. v. Lenz, 137 S. Ct. 2263 (2017) (“U.S. Lenz Amicus Curiae Brief”), https://www.copyright.gov

/rulings-filings/briefs/lenz-v-universal-music-corp-137-s-ct-2263-2017.pdf (“Section 512(f) provides a cause of action for

U.S. Copyright Office Section 512 Report

146

“service provider relying upon such misrepresentation in removing or disabling access to the

material . . . or ceasing to disable access to it.”

778

Congress believed that misrepresentations in a

notice are detrimental to “rights holders, service providers, and Internet users.”

779

It intended

section 512(f), therefore, to help maintain the balance of responsibilities shared by rightsholders

and service providers by “deter[ing] knowingly false allegations to service providers” and, thus,

“protect[ing] against losses caused by reliance on false information.”

780

During the course of the Study, participants from all sides of the issue offered an

interpretation of the functionality of section 512(f) and suggestions on how it should operate

within the notice-and-takedown framework to deter abusive notices.

781

Participants disagree,

however, over the extent to which section 512(f) in fact deters abusive notices and counter-

notices.

782

Rightsholders generally take the position that section 512(f) poses a significant

deterrent to fraudulent notices without unduly burdening rightsholders and users.

783

OSPs,

however, argue that section 512(f) is “completely toothless”

784

and does not provide an adequate

safeguard for abusive notices.

785

Several participants during the Washington, D.C. roundtable

particularly point out that section 512(f) neither incentivizes potential notice-senders to carefully

consider whether a notice is appropriate nor disincentives others in sending abusive notices.

786

users or copyright owners who are injured by certain misrepresentations in takedown notices and counter

notifications.”).

778

17 U.S.C. § 512(f).

779

S. REP. NO. 105-90, at 49 (1998); H.R. REP. NO. 105-551, pt. 2, at 59 (1998).

780

H.R. REP. NO. 105-551, pt. 1, at 27 (1998).

781

See Authors Guild Initial Comments at 29; Automattic Initial Comments at 2; Copyright Alliance Initial Comments at

28; Engine et al. Initial Comments at 10–11; Internet Archive, Additional Comments Submitted in Response to U.S.

MPAA Initial Comments at 48; Mozilla Initial Comments at 6.

782

A few rightsholders made passing assertions that abusive counter-notices were a problem under the current system.

See A2IM Music Community Initial Comments at 45; American Federation of Musicians (“AFM”) et al., Additional

Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 10–11 (Feb. 21, 2017)

(“AFM Music Community Additional Comments”); AAP, Additional Comments Submitted in Response to U.S.

Alliance, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 9

(Feb. 21, 2017) (“Copyright Alliance Additional Comments”); Sony Additional Comments at 23. However, Study

participants primarily dedicated their discussion of section 512(f) to the issue of abusive takedown notices. The

stakeholder positions reversed.

783

See Authors Guild Initial Comments at 29; Copyright Alliance Initial Comments at 28; MPAA Initial Comments at 48.

784

Internet Archive Additional Comments at 4.

785

See Automattic Initial Comments at 3–5; Engine et al. Initial Comments at 10–11; Mozilla Initial Comments at 6–7.

786

See Tr. at 223:2–5 (Apr. 8, 2019) (Catherine Gellis, The Copia Institute) (stating that “notice and takedown becomes a

weapon that that person can use and abuse, and if [section] 512(f) has no teeth, it’s very easy for them to abuse it”); Tr.

at 211:11–16 (Apr. 8, 2019) (Joseph Gratz, Durie Tangri LLP) (“[Section] 512(f) is not a sufficient deterrent for many

U.S. Copyright Office Section 512 Report

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In support of their position on the lack of effectiveness of section 512(f), several OSPs cite,

in their comments and at the roundtables, evidence they believe highlights the significant number

of inappropriate notices under the current system.

787

Because much of the data relating to notice-

and-takedown requests is not public, it is difficult to ascertain the extent to which some of these

examples are representative of what’s happening in the section 512 ecosystem. The most

comprehensive resource available to research takedown requests is the Lumen database, which

receives most of its data from Google, but does not represent even all of the requests received by

Google.

788

kinds of abusive notices and counter-notifications . . . . The competitive incentives to send bogus . . . notifications and

counter-notifications will become so large that there will all of a sudden be an economic incentive or situations that

support economic incentives for litigation.”); Tr. at 112:3–14 (Apr. 8, 2019) (Douglas T. Hudson, Etsy) (“I’ve heard from

IP owners and marketplaces and others that there’s a dramatic increase in the amount of the fraud in the process.

Fraud in terms of false takedowns, in terms of phishing and scamming . . . . On the other side . . . people are seeing

fraud in counter-notices. I think we need . . . to put some more teeth into the process to protect both copyright owners,

marketplaces and end users.”); Tr. at 18:19–19:2 (Apr. 8, 2019) (Rebecca L. Tushnet, OTW) (“[E]ven very big sites like

ours, which have millions of users, millions of works, can receive very few legitimate takedowns. Amazon Kindle

Worlds, for example, mostly receives anti-competitive takedowns from competing writers trying to get books off the

list.”).

787

See, e.g., EFF Initial Comments at 11–12 (collecting anecdotal evidence of improper takedowns) (citation omitted);

Engine et al. Initial Comments at 9 (“Data from blogging platform Word-Press shows that . . . around 39 percent of

notices it receives are defective or fraudulent.”); Urban et al. Empirical Study at 78 (stating that an analysis of all

takedowns in the Lumen database for a six month period revealed that “one in twenty-five [4%] requests targeted

content that clearly did not match the identified infringed work at all,” and “about a third (31%) [the 4.2% of requests

targeting incorrect content, above, plus 28.4% of requests coded as questionable, minus any duplicates] raised

substantive questions, including problems identifying and locating the disputed works and potential fair use issues”);

Tr. at 458:10–14 (Apr. 8, 2019) (Brian Carver, Google) (“So just in one week last June, when a particular fraudulent

reporter decided to automate their submission process, over 50 percent of the DMCA notices we received that week

were fraudulent, that we were able to detect.”).

788

Urban et al. Empirical Study at 78–79. Professor Urban and her co-authors attempted to utilize the information in

this database to analyze the extent to which improper notices are prevalent under the current system. While their

findings indicate that a not-insignificant portion of individual takedown requests may have important deficiencies, it is

hard to extrapolate from that data the true extent of the problem. For example, the Office notes that the study coded

each instance of alleged infringement contained in a single takedown notice separately. Urban et al. Empirical Study at

155. As Google notes in its comments, during one month in early 2016, Google received notices from “more than 6,000

individuals or entities . . . to request that Google remove from its search index more than 80 million webpages,” which

amounts to approximately 13,300 notices per individual or entity, likely spread out over multiple notices. See Google

Initial Comments at 7. While there were likely fewer notices sent during the period sampled by the Urban study,

without reanalyzing the data to group questionable notices by sender, it is unclear the extent to which a few (either

rogue or unsophisticated) notice senders may be responsible for the 31% of notices that were viewed as raising

substantive questions. The study does note, however, that almost 78% of the nearly 74,000 requests targeting shuttered

file sharing services, which the researchers interpret as raising questions of accuracy, came from a single notice sender.

Urban et al. Empirical Study at 90, figure 6. The 31% of questionable notices also included 13.3% of requests for which

it was “difficult to locate the allegedly infringing material,” which included any notices that linked to aggregator pages

instead of the individual URLs of the infringing files. Id. at 93–94. The researchers identified as “mistargeted”

instances where the allegedly infringed work did not match the allegedly infringing material (4.2% of total notices). But

this number included any notices that listed one work owned by the rightsholder as the allegedly infringed work, but

linked to an instance of allegedly infringing material that featured a different work owned by the same rightsholder.

U.S. Copyright Office Section 512 Report

148

Rightsholders, however, challenge the notion that takedown notices misrepresenting

infringement are common. “In reality,” wrote the Authors Guild, “they are incredibly rare.”

789

The Office acknowledges that an inaccurate notice, however minor, does incur cost for the OSP in

reviewing and evaluating the content of the notice, as well as potentially impacting important free

speech concerns. Some of the individual anecdotes proffered by user advocacy groups likely

represent improper uses of the notice-and-takedown system.

790

However, the Office notes that it

is difficult to ascertain, in the notice-and-takedown system as a whole, either the true rate of

inaccurate notices or the relative frequency of merely inaccurate or incomplete notices versus

notices sent containing knowingly false misrepresentations. Only the latter is covered by the

prohibitions of section 512(f), and only to the extent that the misrepresentation relates to the

assertion that “the material or activity is infringing.”

791

Not unexpectedly, then, OSPs attribute

some of the alleged inadequacy of section 512(f) to the requirement that the sender “knowingly

materially misrepresent[] . . . that material or activity is infringing,” or that the “material or

activity was removed or disabled by mistake or misidentification.”

792

The courts have generally applied a subjective knowledge standard in section 512(f) cases,

asking whether the sender subjectively knew of the misrepresentation, rather than whether an

objectively reasonable person should have known.

793

In Lenz v. Universal Music Corp. and Rossi v.

Motion Picture Association of America, the Ninth Circuit found that a notice sender is liable under

section 512(f) if it had actual knowledge that the assertion in a takedown notice that the material

activity was infringing was false, or was willfully blind to the non-infringing nature of the

Id. at 90–91. Thus, it is difficult to ascertain the extent to which some of these mistargeted notices actually impact

legitimate speech, rather than accidentally sweeping in speech that was nonetheless infringing, although of a different

right than that asserted. It is worth noting that the researcher’s analysis of the data set found that over two-thirds of the

notices were sent to torrent or file search sites, which the study authors note “lend[s] credence to major rightsholder

claims that they focus on unauthorized file-sharing services when sending notices.” Id. at 86–87.

789

Authors Guild Initial Comments at 15; see also AFM Music Community Additional Comments at 11 (charging that

OSPs “grossly exaggerate” the prevalence of erroneous takedown notices).

790

In particular, the Wall Street Journal has published a series of extensively researched articles detailing tactics used by

individuals and reputation management firms to hide or remove negative content. This includes abuses of the notice-

and-takedown process, such as by creating fake websites with “backdated” content that then forms the basis of a

takedown notice. See Rachel Levy, How the 1% Scrubs its Image Online, THE WALL STREET JOURNAL (Dec. 13, 2019 12:18

PM), https://www.wsj.com/articles/how-the-1-scrubs-its-image-online-11576233000; Andrea Fuller et al., Google Hides

News, Tricked by Fake Claims, THE WALL STREET JOURNAL (May 15, 2020 11:43 AM), https://www.wsj.com/articles/google-

dmca-copyright-claims-takedown-online-reputation-11589557001. Such abuses of the DMCA system do call for some

enforcement mechanism. Hundreds or thousands of individual lawsuits under section 512(f), even with heightened

statutory damages or recovery of attorneys’ fees, would not appear to be an effective or efficient deterrent, however. To

the extent that such tactics represent ongoing patterns of abusive business practices, governmental enforcement outside

the context of section 512 would appear to be a better avenue for addressing their proliferation.

791

17 U.S.C. § 512(f)(1).

792

17 U.S.C. §§ 512(f)(1), (2).

793

See, e.g., Tuteur v. Crosley-Corcoran, 961 F. Supp. 2d 333, 342 (D. Mass. 2013); Design Furnishings, Inc. v. Zen Path, LLC,

No. CIV. 2:10-2765, 2010 WL 5418893, at *5 (E.D. Cal. Dec. 23, 2010).

U.S. Copyright Office Section 512 Report

149

material or activity.

794

The Ninth Circuit in Lenz further explained that a willfully blind defendant

is “one who takes deliberate actions to avoid confirming a high probability of wrongdoing and

who can almost be said to have actually known the critical facts.”

795

The subjective knowledge

standard does not result in liability for errors resulting from an inadvertent inaccuracy or lack of

oversight. As explained by the court in Rossi, a notice-sender cannot be liable under section 512(f)

“simply because an unknowing mistake is made, even if the copyright owner acted unreasonably

in making the mistake.”

796

Several OSPs question the effectiveness and appropriateness of the subjective knowledge

standard to the extent that it fails to capture false and abusive notices. One commenter notes that

the subjective knowledge standard renders section 512(f) ineffective because an “objectively

unreasonable takedown notice targeting clearly non-infringing material will not support a §

512(f) claim unless the defendant admits that it knew it sent a false notice.”

797

Another

commenter unequivocally states that the subjective standard, particularly as articulated in Lenz,

“may reward sloppiness and creates a perverse incentive for copyright owners not to learn about

the law before sending a takedown.”

798

One OSP also suggests that since the subjective

knowledge standard shields some instances of objectively false takedown notices from liability,

the penalties should be strengthened in order to provide adequate deterrence.

799

Rightsholders,

conversely, argue that the subjective knowledge standard, as articulated in Lenz and Rossi, is

entirely appropriate. They point out that, if the threshold for a false notice under the statute were

lowered, it would risk subjecting copyright owners to “limitless lawsuits just [for] policing [their]

copyrighted material on the Internet,” on top of the burdens rightsholders already face in

enforcing their rights online.

800

As the United States noted in its amicus curiae brief before the Supreme Court in Lenz, the

plain meaning of the statute gives rise to the conclusion that the knowledge standard under

794

Lenz v. Universal Music Corp., 815 F.3d 1145, 1154–55 (9th Cir. 2016), cert. denied sub nom., Universal Music Corp. v. Lenz,

137 S. Ct. 2263 (2017); Rossi v. Motion Picture Ass’n of Am., Inc., 391 F.3d 1000, 1005 (9th Cir. 2004). The Office notes that a

subjective standard is likewise applied by the Second and Ninth Circuits to determine whether an OSP has actual

knowledge of infringement. See supra section VI.A.1.c.i.(a).

795

Lenz, 815 F.3d at 1155 (quoting Glob.-Tech Appliances, Inc. v. SEB S.A., 563 U.S. 754, 769 (2011)).

796

Rossi, 391 F.3d at 1005.

797

Engine et al. Initial Comments at 10.

798

EFF Initial Comments at 24.

799

See Engine Advocacy, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice

of Inquiry at 15 (Feb. 21, 2017) (“Engine Additional Comments”); see also Facebook Additional Comments at 6 (“Instead

of amending the DMCA, responsibility for more vigorously enforcing section 512(f) and imposing appropriate

sanctions for fraudulent notices should remain with the courts.”); Mozilla Initial Comments at 6. But see Etsy, Inc.,

Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 5 (Feb. 21,

2017) (“Etsy Additional Comments”) (“In theory, [strengthening penalties] would dissuade improper uses of the

DMCA process, but in practice, this is not an adequate safeguard.”).

800

U.S. Copyright Office Section 512 Report

150

section 512(f) is most appropriately viewed as a subjective standard.

801

Black’s Law Dictionary

defines “knowingly” as “[i]n such a manner that the actor engaged in prohibited conduct with the

knowledge that the social harm that the law was designed to prevent was practically certain to

result; deliberately.”

802

Because Congress incorporated objective standards of liability in other

provisions of the DMCA,

803

the fact that it chose not to do so in section 512(f) indicates that

Congress did not want an objective standard of liability for notices and counter-notices.

804

lower knowledge standard, moreover, could potentially raise the risk of liability for even good-

faith notice senders, deterring legitimate takedown or put-back requests and ultimately

undermining the notice-and-takedown framework. Further, as noted earlier, it is not clear to

what extent notices that would violate section 512(f) under a more lenient standard (absent an

expansion of the categories of material misrepresentations beyond those currently articulated in

section 512(f)) are actually a significant problem within the system. If Congress wishes to

reevaluate the purpose and role of section 512(f) to target notices whose inaccuracy stems from

negligence or lack of care in addition to knowingly false assertions by the sender, then it may

consider the adoption of a different standard, such adding liability for “reckless disregard” of the

accuracy of the notice. In such an event, it would be worth evaluating whether knowing or

reckless disregard of falsity should receive the same sanction.

d) Fair Use

Many Study participants raise concerns related to the interplay of “good faith,” fair use,

and misrepresentation, especially in light of the Ninth Circuit’s decision in Lenz.

805

Section

512(c)(3)(A)(v) requires notice senders to include a signed statement, under penalty of perjury,

that they have “a good faith belief that use of the material in the manner complained of is not

801

U.S. Lenz Amicus Curiae Brief at 11–13.

802

Knowingly, BLACK’S LAW DICTIONARY (11th ed. 2019).

803

See 17 U.S.C. § 1202. Section 1202(a) states that “[n]o person shall knowingly and with the intent to induce, enable,

facilitate, or conceal infringement (1) provide copyright management information that is false, or (2) distribute or

import for distribution copyright management information that is false.” A “knowing” violation under section 1202(a)

may be subject to both civil remedies under section 1203 and criminal remedies under section 1204. Section 1202(b), in

contrast, carefully distinguishes between criminal and civil remedies, making criminal remedies available based only

on a “knowing” violation, but making civil remedies available based on an objective “reasonable grounds to know”

standard.

804

See Rossi, 391 F.3d at 1004 (“When enacting the DMCA, Congress could have easily incorporated an objective

standard of reasonableness. The fact that it did not do so indicates an intent to adhere to the subjective standard

traditionally associated with a good faith requirement.”).

805

See, e.g., American Intellectual Property Law Association (“AIPLA”), Additional Comments Submitted in Response to

U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 3 (Feb. 21, 2017) (“AIPLA Additional Comments”); AAP Initial

Comments at 8–9; Engine et al. Initial Comments at 10; Etsy Additional Comments at 8; Kernochan Initial Comments at

8–9; UMG, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at

27 (Feb. 21, 2017) (“UMG Additional Comments”); Verizon Communications, Additional Comments Submitted in

Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at 8 (Feb. 21, 2017) (“Verizon Additional

Comments”).

U.S. Copyright Office Section 512 Report

151

authorized by the copyright owner, its agent, or the law.”

806

The legislative history is silent on

why Congress included this, and makes no mention of any possible interaction between section

512(c)(3)(A)(v)’s good faith requirement and section 512(f)’s prohibition on misrepresentation.

In Lenz, the Ninth Circuit held that “a copyright holder must consider the existence of fair

use before sending a takedown notification under § 512(c),” because fair use is “authorized by the

law,” within the meaning of section 512(c)(3)(A)(v).

807

If the copyright holder does not consider

fair use before sending the takedown notification, then the copyright holder, according to the

Ninth Circuit, may be liable for damages under section 512(f).

808

The court further explained,

however, that the copyright holder would not be liable if they form a subjective good faith belief

that the use does not constitute a fair use, even if the court would later disagree with the fair use

determination.

809

Several participants at the D.C. roundtable addressed the Ninth Circuit’s interpretation of

good faith, questioning the practical application of the court’s determination that a copyright

owner must evaluate whether a use is permitted by the fair use doctrine and affirmatively decide

that it is not before sending a takedown notice.

810

A number of rightsholders were uncertain

about implication of Lenz for their ability to use automated processes to identify infringing

material and send takedown notices.

811

One OSP asserts unequivocally that, under Lenz,

“automated notices should not be considered valid notices, in part because algorithms that

generate automated notices are not able to assess whether a particular use is infringing or might

be lawful,” since “a conclusion [on fair use is one] that is impossible for an algorithm to draw.”

812

Several rightsholders rejoin such an assertion, stating that automated programs, assisted by some

806

17 U.S.C. § 512(c)(3)(A)(v).

807

Lenz, 815 F.3d at 1153.

808

Lenz, 815 F.3d at 1151.

809

Lenz, 815 F.3d at 1153–54.

810

See Tr. at 188:11–14 (Apr. 8, 2019) (Stephen Carlisle, Nova Southeastern University) (“From my standpoint as a

musician or a creator, it’s much easier to figure out whether something’s infringing, than whether something is in fact

fair use.”); Tr. at 185:2–16 (Apr. 8, 2019) (Arthur Levy, Association of Independent Music Publishers (“AIMP”)) (“Lenz is

still a major problem for us . . . . It’s kind of hanging out there as a potential time bomb . . . for small publishers and

certainly for songwriters, who may have just massive amounts of infringing examples of their works out on the

internet.”).

811

See, e.g., AIPLA Additional Comments at 3; AAP Initial Comments at 8–9 (“[The] ability to use an automated process

of notification recently has been clouded by the judicially-imposed requirement that, as part of the notification

requirements under Section 512(c)(3), a copyright owner must consider the applicability of ‘fair use’ before stating that

it has ‘a good faith belief that use of the material in the manner complained of is not authorized by the copyright

owner, its agent, or the law.’”) (citation omitted); Kernochan Initial Comments at 8.

812

Verizon Initial Comments at 16; see also Annemarie Bridy & Daphne Keller, Additional Comments Submitted in

Response to U.S. Copyright Office’s, Nov. 8, 2016, Notice of Inquiry at 2 (Feb. 21, 2017) (“Bridy & Keller Additional

Comments”) (“There is no algorithm that can do the kind of contextual and legal analysis required to identify fair

use.”).

U.S. Copyright Office Section 512 Report

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type of human review either in design or execution, do provide the necessary level of review to

meet section 512’s notice requirements.

813

The Ninth Circuit in Lenz, unfortunately, did not speak

directly to automated aspects of monitoring for infringements and sending notices.

814

As outlined in the United States’ amicus curiae brief in Lenz, the Ninth Circuit’s holding

imports the “good faith belief” standard from section 512(c)(3)(A) into its evaluation of whether

the rightsholder made a knowing representation within the meaning of section 512(f).

815

The

result is placing potential liability on rightsholders who fail to undertake a fair use inquiry before

sending a takedown notice, without regard to whether or not the material is actually infringing.

816

Instead, based on the language of the statute, section 512(f) properly looks to whether the

rightsholder “knowingly materially misrepresent[]” that “the material or activity is infringing”

(or, for counter-notices, that the “material or activity was removed or disabled by mistake or

misidentification”).

817

Thus, to find a rightsholder liable under section 512(f), a court must first

determine whether or not the use is, in fact, infringing, and if not, “whether the copyright owner

made the misrepresentation [regarding the infringing nature of the material” ‘knowingly.’”

818

The

Office suggests that Congress monitor how the courts apply Lenz, and consider clarifying the

statutory language if needed.

e) Extra-Section 512 Processes and Requirements

From the Study submissions, it is apparent that many participants in the notice-and-

takedown system have adapted their practices to accommodate its increasing usage since the

813

See, e.g., Tr. at 15:9–16 (May 13, 2016) (Keith Kupferschmid, Copyright Alliance) (“[Y]ou talk to lawyers and the

response is going to be, gee, how can a computer program possibly do what we can do, which is decide whether

something is fair use or can be used in a context. And I think it absolutely can. It’s just software programs are created

by humans. They can build that into the program to a large extent.”); Tr. at 186:15–21 (Apr. 8, 2019) (Arthur Levy,

AIMP) (“It seems as if language regarding automation has been taken out of the second version of the opinion. That’s a

concern for us. It might very well mean that they’re going to interpret it so that we cannot use automation, which again

increases our cost burden and ability to protect our works.”); Tr. at 102:18-103:3 (May 12, 2016) (Braxton Perkins, NBC

Universal) (“We take great care in putting together an operation that is scalable but yet also accurate. We use a variety

of technologies and automation systems combined with human review. In all cases, the technology is designed by

humans, controlled by humans, aimed by humans. And so therefore, there’s really not a dichotomy of automation

versus humans. You have to use them together.”); Tr. at 237:21–238:2 (Apr. 8, 2019) (Nancy Wolff, DMLA) (“I’m not

sure Lenz has changed the landscape for members of DMLA. They may use image recognition technology to find

matches, but there’s always been a level of human involvement to review.”).

814

See Kernochan Initial Comments at 8 (“The Ninth Circuit’s desistence from articulating ways to balance the

competing concerns of users to avoid the blockage of non-infringing fair use postings on the one hand, and those of

disappointing.”).

815

See U.S. Lenz Amicus Curiae Brief at 17–18.

816

Id. at 17.

817

17 U.S.C. § 512(f).

818

U.S. Lenz Amicus Curiae Brief at 18.

U.S. Copyright Office Section 512 Report

153

DMCA’s enactment.

819

Congress, legislating in a time before the larger platforms received

millions of notices a week, set up a notice system under section 512 premised on written postal or

electronic communications, combined with what they expected to be a minimalist intake process.

For example, section 512 requires OSPs to register with the Copyright Office and to “make

available through its service, including on its website in a location accessible to the public” the

“name, [physical] address, phone number, and electronic mail address” of an agent designated to

receive written takedown notices.

820

The takedown process envisioned in section 512 is similarly

low-tech, with OSPs performing the ministerial actions of: (i) receiving a takedown notice via

email or physical mail, (ii) “expeditiously” removing access to the material, (iii) undertaking

“reasonable steps promptly to notify the subscriber” regarding the removal of the material, (iv)

receiving and forwarding to the rightsholder any counter-notice filed by the subscriber, and (v)

restoring access to material that is the subject of a counter-notice within 10–14 days of receipt of

the counter-notice unless the OSP receives a notice from the rightsholder that it has filed a court

action.

821

Section 512 does not anticipate an OSP taking on the role of adjudicator for

infringement claims, and in fact insulates them from monetary liability for removing access to

material in good faith, “regardless of whether the material or activity is ultimately determined to

be infringing.”

822

Based on the information obtained during the course of the Study, the Office notes that the

mechanisms and requirements for submission of takedown notices, adopted in recent years by

many of the larger OSPs, are no longer in sync with these provisions. Two developments in

particular have reshaped a rightsholder’s experience of submitting a takedown notice under

section 512: (i) the adoption of additional notification requirements by many OSPs, and (ii) the

increasing reliance on web-based submission forms with friction deliberately built into the

process.

While Congress exempted OSPs from liability for the removal of content that ultimately

turns out to be non-infringing, a number of larger OSPs have sought to advance the interests of

their users by attempting to “weed out overbroad and abusive DMCA takedown notices, so that

our users’ speech isn’t needlessly censored.”

823

Rather than engaging in a passive intake and

automatic removal of material in response to a section 512 notice, some OSPs thus have begun

taking a more active role in evaluating the sufficiency of such notices. During the course of the

Study, the Office received information relating to several methods OSPs have deployed to do so.

These methods include:

819

This includes the use of automated identification services by rightsholders and DMCA+ content management

systems, like Google’s Content ID or Facebooks Rights Manager, by OSPs.

820

See 17 U.S.C. § 512(c)(2).

821

See 17 U.S.C. §§ 512(c)(1)(C), (g)(2).

822

See 17 U.S.C. § 512(g)(1).

823

Automattic Initial Comments at 2.

U.S. Copyright Office Section 512 Report

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• Requiring a rightsholder to submit a registration certificate or other “proof” of

ownership before processing a takedown notice;

824

• Adding questions to the notification form requiring the rightsholder to confirm

whether they are the subject of a photograph, combined with “warnings” if they

answer affirmatively;

825

• Sending follow-up emails asking a rightsholder to “provide more detail [to] explain[]”

how they are the copyright owner;

826

• Following up with a rightsholders who submits a takedown notice, or outright

refusing to act upon the takedown notice, if the OSP believes it’s a “case[] of apparent

fair use”;

827

and

• Declining to act on takedown notices that the OSP determines are “directed at clear

fair uses, clearly uncopyrightable content, or contain clear misrepresentations

regarding copyright ownership.”

828

For those OSPs that have launched DMCA+ systems, use of these systems is often predicated on

complying with additional requirements for submission of takedown notices, such as the exact

timestamp of the video at which the infringing content occurs.

829

OSPs offered several defenses for use of these additional notice requirements, including as

a way to address problems with the quality of the takedown notices they receive

830

and to protect

824

See Tr. at 57:14–19 (May 2, 2016) (Lisa Shaftel, Graphic Artists Guild (“GAG”)) (“Creators have found that they can’t

satisfy the requirements from a lot of the ISPs in their takedown notices. In particular, artists have said that many ISPs

have required that they prove copyright registration as part of their takedown notice or other means of proving

ownership of the image.”).

825

See Google Inc., Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of

Inquiry at 9–10 (Feb. 21, 2017) (“Google Additional Comments”) (“The commenter also pointed out that we explain at

the appropriate step in our form that merely being the subject of a photo does not give one a copyright interest in the

photo. In our experience, this warning dramatically cut down on the number of misguided notices. This, in turn,

streamlined the removal process for meritorious notices and decreased our turnaround time for removal of images.”)

(internal citation omitted).

826

Mason Clinic, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of

Inquiry at 28 (Feb. 21, 2017) (“Mason Clinic Additional Comments”).

827

Mason Clinic Additional Comments at 29.

828

Automattic Initial Comments at 6.

829

See Jordan (TeamYouTube), Timestamps and Editing Tools to Help You Resolve Manual Content ID Claims, YOUTUBE HELP:

COMMUNITY (July 9, 2019), https://support.google.com/youtube/thread/9566717 (“Starting today, we’re requiring

their video is being claimed.”).

830

See, e.g., Tr. at 157:15–20 (May 2, 2016) (Rebecca Tushnet, OTW) (noting that such questions are a result of ISPs trying

to educate users, “because when YouTube asks is it a picture of you, the reason they’re asking that is to figure out if it’s

U.S. Copyright Office Section 512 Report

155

free speech.

831

In contrast, rightsholders criticized them as adding unnecessary friction into the

process, resulting in delays up to several days in processing takedown notices.

832

The Office is not

aware of any court cases addressing whether the imposition of such additional requirements are

compatible with maintaining an OSP’s section 512 safe harbors. While OSPs are always free to

decline to participate in the notice-and-takedown system, with the result that they lose the safe

harbor but maintain any other defenses to copyright infringement claims they would otherwise

have,

833

adoption of these additional requirements situates them in a sort of no-man’s land. While

the OSPs don’t formally reject the benefit of the safe harbors, by requiring additional supporting

documentation that goes beyond the requirements of section 512(c)(3), the OSPs do not appear to

be fully honoring the requirement in section 512(c)(1)(C) that, upon receiving a takedown notice

that is compliant with section 512(c)(3), they “respond[] expeditiously to remove, or disable

access to” the material.

834

a copyright claim because people don’t understand that”); Tr. at 161:14–22 (May 2, 2016) (Michael Weinberg,

Shapeways) (“[W]e struggle all the time trying to set a balance between either setting up gates on the front end of that

takedown request process to ask people [‘]are you sure that you’re a copyright holder[’ . . . to] standardize the errors

that we see over and over[,] or working a way in the backend through what is essentially an email conversation to get

from the unstructured complaint that we received initially to something that we’re willing to act on.”). But see Tr. at

69:13–71:13 (May 3, 2016) (Lisa Willmer, Getty Images) (noting that, while rightsholders submitting takedown notices

are provided prompts and educational links during the process, similar prompts are not instituted by OSPs prior to a

user uploading potentially copyrighted content).

831

See, e.g., OTW, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of

Inquiry at 4 (Feb. 21, 2017) (“OTW Additional Comments”) (“Given the abuse of the DMCA to achieve non-copyright

goals that the OTW, Wordpress, Wikipedia, and numerous other ISPs have found, it is not just acceptable to ask certain

submitters for further information such as a copyright registration for the challenged material: it is the only way to

protect free speech online.”) (emphasis in original).

832

See Tr. at 130:7–11 (May 2, 2016) (Hillary Johnson, author) (“I have started initially by sending takedown notices to

Facebook and what I learned was it took about three days of my time to satisfy Facebook’s demands to prove that I was

the author, that I owned the copyright.”).

833

See 17 U.S.C. § 512(l).

834

17 U.S.C. § 512(c)(1)(C). Some rightsholders urge that an OSP that requires such additional proof should thereby

forfeit the benefits of the safe harbors. See Tr. at 48:3–16 (May 3, 2016) (Maria Schneider, musician). At least one court

has found that the imposition of stricter standards than those listed in section 512(c)(3)(A), combined with a failure to

seek additional information from the rightsholder for those notices that substantially comply with the statutory

standards as required by section 512(c)(3)(B)(ii), “leads the Court to conclude that [defendant] has failed to structure a

notice system that complies with section 512.” Cybernet, 213 F. Supp. 2d at 1180. But see Perfect 10, Inc. v. Giganews, Inc.,

No. CV 11-07098, 2015 WL 1746406, at *11 (C.D. Cal. Mar. 6, 2015) (finding that plaintiff’s failure to provide Message-

IDs in the manner required by the OSP’s automated takedown processes did not provide information sufficient to

locate the infringing material, in part because the process that plaintiff chose for providing location information would

have required manual transcription of the Message-IDs by the defendant while the plaintiff could “simply copy-and-

paste the Message-ID,” with the result that “[e]very aspect of [plaintiff’s] . . . notices undermined the fundamental

purpose of the DMCA notice procedure”).

U.S. Copyright Office Section 512 Report

156

The recently-adopted OSP approach that was the subject of the most complaints by

rightsholders, however, was the use of (and various methods to discourage the non-use of)

835

specialized webforms.

836

Several of the larger OSPs have attempted to supplant physical and

email takedown notices with webforms that are integrated into their backends, often coupled

with a series of questions—sometimes across multiple pages or collapsible sections—that the

notice sender must answer to ensure that the claim they are submitting contains the required

information and is appropriate for a section 512 notice.

837

For example, Google’s current online

submission form requires a copyright owner wishing to submit a takedown notice to make five or

more radio button selections before reaching a page that says “Create Request,” after which the

rightsholder must create and log into a Google account and then fill out ten explanation boxes.

838

835

Getty Initial Comments at 4 (“There is no one standard process and each platform creates its own unique submission

form with its own unique submission requirements . . . . Google makes it [difficult] to submit takedown notices by

email, requiring additional hurdles not required by the DMCA.”); Ellen Seidler, Google Really, Really Doesn’t Like You to

Send DMCA Requests Via Email, VOX INDIE (Mar. 18, 2016), http://voxindie.org/google-hates-dmca-emails/ (describing

requirements to complete a takedown notice via email, including a requirement that a rightsholder respond to an auto-

generated email with a statement that “This notice is complete.”).

836

Not all rightsholders took issue with this trend. While many of the Study participants representing smaller

rightsholders took issue with webforms as currently deployed, several of the larger rightsholders expressed

appreciation for additional mechanisms for submitting takedown notices. See, e.g., MPAA Additional Comments at 6

(arguing against requiring standardized takedown processes and stating that any such standardized form “should not

be required of all service providers or copyright owners, in lieu of other, more effective systems”).

837

Those OSPs that have adopted webform submissions differ as to how easy or difficult they make it to submit a

takedown request via one of the statutory mechanisms. At one end of the spectrum, Pinterest’s “Copyright” page

provides a link to its web form as well as the fax number, physical address, and email addresses (but not the phone

number) for its designated agent (the latter with a mailto: link). See Copyright, PINTEREST,

https://policy.pinterest.com/en/copyright. Facebook likewise provides the address, phone number, and (non-mailto:

linked) email address of its designated agent. How Do I Contact Facebook’s Digital Millennium Copyright Act (DMCA)

Designated Agent?, FACEBOOK: HELP CENTER, https://www.facebook.com/help/190268144407210. At the other end of the

spectrum, the Google Help Center entry for takedown notice submissions with respect to non-YouTube products does

not mention the option of submitting a notice to its designated agent. See Removing Content from Google, GOOGLE: LEGAL

HELP, https://support.google.com/legal/troubleshooter/1114905. In fact, Google does not appear to list the address or

email address of its (non-YouTube) designated agent anywhere on its website. A search on google.com for “‘dmca-

agent@google.com’ site:google.com” (the email address registered with the Copyright Office as the designated agent for

Google LLC) returns no results as of May 2020. YouTube, in contrast lists the email address for its designated agent and

also, helpfully, the contact emails for the designated agents of Dailymotion, Facebook, Instagram, Periscope, Twitter,

and Vimeo. See, Answer, “How do I Remove a Copy of My Video from Another Website,” YOUTUBE HELP: FREQUENTLY ASKED

noting that section 512(c)(2) requires OSPs to not just designate an agent with the Copyright Office, but also to display

somewhere on its website in a location accessible to the public “substantially the following information” about that

agent: “name, address, phone number, and electronic mail address.” 17 U.S.C. § 512(c)(2).

838

See Removing Content from Google, GOOGLE: LEGAL HELP, https://support.google.com/legal/troubleshooter/1114905

(last visited May 12, 2020). (This screen was reached from the homepage by clicking “Terms” > “What we expect from

you” > “Copyright Help Center” >“What is ‘Copyright’?” > “legal troubleshooter,” with a few dead ends along the way.

It may be possible to reach this screen with fewer clicks.) From this screen, selecting “Blogger” > “”I would like to

report an intellectual property issue (copyright infringement, circumvention, etc.) > “I have found content that may

violate my copyright” (emphasis added) > “Yes, I am the copyright owner or am authorized to act on the copyright

owner’s behalf” > “Image/Video” > “No” finally reaches a screen with a button that says “Create request.” Clicking on

U.S. Copyright Office Section 512 Report

157

Similarly, Facebook’s online submission form has over a dozen radio buttons, one check box,

three drop down boxes, and nine text entry boxes.

839

Several OSPs assert that these webforms, like the additional notice requirements discussed

above, help to weed out incorrect notices as well as to improve the efficiency of—not to mention

speed up—the takedown process.

840

Not surprisingly, though, OSPs and rightsholders disagree

regarding the extent to which inaccurate or insufficient takedown notices are a problem requiring

technological fixes like web-based takedown forms.

841

Many rightsholders instead point to

webforms as a significant source of inefficiency and needless friction in the notice-sending

process.

842

As one roundtable participant notes, while some OSPs have adopted forms that are

this button should result in the rightsholder reaching a Google account sign in, but certain browser configurations

appear to prevent you from getting past this screen (after clicking “Create request,” the author’s browser was

redirected to Improve Your Performance on Google Search, GOOGLE: SEARCH CONSOLE, https://search.google.com/search-

console/about). Anyone selecting “YouTube” as the product on the first screen is redirected to a Google account sign in

up front.

839

Reporting a Violation or Infringement of Your Rights, FACEBOOK: HELP CENTER,

https://www.facebook.com/help/contact/634636770043106 (last visited May 3, 2020). (This screen was reached from the

homepage by clicking “Help” > “Policies and Reporting” > “Intellectual Property” > “reporting copyright violations” >

“How do I report copyright infringement on Facebook” > “form.”) From here, a rightsholder must select “Copyright” >

“Continue with your copyright report” > “I found content which [sic] I believe infringes my copyright” > “Continue

with my copyright report” > “Contact Information” > “Me or my organization” > [Form asking for a Name, Job

responsibility, Mailing address, Phone number, Email address, Confirm your email address, Name of the Rightsholder]

> “United States” > “Provide the content you want to report” > “Photo, video or post” > [Form to fill in links] > [Drop

down menu for “Why are you reporting this content?”] > “This content copies my work” > “Provide your copyrighted

work” > [Drop down menu for “Which of these best describes your original copyrighted work?] > “Artwork” > [Form

asking “Where can we see an authorized example of your work?”] > “Confirm declaration statement” > “Yes” >

“Electronic signature” > “Submit.”

840

See Facebook Additional Comments at 5 (“Any legislatively prescribed reporting mechanism for takedown reporting

forms, while potentially having the value of uniformity, ultimately would interfere with, rather than promote, positive

innovation for all relevant stakeholders.“); Tr. at 59:8–18 (May 3, 2016) (Matthew Schruers, CCIA) (noting the

frustration of smaller ISPs regarding receipt of “messy hand-written or typed notices that pile on a bunch of different

issues,” and the resulting incentive for ISPs to deploy new technological tools to improve the notice intake process); see

also What Information do I Need to Include in a Copyright Report on Facebook?, FACEBOOK: HELP CENTER,

https://www.facebook.com/help/231463960277847 (last visited May 10, 2020) (touting the form as the “fastest and

easiest way to submit a claim of copyright infringement to us”).

841

Compare Tr. at 160:10–161:13 (May 2, 2016) (Michael Weinberg, Shapeways) (discussing how people attempt to use

the notice-and-takedown system to remove content from the internet for non-copyright reasons), with Tr. at 143:10–16

(May 2, 2016) (Jennifer Pariser, MPAA) (noting that recent Google Transparency Report claimed “hundreds of improper

notices per month,” out of 85 million takedown requests per month).

842

See, e.g., Tr. at 72:4–22 (May 2, 2016) (Stephen Carlisle, Nova Southeastern University) (“[Y]ou are asked a series of

questions to justify your takedown before you can even file your takedown, including [a question about whether you

are] the subject of the photograph, in which, if you say yes, you get this bright red warning saying if you’re the subject

of the photograph, you’re most likely not the copyright owner, as if the selfie had never been invented . . . . Google will

not let you file a takedown notice unless you create a Google account, which requires you to agree to Google’s terms of

service[]. This includes a choice of jurisdiction and venue in Google’s favor. And this is before you even get to the

takedown page.”); Tr. at 133:3–10 (May 2, 2016) (Hillary Johnson, author); Tr. at 59:7–9 (May 2, 2016) (Lisa Shaftel,

U.S. Copyright Office Section 512 Report

158

user-friendly and create dashboards to track the status of notices, other forms “require captchas,

different sort[s] of manual procedures that . . . preclude anyone [sending notices] at scale for

843

Additional rightsholder complaints include that the DMCA information is

too difficult to find on OSP’s websites

844

and that some of the content of the webforms appear

geared towards dissuading a rightsholder from submitting a takedown notice.

845

Of course, both things can be true simultaneously. The Office agrees with many OSPs that

new technologies, like webforms, can, if executed properly, offer benefits like increased efficiency

in ingesting and acting upon takedown notices when compared to the statutory methods of email

and physical mail. The Office also agrees with many rightsholders that the bespoke nature of

each OSP’s webform, combined with DMCA pages that are not readily accessible from the

homepage and do not always contain direct contact information for the OSP’s designated agent,

results in significant increases in the time and effort that must be invested by a rightsholder to

submit a takedown notice.

The Office acknowledges that the use of nonstandard and handwritten takedown notices

requires OSPs to expend additional time and effort to process them, and that some users seek

redress for issues other than copyright through a takedown notice under section 512. To help

alleviate some of this burden in the near term, the Copyright Office will publish standard notice

and counter-notice forms and will develop additional user education materials regarding the

types of notices that are appropriate under section 512.

There is an opportunity, however, for Congress to address the growing disconnect

between a statute written for communications prevalent in the late 1990s and current

technological expectations and capacities while simultaneously creating a more standardized

system that benefits OSPs, rightsholders, and the public. Congress may want to consider a

mechanism for “future-proofing” the standard notice requirements under section 512 by shifting

enumeration of notification methods from a statutory mandate towards a regulatory process. For

GAG) (“Every ISP has a different process. There’s kind of no standardization. And most artists give up.”); Tr. at 20:4–

12 (May 12, 2016) (Devon Weston, Digimarc).

843

Tr. at 20:9–11 (May 12, 2016) (Devon Weston, Digimarc); see also AAP Initial Comments at 7.

844

See Tr. at 71:21–72:3 (May 2, 2016) (Stephen Carlisle, Nova Southeastern University) (“If you go to Google’s filing

with the Copyright Office and say here is where to send your copyright takedown notice, if you copy that and paste

that into your browser, you land on a page that does not take you to a takedown form. It takes you to a page which is

several different pages removed from every getting to the takedown form.”); see also Ellen Seidler, Why Does Google

Make it so Damn Difficult to Send a DMCA Notice?, VOX INDIE (Feb. 24, 2016), http://www.voxindie.org/why-does-google-

make-it-so-damn-difficult-to-send-dmca-notice/ (noting, among other complaints, that “Google makes finding the

correct form a laborious 9 step process”).

845

See Tr. at 64:18–65:1 (May 2, 2016) (Sandra Aistars, Mason Clinic) (“[W]hen you’re submitting a takedown notice,

most sites will, you know, certainly walk you through the requirements of the DMCA takedown notice. Many of them

will emphasize the penalties that might be associated with sending an inaccurate notice, the fact that the notice and

your personal information will be made publicly available, the fact that the notice will be forwarded on to the Chilling

Effects website and so forth.”).

U.S. Copyright Office Section 512 Report

159

example, since section 512 requires only that an OSP’s agent information be “publicly available”

on its website, there is currently no standardized practice for the location or content of user

notifications regarding the takedown process. Further, many websites require navigating

through multiple links (such as “Help” or “Terms of Service”) before reaching the web-based

submission form or designated agent contact information. Congress could modify the language

of section 512(c)(2) to provide that the designated agent’s information be not just “on its website

in a location accessible to the public,”

846

but also “prominently displayed,” and delegate to the

standards. Similarly, Congress may wish to provide the Office with regulatory authority for the

widespread, while sunsetting older, seldom-used methods. In the short term, this could include

an opportunity for adding user-friendly webforms or APIs

847

for submission of takedown notices,

so that OSPs could utilize new(er) technologies to better integrate notices into their backend and

existing workflows. In the long term, it would technology-proof section 512 by allowing older

communications methods (e.g., physical mail in the not-too-distant future, perhaps email at some

subsequent point) to be replaced by new communications methods in the future.

f) Timeframes in Notice-and-Takedown Process

Study participants expressed concerns about several of the timeframes established in

section 512, including what constitutes “expeditious” removal as well as issues related to the 10–

14 day window in which content remains down following a counter-notice.

848

As with many

issues addressed in this Report, a timeframe viewed as too long by some participants was seen as

unacceptably short by others.

The first issue upon which Study participants disagree is the proper interpretation of

“expeditious” under the various safe harbors.

849

Upon obtaining actual or red flag knowledge of

infringing activity, including via a takedown notice sent by the rightsholder, the OSP must act

expeditiously to remove or disable access to the allegedly infringing material in order to qualify for

846

17 U.S.C. § 512(c)(2).

847

APIs are used to enable data exchanges and could allow an organization to submit a single, standardized takedown

notice to a central repository, from which it could in turn be accessed by the appropriate OSP.

848

See, e.g., A2IM Music Community Initial at 19; CCIA Initial Comments at 12; LaPolt Initial Comments at 10; MPAA

Initial Comments at 15; UMG Initial Comments at 15–16.

849

These can be grouped into three categories: (i) provisions protecting an OSP from liability if it “responds

expeditiously to remove, or disable access to, the material that is claimed to be infringing” upon receipt of a takedown

notice; (ii) provisions protecting an OSP from liability if, upon gaining actual or red flag knowledge of infringement, it

“responds expeditiously to remove, or disable access to, the material”; and (iii) provisions relating to aspects of the

process for obtaining a subpoena. For the purposes of this section, the Office focuses on the first two categories. The

provisions that fall under the first category are sections 512(b)(2)(E), (c)(1)(C), and (d)(3). The provisions that fall under

the second category are sections 512(c)(1)(A)(iii) and (d)(1)(C). (Section 512(b) does not contain a knowledge

limitation.)

U.S. Copyright Office Section 512 Report

160

the safe harbor.

850

Congress found that it was “not possible to identify a uniform time limit for

expeditious action” in the statute because “the factual circumstances and technical parameters

may vary from case to case.”

851

In the absence of any specific Congressional guidance, courts,

rightsholders, and OSPs have been left to evaluate the “expeditiousness” of removal on a case-by-

case basis.

While Study participants note uncertainty about what qualifies as expeditious,

852

they

largely agree that the analysis is a fact-specific inquiry, requiring an evaluation of different factors

to determine what constitutes “expeditious” in a particular case.

853

OSPs and rightsholders focus

on the importance of different factors, however.

The primary factor identified by OSPs is the completeness and accuracy of the notice.

854

The courts that have considered this factor have largely found that a defendant does not violate

the “expeditious” requirement when the takedown notice fails to meet the requirements under

section 512(c)(3)(A), triggering an obligation to act.

855

The Second Circuit in Viacom further

explained that “expeditious removal is possible only if the service provider knows with

particularity which items to remove.”

856

Similarly, the Ninth Circuit in Motherless found that the

OSP expeditiously removed the allegedly infringing content, thirty-three video clips, when it

850

17 U.S.C. §§ 512(b)(2)(E), (c)(1)(A)(iii), (c)(1)(C), (d)(1)(C), (d)(3).

851

H.R. REP. NO. 105-551, pt. 2, at 53–54 (1998).

852

See, e.g., A2IM Music Community Initial Comments at 19 (“Another major inefficiency in the DMCA, as implemented

in today’s environment, is the lack of clarity about what is meant by ‘expeditious’ takedown.”); LaPolt Initial

Comments at 10 (saying that expeditiousness is one of many “ambiguities” in section 512); Tr. at 230:8–10 (Apr. 8, 2019)

(Alex Feerst, Medium) (“[T]he definition of expeditiously is something that might be defined later in whatever form.”);

Tr. at 75:14–20 (May 2, 2016) (Natalie Madaj, NMPA) (“There aren’t really any clear guidelines in the DMCA about

what constitutes expeditious.”).

853

See, e.g., A2IM Music Community Initial Comments at 19 (“‘Expeditious’ takedown must be interpreted to be

commensurate with the speed at which infringing material can be uploaded, indexed and disseminated over the

Internet. Google touts that it removes noticed infringing URLs from its system within six hours, but fails to provide

transparency about the speed by which it indexes those infringing sites. Six hours on its own is a meaningless statistic

in thinking about what ‘expeditious’ means without an understanding of Google’s capabilities and speed in indexing

infringing services in the first place.”) (citation omitted); CCIA Initial Comments at 12 (“‘[E]xpeditious’ will naturally

vary, such that small service providers or individuals are not held to the same standard as large service providers.”); Tr.

at 453:18–454:3 (Apr. 8, 2019) (Joseph Gratz, Durie Tangri LLP) (discussing the Long v. Dorsett decision finding 5 days

expeditious and saying that “there may be situations in which that amount of time isn’t expeditious, and there are

likely to be lots of situations where a much longer amount of time might well be expeditious, particularly where on

service provider receives a notice, and there are downstream [section] 512 online service providers downstream of

them who are in contact with the actual user”).

854

See, e.g., CCIA Initial Comments at 11.

855

See, e.g., Motherless, 885 F.3d at 612; Viacom Int’l v. YouTube, Inc., 676 F.3d 19, 30–31 (2d Cir. 2012) (“[T]o require

expeditious removal in the absence of specific knowledge or awareness would be to mandate an amorphous obligation

to ‘take commercially reasonable steps’ in response to a generalized awareness of infringement. Such a view cannot be

reconciled with the language of the statute.”) (citations omitted).

856

Viacom, 676 F.3d at 30.

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removed the clips the same day that the copyright owner provided the individual URLs linking

to the content.

857

District court decisions have found that deficiencies in the takedown notice can

support a delay of several days.

858

Rather than focusing on the content of the takedown notice to determine whether removal

was “expeditious,” many rightsholders emphasize the nature of the content itself as an important

factor in determining whether a removal was sufficiently expeditious. One such example offered

by rightsholders is streams of live sporting events; as one rightsholder notes “[g]iven the unique

and perishable nature of live sports telecasts, the appropriate takedown time for those telecasts is

not the same as it may be for other copyrighted works.”

859

Other copyright owners point not to

the particular type of content, but instead to the compounding nature of the potential economic

harm that continues to occur as long as unauthorized content remains available on the internet,

and express frustration with the amount of time it sometimes takes OSPs to remove infringing

content.

860

The Copyright Office acknowledges that the amount of time that elapses before a

takedown notice is acted upon has significant implications. For works that are incredibly time-

sensitive, such as live sports and major new music releases,

861

the market for these products is

largest right at the time it first becomes available; if too much time has passed, customers lost to

the infringing versions are unlikely to be regained after the takedown. The Office believes,

however, that the case law largely demonstrates that courts correctly recognize that a

determination of expeditiousness is a fact-specific inquiry that depends on the circumstances. A

standard like expeditiousness offers courts some flexibility to account for the specific

circumstances surrounding the takedown notice, including technological changes that have

857

Motherless, 885 F.3d at 612.

858

See, e.g., Wolk v. Kodak Imaging Network, Inc., 840 F. Supp. 2d 724, 734, 746–47 (S.D.N.Y. 2012), aff’d sub nom., Wolk v.

Photobucket.com, Inc., 569 F. App’x 51 (2d Cir. 2014) (excusing a delay of several days for 700 images as a result of

deficiencies in the takedown notice). Cf. Io Grp., Inc. v. Veoh Networks, Inc., 586 F. Supp. 2d 1132, 1150 (N.D. Cal. 2008)

(noting that defendant removed allegedly infringing files without even receiving takedown notices, but finding that

defendant’s practice of “remov[ing] noticed content as necessary on the same day the notice is received (or within a few

days thereafter)” is sufficient).

859

National Basketball Association et al., Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 2 (Apr. 1, 2016) (“An ISP does not act ‘expeditiously,’ for purposes of Section 512, unless it either

removes infringing streams of a live sports telecast at the same time it receives a DMCA-compliant notice (i.e.,

immediately) or provides the copyright owners of those telecasts with the means to remove the infringing streams

when they afford such notice.”); see also UMG Initial Comments at 15–16 (“Section 512 should be amended to provide a

maximum time—and an extremely short time—within which content must be taken down for a service provider to get

the benefit of a safe harbor.”).

860

See, e.g., MPAA Initial Comments at 15 (“Waiting days or weeks to take action in response to a takedown notice is not

acting ‘expeditiously’ to remove infringing content.”); UMG Initial Comments at 15 (“[T]here is no reason that the time

to take down infringing content should materially exceed the time it requires to upload infringing content (i.e., nearly

instantaneously).”).

861

For example, Beyoncé (and her record company) released her 12-track music album Lemonade exclusively on the

streaming platform Tidal the day before it was released for purchase and two weeks before it appeared at physical

retailers. See Marcus J. Moore, Beyonce's Lemonade, Explained: An Artistic Triumph That's Also An Economic Powerhouse,

VOX (Apr. 28, 2016 2:50 PM), https://www.vox.com/2016/4/28/11518702/lemonade-beyonce-explained.

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rendered what was once expeditions far less so. Congress recognized the importance of this

flexibility, stating that “[b]ecause the factual circumstances and technical parameters may

vary from case to case, it is not possible to identify a uniform time limit for expeditious action.”

862

For this reason, the Copyright Office favors either a flexible statutory standard, or creation of a

regulatory framework to update the recommended range of times as needed to reflect current

business practices and needs.

Another aspect of section 512 that received significant attention from stakeholders on all

sides was the ten–fourteen day period between when the OSP receives a counter-notice and when

the copyright holder must file a federal lawsuit or see the material get replaced set forth in section

512(g)(2)(C).

863

This particular statutory timeframe turns out to present something like a

Schrödinger’s timeframe: both too long to have non-infringing speech down, and too short to

enable a copyright owner to adequately research and file a complaint in federal court.

One OSP notes that this timeline seems unbalanced, suggesting that a “more balanced

system would allow the service provider freedom to restore the material immediately with cause

to do so.”

864

Rightsholders, albeit for a different reason, criticize this timeline as well, arguing that

ten business-days after receiving a counter-notice is not a sufficient time period to allow filing a

federal lawsuit before the OSP reinstates the allegedly infringing material.

865

Rightsholders

discuss in their comments the inadequacy of such a short period to prepare the steps necessary to

file lawsuit

866

as well as the inherent costs of pursuing a federal court action.

867

The Copyright Office, therefore, agrees with the concerns of both OSPs and copyright

owners that this length of time does not comport with current business models. Congress’

specific intentions with this particular time period are unclear, and certainly do not reflect the

time-sensitive nature of content on the internet.

868

Notice senders cannot reasonably commence

862

H.R. REP. NO. 101-551, pt. 2, at 53–54 (1998).

863

17 U.S.C. § 512(g)(2)(C).

864

Mozilla Initial Comments at 7.

865

See Authors Guild Initial Comments at 28; IPO Initial Comments at 7; RIPG Initial Comments at 6.

866

See IPO Initial Comments at 7.

867

See Professional Photographers of America (“PPA”), Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry at 1 (Apr. 1, 2016) (“PPA Initial Comments”) (“When an infringer files a counter-

notification, the photographer’s only option is to file legal action within ten days, which is too time-consuming and

expensive.”); RIPG Initial Comments at 6 (“The requirement to bring a federal lawsuit within 10 business days is overly

burdensome and impractical except in situations where the monetary losses can be quantified with sufficient certainty

to establish that pursuing costly federal litigation is a viable option. Often times, when coupled with the investment of

time (away from revenue-generating activities) and up front legal costs, the chance of securing maximum statutory

damages for infringement of an audio file or other copyrighted material does not warrant the pursuit of a federal court

action.”).

868

See Mozilla, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry

at 4 (Feb. 21, 2017) (“Mozilla Additional Comments”) (“The group who are most unfairly disadvantaged by the

inaccessibility of their content are those who regularly attempt to take advantage of their fair use rights, perhaps as part

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federal litigation within ten days to prevent an inappropriate put-back due to an unjustified

counter-notice.

869

At the same time, requiring court action to contest a counter-notice is not

feasible given the volume of infringement and the associated federal court costs. Moreover,

before filing in federal court, a plaintiff’s attorney must fully investigate their claims, per Rule 11

of the Federal Rules of Civil Procedure.

870

Because of these time constraints, federal court is likely

not a good option for disputing counter-notices, and Congress may want to consider alternative

dispute resolution solutions.

871

3. Other Section 512 Statutory Provisions

Several provisions that Congress included in section 512 to balance the interests of

rightsholders and OSPs have been little-used in the two decades since its passage. These

provisions include those relating to subpoenas (section 512(h)) and injunctions (section 512(j)).

a) Subpoenas

Section 512(h) provides a mechanism for a copyright owner to subpoena an OSP to seek

identification of an alleged infringer.

872

According to the legislative history, Congress intended to

limit the scope of the subpoena to “information in the possession of the service provider, rather

than obliging the service provider to conduct searches for information that is available from other

systems or networks,” and articulated the role of courts in issuing subpoenas as “a ministerial

function performed quickly for this provision to have its intended effect.”

873

Subpoenas were to

of a business or a hobby. Such people can find themselves in receipt of a large number of DMCA notices, and have to

take the time and effort to challenge each one. If their understanding of fair use is correct, their challenges will be

successful—but in the interim, their content has been inaccessible, and their production costs have skyrocketed.”);

Urban et al. Empirical Study at 45 (“[T]en to fourteen days represents ‘an eternity on the Internet’ for small businesses,

for community sites where content has a short lifespan, or for political speech.”); Li Yu, Comments Submitted in

Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 1 (Mar. 22, 2016) (“[T]he long waiting time of

counter-notification process may still harm some users’ speech interests and financial profit. For example, advertising

videos for film marketing campaign.”).

869

See also Fourth Estate Pub. Benefit Corp. v. Wall-Street.com LLC, 139 S. Ct. 881, 892 (2019) (holding that a copyright

infringement lawsuit may be brought only after the Copyright Office registers or refuses the application to register).

870

FED. R. CIV. P. 11(b) (“By presenting to the court a pleading, written motion, or other paper—whether by signing,

filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's

knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: (1) it is not being

presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of

litigation; (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous

argument for extending, modifying, or reversing existing law or for establishing new law; (3) the factual contentions

have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable

opportunity for further investigation or discovery; and (4) the denials of factual contentions are warranted on the

evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”).

871

See infra section VI.C.1.

872

17 U.S.C. § 512(h).

873

H.R. REP. NO. 105-551, pt. 2, at 61 (1998).

U.S. Copyright Office Section 512 Report

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be “expeditiously issued” if the rightsholder’s paperwork was in order, including a notification

that complies with the elements required under section 512(c)(3)(A).

874

Only a few Study participants address section 512(h) in their submissions and testimony.

Among those that address the issue, rightsholders uniformly decry the current (lack of) utility of

section 512(h). These rightsholders argue that the tool which Congress envisioned has not come

to fruition, and that the section 512(h) subpoena “requirements have, over the course of time,

become overwritten and judicially glossed with a series of additional requirements before

compliance with a subpoena may be ordered.”

875

Under the rightsholder’s analysis, as a result of

these requirements and current business practices, section 512(h) has become a costly and

ineffective mechanism—that they gain little even with a subpoena because an OSP may have

already deleted its data logs in the interim and, even if not, the information rightsholders receive

is often inaccurate or useless. Among OSPs, only the ISPs weigh in, asserting that courts have

largely interpreted section 512(h) correctly, particularly in finding that section 512(h) does not

apply to mere conduits.

876

User advocacy groups, on the other hand, focus their discussion of

section 512(h) on the potential speech chilling effects of allowing rightsholders to uncover the

identity of anonymous internet users via “the ease of demanding user information with

subsection 512(h) subpoenas that [] do not need to be predicated on actual lawsuits”

877

In practice, courts have largely excluded from coverage the most relevant OSPs for

uncovering the identity of individuals using BitTorrent and similar file-sharing protocols to

exchange portions of infringing works: section 512(a) ISPs.

878

In one of the earliest cases to

consider the availability of section 512(h) subpoenas against an ISP, the D.C. Circuit in Recording

874

17 U.S.C. § 512(h)(4) (“If the notification filed satisfies the provisions of subsection (c)(3)(A), the proposed subpoena

is in proper form, and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign

the proposed subpoena and return it to the requester for delivery to the service provider.”).

875

APA et al., Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of Inquiry at

5 (Feb. 21, 2017).

876

See ACA Initial Comments at 12 (“Finally, Congress and the Office should resist any suggestions that the subpoena

provisions of Section 512(h) be expanded to apply to conduit service providers.”); USTelecom Initial Comments at 6

(“Multiple courts have affirmed that the plain language and structure of Section 512 unambiguously links the subpoena

power of § 512(h) only to the storage and linking functions that are the subject of §§ 512(b)–(d).”); Verizon Initial

Comments at 13 (“The courts have been consistently correct to conclude that the special expedited subpoena provisions

of section 512(h) are inextricably tied to the notice and takedown process, and, therefore, do not apply where the

alleged infringement arises out of a service provider’s acting as a conduit for third-party transmissions.”) (citations

omitted).

877

Copia Institute Initial Comments at 12 (citations omitted).

878

Since the BitTorrent protocol has largely been designed to avoid requiring a central OSP in order to operate, there are

relatively few ways to identify a particular user absent information from the user’s ISP. Instead, many companies

seeking the identity of a user file John Doe lawsuits against the user and request a subpoena to obtain the information

from the ISP under Federal Rules of Civil Procedure 26(d)(1) and 45. See, e.g., Strike 3 Holdings, LLC v. Doe, 337 F. Supp.

3d 246, 256 (W.D.N.Y. 2018); TCYK, LLC v. Does 1-87, No. 13 C 3845, 2013 WL 5567772, at *3, *5 (N.D. Ill. Oct. 9, 2013);

Virgin Records Am., Inc. v. Doe, No. 5:08-CV-389, 2009 WL 700207, at *1 (E.D.N.C. Mar. 16, 2009).

U.S. Copyright Office Section 512 Report

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Industry Association of America, Inc. v. Verizon Internet Services, Inc., held that “a subpoena may be

issued only to an [O]SP engaged in storing on its servers material that is infringing or the subject

of infringing activity.”

879

In reaching this conclusion, the court relied upon an analysis of the text

of section 512(h) and the overall structure of section 512. The court reasoned that the reference to

“a copy of a notification [of claimed infringement, as] described in [section 512](c)(3)(A)”

indicates that only those OSPs who host material that can be removed pursuant to that section

may properly be subject to a subpoena under section 512(h).

880

Subsequent court decisions have

largely adopted a similar statutory analysis as the one the court conducted in Verizon.

881

Even outside the context of mere conduit ISPs, section 512(h) has proved to be a less useful

tool for rightsholders than Congress may have anticipated. Section 512(h) requires a clerk to

ascertain that the request “notification filed satisfies the provisions of subsection (c)(3)(A), the

proposed subpoena is in proper form, and the accompanying declaration is properly executed.”

882

While Congress initially expected this to be a largely ministerial task,

883

district courts have

increasingly been called on to evaluate the rightsholders’ compliance with these requirements,

often as the result of a motion by the user to quash the subpoena.

884

As a result of such requests,

courts have adopted various tests under Fed. R. Civ. P. 45(c)(3)(A)(iii) to weigh the rightsholder’s

need for the subpoena against the First Amendment and privacy rights of the user.

885

Other

879

Verizon, 351 F.3d at 1233. Following the D.C. Circuit’s decision, some individuals who had been identified pursuant

to section 512(h) subpoenas directed to ISPs in turn sued the ISPs for disclosing their information. See, e.g., Garrett v.

Comcast Cable Commc'ns, LLC, No. 3:04-CV-2152, 2005 WL 8158342 (N.D. Tex. Mar. 2, 2005).

880

Verizon, 351 F.3d at 1234–36.

881

See In re Charter Commc’ns, Inc., Subpoena Enf’t Matter, 393 F.3d 771, 777 (8th Cir. 2005) (“[B]ecause the parties do not

dispute that Charter’s function was limited to acting as a conduit for the allegedly copyright protected material, we

agree § 512(h) does not authorize the subpoenas issued here.”); In re Subpoena Issued to Birch Commc’ns, Inc., No. 1:14–

cv–3904, 2015 WL 2091735, at *5 (N.D. Ga. May 5, 2015) (“Beyond does not store or host on its servers the allegedly

infringing material, and thus there is no allegedly infringing material to be removed or access to which must be

disabled. Because Rightscorp therefore cannot satisfy the notice requirements of Section 512(c)(3)(A), a subpoena

cannot be issued under Section 512(h).”); Pac. Century Int’l, Ltd. v. Does 1–37, 282 F.R.D. 189, 201 n.6 (N.D. Ill. 2012)

(noting the inadequacy of section 512(h) subpoenas in light of the D.C. Circuit’s ruling in Verizon that section 512(h)

does not apply to conduit ISPs); Well Go USA, Inc. v. Unknown Participants in Filesharing Swarm Identified by Hash, Civ.

No. 4:12–cv–00963, 2012 WL 4387420, at *3 (S.D. Tex. Sept. 25, 2012) (“Because of the nature of P2P activity, these ISPs

were likely used only as conduits to download any infringing material. Thus, these ISPs likely fall within the safe

harbor described in [section] 512(a) and discovery should be granted through a different mechanism if possible.”); In re

Subpoena to Univ. of N.C. at Chapel Hill, 367 F. Supp. 2d 945, 955–56 (M.D.N.C. 2005) (denying a subpoena because the

ISP was a mere conduit and did not store allegedly infringing material).

882

17 U.S.C. § 512(h)(4).

883

H.R. REP. NO. 105-551, pt. 2, at 60–61 (1998).

884

See In re Watch Tower Bible and Tract Society of Pa.’s Request For Issuance Of A Subpoena, No. 18mc301, 2018 WL 3187355,

at *1–*2 (S.D.N.Y. June 28, 2018) (denying issuance of a subpoena pursuant to a users’ motion to quash); Maximized

Living, Inc. v. Google, Inc., No. C 11–80061 MISC, 2011 WL 6749017, at *6 (N.D. Cal. Dec. 22, 2011) (same).

885

See Sony Music Entm’t Inc. v. Does 1–40, 326 F. Supp. 2d 556, 564–65 (S.D.N.Y. 2004) (stating that the principal factors

for determining whether to grant a motion to quash are: “(1) [the] concrete[ness of the plaintiff's] showing of a prima

facie claim of actionable harm, . . . (2) [the] specificity of the discovery request, . . . (3) the absence of alternative means

U.S. Copyright Office Section 512 Report

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courts have interpreted section 512(h)’s reference to section 512(c)(3)(A) as limiting the scope of a

subpoena to cover only ongoing infringement.

886

Section 512(h)’s language is ambiguous, at best, and raises questions as to its proper scope

(for example, its applicability to mere conduits). The Office has elsewhere noted that receipt of a

section 512(c)(3)(A) notification, while not obligating an ISP to actually takedown material,

nonetheless creates a duty to act on the information contained therein, either for the purpose of

implementing a repeat infringer policy or for avoiding conduct that amounts to willful

blindness.

887

Here, however, section 512(h) makes multiple references to receipt of “a notification

described in [section 512](c)(3)(A)” or a copy of such a notice.

888

Unlike language such as “a notice

containing the information set forth in [section 512](c)(3)(A),” which would clearly be referencing

section 512(c)(3)(A) for purposes of describing the content of the notice rather than invoking the

larger notice-and-takedown structure, the current language of section 512(h) can be interpreted to

limit its scope to ISPs subject to notice-and-takedown requirements. On the other hand, section

512(h) states that the copyright owner may request the court “to issue a subpoena to a service

provider,”

889

which, as defined in section 512(k), includes mere conduits.

890

While the language of section 512(h) is thus open to multiple interpretations, it is not clear

to the Office that Congress explicitly intended to exclude ISPs from section 512(h) as asserted by

the Second Circuit.

891

While the D.C. Circuit’s conclusion in Verizon rests, in part, on the assertion

that Congress drafted the DMCA too narrowly “to reach the new technology when it came

along,”

892

this finding does not seem to take into account the legislative history that demonstrates

Congress’ desire for the DMCA to be forward looking.

893

to obtain the subpoenaed information, . . . (4) [the] need for the subpoenaed information to advance the claim, . . . and

(5) the [objecting] party’s expectation of privacy”) (citations omitted); see also Arista Records LLC v. Doe 3, 604 F.3d 110,

119 (2d Cir. 2010) (quoting Sony Music, 326 F. Supp. 2d at 564–65).

886

See, e.g., Maximized Living, Inc. v. Google, Inc., No. C 11–80061 MISC, 2011 WL 6749017, at *5–*6 (N.D. Cal. Dec. 22,

2011) (relying on the reasoning in

rizon to find that the subpoena is “limited to currently infringing activity” because

the subpoena must be “susceptible to the notice and take down provisions of the DMCA”) (citation omitted).

887

See supra n.671.

888

17 U.S.C. §§ 512(h)(2)(A), (h)(5) (stating that an OSP shall act expeditiously “[u]pon receipt of the issued subpoena,

either accompanying or subsequent to the receipt of a notification described in subsection (c)(3)(A)”) (emphasis added).

889

17 U.S.C. § 512(h)(1) (emphasis added).

890

See 17 U.S.C. § 512(k)(1)(A).

891

As the court in In re Subpoena to University of North Carolina at Chapel Hill recognized, Congress might have wanted

section 512(h) to apply to mere conduits, but “for whatever reason, the drafters of Section 512(h) crafted a mechanism

which focuses on the notification provisions of the Act which only apply to Sections 512(b)–(d) service providers.” In re

Subpoena to Univ. of N.C. at Chapel Hill, 367 F. Supp. 2d 945, 955 (M.D.N.C. 2005).

892

Verizon, 351 F.3d at 1238.

893

See, e.g., H.R. REP. NO. 105-551, pt. 2, at 21 (1998) (noting that one of the purposes of section 512 was to “foster the

continued development of electronic commerce and the growth of the Internet”).

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As a policy matter, the Office notes that an inability to uncover the identity of a user

behind an IP address, information that is likely to reside nowhere else than with the ISP, “dooms

[a plaintiff’s] claim[s],” since a plaintiff’s “inability to identify defendant makes effectuating

service or prosecuting the case impossible.”

894

Weighing on the other side, user advocacy groups

articulate not insignificant public policy arguments against facilitating the actions of a certain

class of individuals and companies that purchase and then assert copyright rights against

individual users, uncovered pursuant to some form of subpoena or discovery, primarily as a

mechanism to gain a quick settlement payment rather than to actually stop the infringement of

their rights.

895

Ultimately, however, the Office does not countenance stripping rightsholders from

any realistic ability to enforce their (Congressionally mandated and constitutionally supported)

rights, even if doing so may prevent some bad actors from abusing the primary mechanism by

which rightsholders may vindicate those rights. As the Office noted earlier in this Report, it has

long been a fundamental axiom of U.S. jurisprudence that an effective remedy must be available

for the vindication of a right that has been transgressed.

896

While the Office would favor a

legislative fix to address ambiguity of section 512(h) and clarify whether ISPs are properly subject

to subpoenas under section 512(h) (such as replacing references to “a notice described in [section

512](c)(3)(A)” with language such as “a notice containing substantially the same information as a

notice under section 512(c)(3)(A)”), it agrees that there is a larger substantive discussion to be had

regarding the litigation tactics used by certain companies. To properly address these concerns,

however, the conversation should focus on the actual tactics at issue, rather than using section

512(h) as a proxy to wage those battles.

b) Injunctions

Section 512(j) is another provision that has received relatively little attention since the

DMCA’s enactment.

897

Though section 512’s limitation on liability guards eligible OSPs against

894

Strike 3 Holdings, LLC v. Doe, 351 F. Supp. 3d 160, 165 (D.D.C. 2018).

895

Such individuals and companies are often referred to as “copyright trolls.” See Malibu Media, LLC v. John Does 1, 6, 13,

14, 950 F. Supp. 2d 779, 780 (E.D. Pa. 2013) (defining a “copyright troll” as “a non-producer who merely has acquired

the right to bring lawsuits against alleged infringers” but noting that “Malibu is an actual producer of adult films”).

See, e.g., Tr. at 257:17–21 (Apr. 8, 2019) (Eric Goldman, Santa Clara University School of Law) (“I’d say [section] 512(h)’s

fast lane to getting identity has become one of the sources of copyright trolling, that it has enabled people to go and

bring lawsuits with the sole intent of extracting settlements.”); Tr. at 321:13–16 (My 12, 2016) (Steven Ellerd, graduate

student) (describing this practice as a “business model set up under the DMCA”). The Office will not here go into the

debate surrounding such activities.

896

See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) (“The very essence of civil liberty certainly consists in the

right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of

government is to afford that protection.”).

897

While rightsholders have sought a handful of injunctions under section 512(j), their primary method of obtaining

injunctive relief against serial infringers (be they OSPs or individual users) appears to have been to sue for contributory

infringement or inducement, and then seek a permanent injunction from the court. See, e.g., Columbia Pictures Indus.,

Inc. v. Fung, 710 F.3d 1020, 1049 (9th Cir. 2013) cert. denied sub nom., Fung v. Columbia Pictures Indus., Inc., 571 U.S. 1007

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monetary damages, a copyright owner may still seek injunctive relief under section 512(j).

898

Section 512(j) limits the injunctive relief available against both non-conduit and conduit OSPs.

Section 512(j)(1)(A) sets forth three forms of relief available against non-conduit OSPs (i.e., section

512(b)–(d) OSPs). A copyright owner can obtain relief in the form of (1) disabling access to the

infringing material; (2) terminating specific accounts that engage in infringement; and (3)

enjoining the OSP from continuing to allow access to the infringing material by what the court

deems the least burdensome effective remedy.

899

Section 512(j)(1)(B) applies to mere conduit ISPs

and only allows for termination of accounts and/or blocking access to foreign websites.

900

When

ruling on an application for an injunction under section 512(j), a court must take into account four

considerations: (1) the burden on the OSP of the injunction alone, or combined with other

injunctions; (2) the “magnitude of the harm” that the copyright owner may face if the

infringement is not halted; (3) the technical feasibility of the injunction, and whether the

injunction would interfere with access to noninfringing material at other online locations; and (4)

the availability of “less burdensome and comparably effective” measures to deny access to the

infringing material.

901

Congress intended for section 512(j) to enable rightsholders “to secure the

cooperation of those with the capacity to prevent ongoing infringement.”

902

In practice, the

applicability of section 512(j)—and how it differs from the relief available under notice-and-

takedown—has been unclear, and, accordingly, rightsholders have rarely pursued injunctions

under section 512(j).

During the Study, rightsholders acknowledge that there have been few cases involving

section 512(j), but assert that this is because courts have interpreted the injunctive relief too

narrowly.

903

Smaller rightsholders also note that the cost of pursing an injunction is too high for

(2013) (affirming the district court’s granting of an injunction with modification); Grady v. Swisher, No. 11-CV-02880,

2014 WL 3562794 (D. Colo. July 18, 2014).

898

17 U.S.C. § 512(j).

899

17 U.S.C. §§ 512(j)(1)(A)(i)–(iii).

900

17 U.S.C. §§ 512(j)(1)(B)(i)–(ii).

901

17 U.S.C. §§ 512(j)(2)(A)–(D).

902

H.R. REP. NO. 105-551, pt. 1, at 11 (1998). The legislative history also notes that, though injunctive relief under section

512(j) is limited, OSPs remain subject to injunctions under existing principles of law. See H.R. REP. NO. 105-551, pt. 2, at

62 (1998); S. REP. NO. 105-190, at 52 (1998).

903

A2IM Music Community Initial Comments at 45 (“The few cases that have addressed Section 512(j) have found the

issue of injunctive relief to be moot because the service provider had already removed the infringing material and/or

terminated the accounts of the infringers by the time the case was heard. Further, even if Section 512(j) were applied

more commonly, it would not offer much more relief from the whack-a-mole problem than notice-and-takedown

measures do.”) (citations omitted); c3 Initial Comments at 42 (“There are very few cases applying the standards in

[section] 512(j), and those that do state that an injunction would be moot because the service provider had already

removed the infringing material and/or terminated the accounts of the infringers. These cases seem to assume that

subsections (i) and (ii) are coextensive with the requirements for safe harbor regarding takedown and removal of repeat

infringers.”) (citations omitted); Tr. at 404:13–16 (Apr. 8, 2019) (Mary Rasenberger, Authors Guild) (“It has not been

U.S. Copyright Office Section 512 Report

169

most individual creators.

904

As a result, rightsholders argue, section 512(j) provides an

insufficient remedy for fighting copyright infringement both domestically and abroad.

905

OSPs and user advocacy groups, on the other hand, argue that section 512(j) injunctive

relief is sufficient as is, and that expanding it would jeopardize OSPs’ protection under the safe

harbors.

906

Additionally, some Study participants note that the purpose of section 512(j)(1)(A) is

achieved by the relief available through the notice-and-takedown provisions.

907

used because of how narrow the relief is, and the uncertainty as to its application, particularly with what the courts

have done with other sections of 512.”).

904

See, e.g., AAP Initial Comments at 25–26 (“The costs and risk inherent in the implied requisite conditions to bring a

suit against a service provider for inducement, contributory infringement, or vicarious liability provide strong

disincentives to attempting to seek such injunctive relief.”); IFTA Initial Comments at 13 (“Such limited injunctive relief

may be too expensive for small companies to justify or pursue, especially in light of the flood of infringements that

rights holders face in the online environment. Additionally, it is unclear as to whether a court would require a rights

holder to establish a service provider’s liability for copyright infringement before issuing injunctive relief under section

512(j).”); Schneider Initial Comments at 20 (“For an individual musician such as myself, it is a complete impossibility to

consider starting any sort of ‘injunction lawsuit,’ let alone paying the legal fees to see it to fruition . . . . And since the

law passed in 1998, there haven’t been any such ‘injunction’ suits by musicians. None. Of course there haven’t. It’s a

completely unrealistic and impossibly expensive ‘remedy.’”).

905

See A2IM Music Community Initial Comments at 45 (“Increasingly, responsible governments are pushing back

against this ‘offshoring’ of enforcement responsibility, by developing means and processes for restricting or blocking

access from within their borders to these overseas pirate sites. In due course, the U.S. must join the growing number of

its trading partners by stepping up to this problem . . . [t]he current provision in Section 512(j) is clearly insufficient.”);

c3 Initial Comments at 41–42 (“Section 512(j) is not a sufficient remedy to address the posting of infringing material.

Many of the most blatant and deliberate infringing service providers reside in countries outside of the United States,

which despite lawsuits, fees, injunctions, and jail sentencing, just will not go away; with the most infamous website

being The Pirate Bay.”) (citations omitted); Getty Initial Comments at 8 (stating that section 512(j) is “absolutely not”

sufficient and noting that “[w]ithout the possibility of recovering damages, there is no meaningful deterrent to allowing

infringing content to be posted, and thus a vicious cycle is created where more and more infringing content is posted.”);

UMG Initial Comments at 44 (“Injunctive relief is often rendered moot through the voluntary take-down of infringing

content or termination of an offending user, and given the ‘whack-a-mole’ problem among others, is not a sufficient

remedy to address the more fundamental problems afflicting Section 512.”).

906

Google states that “[t]he limited injunctive relief available under Section 512(j) strikes the appropriate balance among

the policies Congress weighed in enacting Section 512” and stating that an expansion of section 512(j) to “[p]ermit[]

more sweeping or burdensome injunctive relief would undermine the effectiveness of the safe harbor provisions.”

Google Initial Comments at 16. See also Facebook Initial Comments at 11 (“Section 512(j) appropriately restricts relief to

blocking access to the infringing material and terminating [ir]responsible users while otherwise protecting the service

provider from liability, in keeping with the purpose of the safe harbors.”); Yahoo! Inc., Comments Submitted in

Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 17 (Apr. 1, 2016) (“Yahoo Initial Comments”)

(“[T]he relief available expressly addresses the removal of infringing material posted by third parties. Importantly, this

relief is balanced to consider the rights of all parties involved—particularly when the intermediary is not the infringer

and is simultaneously hosting a wealth of non-infringing content that the public should continue to have access to.”).

907

See SoundCloud Initial Comments at 19 (“A well-functioning notice-and-takedown process is a more effective

remedy against online infringement than injunctive relief. Notice-and-takedown is quick, cheap and effective, certainly

when compared to the time and cost involved in applying for injunctive relief.”); Yahoo Initial Comments at 17 (“As a

rights holder, Yahoo has never had to utilize section 512(j), which speaks to the effectiveness and efficiencies of the

notice and takedown system as a whole. Likewise, no court has subjected Yahoo to section 512(j) injunctive relief as a

U.S. Copyright Office Section 512 Report

170

Indeed, though few, most judicial opinions addressing an injunction sought under section

512(j) have found that the injunctive relief is mooted by intervening actions taken by the OSP in

response to a takedown notice.

908

However, as noted above, there are three different kinds of

relief available against a non-conduit OSP.

909

Even where relief is moot under sections

512(j)(1)(A)(i) and (ii), many courts generally do not undertaken an independent analysis to

determine if some other form of relief is available under section 512(j)(1)(A)(iii).

910

In fact, the few

cases that even cite section 512(j)(1)(A)(iii) decline to issue an injunction under that provision,

either because the request lacks sufficient specificity

911

or because the requested relief is overly

burdensome on the OSP.

912

Section 512(j) cannot be separated from the larger fabric of section 512, in particular the

general requirements and obligations placed upon OSPs seeking to avail themselves of a safe

harbor, including notice-and-takedown provisions. The availability of injunctive relief that goes

beyond what a rightsholder can obtain via the notice-and-takedown process is ultimately limited

to a narrow category of cases, such as (i) seeking to prevent the reupload of content following a

counter-notice, (ii) seeking termination of a particular user’s account, (iii) seeking and order to

compel the OSP to comply with a takedown notice, or (iv) seeking an order to block a foreign

website under section 512(j)(1)(B)(ii).

913

Many of the court cases rejecting a subpoena request

under section 512(j) never address these possibilities when holding that injunctive relief is moot.

service provider”); Tr. at 261:14–262:2 (Apr. 8, 2019) (Joeseph Gratz, Durie Tangri LLP) (“[W]e don’t see a lot of [section]

512(j) injunctions because the purpose of that injunction has already been achieved.”). But see Tr. at 259:13–22 (Apr. 8,

2019) (Eric Goldman, Santa Clara University School of Law) (“The DMCA safe harbor says that [OSPs] can avoid

financial damages and be subject to a limited injunction, which is spelled out in [section] 512(j). So for me, the idea is

that [section] 512(j) is available to all of the copyright owners who are upset about infringement online. There’s still the

possibility of exercising the rights that are permitted under that, and I do not understand why that has not been more

widely explored.”).

908

Motherless, 885 F.3d at 602 (“Ventura sought damages and an injunction but the injunction claim became moot when

Lane deleted all the infringing clips.”); Io Grp., 586 F. Supp. 2d at 1154–55 (holding the request for a section 512(j)

injunction is moot because the OSP independently removed the content, which is all that it would have been compelled

to do if the injunction were granted); Wolk v. Kodak Imaging Network, Inc., No. 10 Civ. 4135, 2011 WL 940056, at *7

(S.D.N.Y. Mar. 17, 2011). But see Perfect 10, Inc. v. Google, Inc., No. CV 04-9484, 2010 WL 9479060, at *10 (C.D. Cal. July

30, 2010) (holding that injunctive relief in the form of disabling access to infringement was not moot, but denying relief

as the plaintiff’s request failed to provide the specificity required to obtain the limited injunctive relief under section

512(j)(1)(A)).

909

These are: (1) disabling access to the infringing material; (2) terminating specific accounts that engage in

infringement; and (3) enjoining the OSP from continuing to allow access to the infringing material by what the court

deems the least burdensome effective remedy. 17 U.S.C. §§ 512(j)(1)(A)(i)–(iii).

910

See Io Grp., 586 F. Supp. 2d at 1554–55.

911

See Perfect 10, Inc. v. Google, Inc., No. CV 04-9484, 2010 WL 9479060, at *10 (C.D. Cal. July 30, 2010).

912

See Wolk v. Kodak Imaging Network, Inc., No. 10 Civ. 4135, 2011 WL 940056, at *8 (S.D.N.Y. Mar. 17, 2011).

913

17 U.S.C. § 512(j)(1). The Office was able to locate only one case in which a rightsholder sought an injunction

pursuant to section 512(j)(1)(B)(ii). See Complaint, Arista Records, Inc., et al. v. AT&T Broadband Corp., et al., No. 1:02-cv-

06554 (Aug. 16, 2002) (S.D.N.Y. 2002), ECF No. 1. While the plaintiffs filed a complaint seeking injunctive relief under

U.S. Copyright Office Section 512 Report

171

Nonetheless, it is not clear to the Office that a significant number of rightsholders have, in

fact, sought relief under section 512(j) in such situations. The cost and expense of seeking an

injunction in federal court against an OSP, particularly one that has previously demonstrated a

willingness to litigate subpoenas and other matters relating to claims of online infringement,

likely has some deterrent effect on rightsholders’ willingness to test the outer boundaries of

section 512(j). Thus, while there may be some untapped “potential” in section 512(j) for

combating online infringement, it is unlikely that changes to section 512(j) would play a

significant role in restoring the balance under section 512. Nonetheless, the Office notes that,

even in the absence of legislative change, courts have been overly narrow in their consideration of

available injunctive relief under section 512(j). For this reason, Congress may wish to monitor

court decisions interpreting this provision and consider whether a reformulation is warranted.

B. Non-Statutory Approaches to Mitigating Section 512 Limitations

While the Office has noted several instances in which Congressional action could assist

with restoring the balance of rights and obligations between rightsholders and OSPs, this is not

the only mechanism available for improving the functioning of the notice-and-takedown system.

In particular, the Office notes that there is some degree of untapped potential in various non-

statutory approaches to mitigating the limitations of section 512. There are hurdles to effectively

implementing such measures, of course. And in many cases, a measure that relies upon

voluntary cooperation between parties will primarily benefit those parties large enough to pose a

credible litigation threat in the absence of such cooperation. Nonetheless, the Office believes that

there may be value in further pursuing some of these options, as described below.

1. Education

Educational initiatives that promote legitimate digital commerce and creativity while

reducing abuses of the notice and counter-notice processes may help to alleviate certain

imbalances in the section 512 framework. A few of the empirical studies submitted in response to

the Copyright Office’s November 2016 Notice of Inquiry indicate a need for more educational

resources that address a wide range of different levels of awareness and understanding of the

fundamentals of copyright protection and the notice-and-takedown process, including scope of

rights, enforcement, and available defenses and remedies.

914

Other commenters, likewise, address

the effective use of education to improve the quality and accuracy of takedown notices, to reduce

section 512(j)(1)(B)(ii) on August 16, 2002, the plaintiffs issued a notice of voluntary dismissal seven days later on

August 23, 2002. No decision was ever rendered on the plaintiffs’ request. For a discussion of the difficulties of

utilizing section 512(j)(1)(B)(ii), see Todd Ryan Hambidge, Note, Containing Online Copyright Infringement: Use of the

Digital Millennium Copyright Act’s Foreign Site Provision to Block U.S. Access to Infringing Foreign Websites, 60 VAND. L. REV.

905, 931–36 (2007).

914

See Copyright Alliance Empirical Study at 4 (“The results seem to indicate that, of those who do not monitor, a lack

of education and understanding about the DMCA and how to find and report online infringements was the most

significant cause for their not monitoring.”); DMLA Empirical Study at 1 (“This data suggests that . . . more education is

needed about the availability and purpose of the notice-and-takedown procedure.”).

U.S. Copyright Office Section 512 Report

172

uploads of infringing content, and to encourage good faith counter-claims.

915

The Office finds

that the creation of clear and balanced educational materials that explain the purpose and benefits

of copyright protection, including the policy reasons supporting the mechanisms through which

the DMCA operates, would be beneficial to support efforts to reduce the number of inappropriate

notices and counter-claims that arise from a lack of awareness and understanding of the law.

916

Such educational resources and programming should serve all participants in the digital

creative economy, including users, rightsholders, OSPs, and other members of the public.

Commenters and roundtable participants expressed broad support for more educational

initiatives and materials about general copyright concepts, such as fair use.

917

One participant

notes that “[m]ost users don’t have a legal education and they don’t know what fair use is, and

they might not read the terms of service to find out what fair use may or may not be.”

918

Several

commenters emphasize the need for more materials to educate users about the section 512 notice-

and-takedown process.

919

Other commenters even suggest that educational programming

designed specifically for users who have inadvertently infringed content may reduce further

instances of infringement.

920

915

See Copyright Alliance Empirical Study at 7 (“ISPs and internet users could also benefit from educational

resources.”); ICC Initial Comments at 3 (“Notice and takedown processes, and other collaborative efforts between

content owners and service providers in areas such as user education are the best way to combat the reappearance of

infringing material due to vast differences in network and system architecture between different service providers.”);

Urban et al. Empirical Study at 110 (“[E]fforts to improve efficiency may be better focused on front-end educational

efforts directed at senders rather than automated processing.”).

916

See Tr. at 398:17–22 (Apr. 8, 2019) (Keith Kupferschmid, Copyright Alliance) ( “[W]e would encourage others to

similarly do education programs to educate the individual creators, because to the extent there are sort of wrongful[,]

or I think you called them wonky notices, wonky notices out there it largely comes from non-educated people.”).

917

See CDT/R St. Initial Comments at 12 (“[OSPs] can also educate notice-senders about their rights under the DMCA

and their duty to consider fair use.”); Janice Pilch, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry at 7 (Apr. 1, 2016) (“There should be . . . [a] renewed national initiative on copyright education

to re-introduce norms based on respect for the contributions of all stakeholders in society”); PK Initial Comments at 6

(“One other avenue of non-statutory reform that would help alleviate some of the erroneous take down notices is better

education of the public as to the limits of copyright law, and the exceptions to the exclusive rights granted to authors,

such as fair use, [and] de minimis copying.”).

918

Tr. at 183:20–184:2 (Apr. 8, 2019) (Sasha Moss, R Street Institute).

919

See e.g., Copyright Alliance Initial Comments at 21 (“A number of OSPs have developed educational material to make

the counter notice process easier for their users to understand.”); Tr. at 172:19–173:11 (May 13, 2016) (T. J. Stiles, author)

(“The individual authors don’t know…what the rules are . . . . So we need . . . education, both for authors, so that . . . we

know what truly is a violation and what we should be aware of, and also users. There must be a much bigger role for

education in terms of copyright for individual users as well who, again, can’t be expected to know copyright law.”).

920

See Facebook Initial Comments at 10 (“[A] user who appears to have committed isolated inadvertent infringements

. . . could respond well to user education.”); Tr. at 52:6–10 (May 2, 2016) (Janice Pilch, Rutgers University Libraries)

(“[O]ften I think students don’t realize that what they’re doing is wrong. And so, we do need more education, I would

say an emphasis on more copyright education at universities would be a good thing.”).

U.S. Copyright Office Section 512 Report

173

Creators as well as users may also benefit from educational resources about copyright and

section 512. An independent filmmaker at the New York roundtable suggested that more

education and outreach for creators such as herself would help her better navigate the notice-and-

takedown process with the limited resources she has.

921

Another commenter has suggested that

educational programs that simultaneously serve these different stakeholders groups could

expand awareness of potential shared solutions.

922

In an effort to begin to provide creators, users, OSPs, and the public with resources to

navigate the notice-and-takedown process and its developments, the Office plans to release a

dedicated webpage, copyright.gov/DMCA, to collect in one location educational materials for

both users and creators, sample section 512 notices, and other relevant Office materials, such as a

link to the DMCA agents’ database and the fair use database. This location will also house links

to any future Office communications regarding updates on the DMCA agent notification process

or other aspects of the notice-and-takedown system. The Office hopes that this will form the basis

for development of additional informative content that allows us to reach a variety of interested

groups. The Office encourages OSPs to provide a link to the DMCA notification page on their

website, and welcomes suggestions from interested parties relating to additional content that

could be beneficial.

2. Voluntary Measures

In order to achieve and sustain the balance that Congress intended with section 512’s

notice-and-takedown process, stakeholders must continue to work together to develop

reasonable, effective, and flexible solutions to the ever-present problem of online infringement.

923

Many commenters remarked that encouraging further voluntary efforts may indeed improve the

notice-and-takedown process for the various stakeholders involved.

924

The Office acknowledges

921

Tr. at 73:23–74:5 (May 2, 2016) (Lisa Hammer, independent film director) (“As a small content provider, I would love

to have more education and more outreach to people like me so we would know exactly how to go about doing this

because I’ve had a lot of trouble even with just YouTube, trying to prove that it’s my copyright. And I don’t have the

machine behind me that a lot of companies have with the lawyers, and you know, search engines.”).

922

FMC Initial Comments at 18 (“[A] goal . . . would be to arrive at best practices and action items to achieve/identify:

Multilateral education efforts to expand awareness of existing detection technologies among those in the content and

technology communities.”).

923

See Facebook Initial Comments at 8 (“The voluntary nature of the current regime allows for, and encourages,

experimentation and cooperation with rights owners to continue to explore new solutions.”).

924

See ACT | The App Association, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry at 5 (Apr. 1, 2016) (“[V]oluntary industry efforts between service providers and rights owners should be

encouraged to improve the effectiveness of the notice-and-takedown process. Private industry agreements are more

likely to result in flexible long-term solutions than legislative reform.”); CCIA Initial Comments at 25 (“[V]oluntary,

inter-industry efforts are producing progress toward more efficient and effective takedown administration.”). But see

EFF Initial Comments at 15 (“EFF remains concerned that these kinds of agreements effectively create a system of

private law, without the checks and balances we expect from a real legal system.”).

U.S. Copyright Office Section 512 Report

174

the inherent limitations of these measures due to their voluntary nature.

925

However, they do

provide one approach, albeit not the only one, towards improving the notice-and-takedown

process.

Stakeholders have suggested various best practices for developing additional, successful

voluntary measures. The common theme highlighted in these proposed best practices is that any

discussions and development of new initiatives should involve all stakeholder groups, including

user advocacy groups, creators, OSPs, and the general public.

926

While one roundtable participant

notes that working across different industries may impede reaching the consensus needed to

create and implement any voluntary measures,

927

other stakeholders observe that the lack of

involvement in the process by both creators and OSPs, large and small, can lead to inherent

deficiencies in any resulting voluntary measures.

928

Indeed, some commenters attribute the absence of any sustainable success of some

voluntary measures to the exclusion of certain stakeholder groups during the development of

those measures. The IFTA notes in its comments that “voluntary initiatives can create the

potential for . . . disadvantaging those who are not involved in the relevant discussions or parties

to the ultimate agreement, including the public, creators and providers of innovative new

services.”

929

The Authors Guild similarly explains that, because larger representatives of both

OSPs and industry groups have primarily instigated the development of past best practices for

voluntary measures, “individual creators [have not been] included in the negotiation process or

the resulting agreements” and therefore, “[a]s a result, authors and other individual creators also

have not obtained any of the benefits.”

930

A key feature of any future voluntary measure should,

therefore, involve cooperation among rightsholder organizations, all sizes of OSPs, individual

925

See Getty Initial Comments at 6 (“In general, voluntary measures are of limited effectiveness because most online

service providers prefer the status quo.”); Tr. at 147:8–11 (May 3, 2016) (Mary Rasenberger, Authors Guild)

(“[V]oluntary measures cannot be the sole solution in large part because they don’t address those who are not

interested in voluntary solutions, namely, criminal pirate sites.”).

926

See, e.g., Tr. at 177:22–178:2 (May 13, 2016) (Michael Masnick, The Copia Institute) (“The public has no way to weigh

in and their interests are often not very well served by these [voluntary measures].”); Tr. at 114:7–10 (May 3, 2016)

(Victoria Sheckler, RIAA) (“[V]oluntary initiatives can be helpful in deterring piracy when everybody has to get in the

game to make those voluntary initiatives work.”).

927

Tr. at 93:14–17 (May 3, 2016) (Jonathan Band, LCA) (“[Payment processor voluntary measures were] responsive to

what they needed. But they were also able to reach a degree of consensus because they were within their industry

instead of trying to work across industries.”).

928

See Authors Guild Initial Comments at 18 (“We note only that, in practice, voluntary measures and best practices

generally are developed between major OSPs and industry groups or corporations and that individual creators are not

included in the negotiation process or the resulting agreements.”); Tr. at 104:23–105:3 (May 3, 2016) (Jennifer Pariser,

MPAA) (“All of the voluntary solutions that we have engaged in are partially effective in dealing with the piracy

problem. But all of them are flawed in that they only deal—they only have some players involved in them, and they

can only be somewhat effective in their approach to piracy.”).

929

IFTA Initial Comments at 11.

930

Authors Guild Initial Comments at 18.

U.S. Copyright Office Section 512 Report

175

creators, and users, in order to sufficiently “address infringement without impacting legitimate

conduct, the availability of non-infringing materials, or the rights of Internet users.”

931

Several other key criteria for developing and maintaining voluntary measures were

highlighted by stakeholders across industries in their Study comments. Facebook emphasized

the importance of flexibility in developing voluntary measures so that the protocols are consistent

with the needs of its stakeholders as well as in align with Congress’ dual purpose for the safe

harbor framework.

932

FMC recommended in its comments that a “permanent or semi-permanent

voluntary standards body” would provide consistent oversight and accountability to examine the

results of voluntary agreements as well as “make[] recommendations in consultation with

stakeholders.”

933

Similarly, other commenters suggested consistent application

934

and

comprehensive reporting of voluntary measures to assess and ensure their effectiveness.

935

Many Study participants state that there may be some role for government to assist in this

process.

936

The Office notes that there is an on-going Administration initiative, through the IPTF,

to convene stakeholders to discuss some of the issues discussed in this Report.

937

The Copyright

Office will continue to engage with stakeholders on these topics, and will consider whether there

is a worthwhile role that the Office can play to convene different parties to discuss potential

voluntary initiatives. The success of any such process and any voluntary initiative that develops

from it will depend on the involvement and input of all relevant stakeholders of all sizes from the

outset of the process, and the subsequent consistent and comprehensive oversight of these

measures to ensure at least some accountability within the boundaries of “voluntary.”

931

Microsoft Initial Comments at 10; see also Tr. at 95:5–12 (May 3, 2016) (Troy Dow, Disney) (“What are the principles

and the basic fundamentals that help those things to be successes? . . . . This was a multilateral discussion between

content creators as well as platform providers.”).

932

Facebook Initial Comments at 12.

933

FMC Initial Comments at 18.

934

See RIPG Initial Comments at 5 (“[T]he voluntary measures implemented by Online Stores are often inconsistently

applied and demonstrate marginal efficacy in addressing pervasive and persistent piracy of copyrighted material.”).

935

See CDT/R St. Initial Comments at 15.

936

See Tr. at 92:20–93:2 (May 3, 2016) (Jonathan Band, LCA) (“And so the payment processors have had voluntary

measures in place for a long time. A lot of them did it independently. Then Victoria Espinel—she was the Intellectual

Property Enforcement Coordinator—asked them to sort of get together, come up with best practices, which in essence

sort of codified what they were already doing. And it came up with some standardization.”); Tr. at 108:8–109:1 (May 3,

2016) (Jennifer Pariser, MPAA); Tr. at 103:3–5 (May 3, 2016) (Casey Rae, FMC) (“I believe that the government does have

a role, at least, to create the environment where [voluntary measures] can happen.”); Tr. at 116:24–117:3 (May 3, 2016)

(Lui Simpson, AAP) (“[O]n the question on government involvement, we definitely think that there should be some

push from the government to make these measures far more effective and, certainly, to push the parties to become

engaged in the process.”).

937

See Internet Policy Task Force, U.S. PATENT AND TRADEMARK OFFICE, https://www.uspto.gov/ip-policy/copyright-

policy/internet-policy-task-force.

U.S. Copyright Office Section 512 Report

176

3. Standard Technical Measures

Section 512(i)(2) defines “standard technical measures” (“STMs”) as those “technical

measures that are used by copyright owners to identify or protect copyrighted” that “have been

developed pursuant to a broad consensus of copyright owners and service providers in an open,

fair, voluntary, multi-industry standards process,” are “available to any person on reasonable and

nondiscriminatory terms,” and “do not impose substantial costs on service providers or

substantial burdens on their systems or networks.”

938

Inherent in this provision is Congress’

primary intent for the section 512 framework to encourage cooperation between creators and

OSPs.

939

In the Study comments, many stakeholders note that no measures currently qualify as

STMs,

940

despite the availability of various technologies and the potential interest in consensus-

building across industries.

941

Some commenters state that the statute requires a “consultative

multi-industry process,” which inherently impedes the development and implementation of

STMs since those measures that are appropriate for one category of OSP may be a poor fit for

OSPs that feature different kinds of content or perform different functions.

942

Google, in its Study

comments, finds collaboration resulting in STMs to be unlikely “[g]iven the wide array of OSPs of

different sizes, users, and service offered . . . [making] a one-size-fits all requirement imposed by

938

17 U.S.C. § 512(i)(2). The Copyright Office also understands that the definition of “standard technical measures” as

measures “used by copyright owners to identify or protect copyrighted works” may be interpreted to limit STMs to

those deployed by copyright owners. See id.

939

See Authors Guild Initial Comments at 27.

940

See, e.g., Authors Guild Initial Comments at 27; CCIA Initial Comments at 24 (“CCIA is unaware of any successful or

emerging inter-industry technological effort that satisfies the requirements of Section 512(i)(2).”); Copyright Alliance

Initial Comments at 26; Software & Information Industry Association (“SIIA”), Comments Submitted in Response to

U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 4 (Apr. 1, 2016) (noting that “the multi-stakeholder process

that the statute envisioned never occurred, and is not likely to occur”).

941

See Tr. at 70:14–18 (May 13, 2016) (Jeffrey Sedlik, PLUS Coalition) (“[T]he technology is there and ready to use. And

there is a voluntary initiative by all the stakeholders to get together and come together and create a solution that

doesn’t necessarily involve revising the statute.”). Despite the interest expressed during the 2016 roundtables, the

development of any STMs still had not occurred by 2019. See Tr. at 439:21–440:2 (April 8, 2019) (Nancy Wolff, DMLA)

(“[T]he idea that it’s a multi-industry standard process with everyone involved, I don’t think that’s the way that really

has worked. I haven’t seen any of that happening.”).

942

See CCIA Initial Comments at 24–25 (“In light of the fact that Section 512(i) amounts to a private sector technology

mandate that would govern many thousands of diverse platforms, it should not be surprising that no one-size-fits-all

system meeting the statute’s high standards has evolved.”); Tr. at 438:12–17 (April 8, 2019) (Nancy Wolff, DMLA) (“The

way [STM’s are] defined just doesn’t work because technical measures aren’t done by a broad consensus of users and

technology companies. They really come out of different sectors that are familiar with their own type of content.”); Tr.

at 111:8–16 (May 13, 2016) (Dean Marks, MPAA) (“[I]n the kind of notice-and-takedown or anti-piracy copyright

protection context online, [development of STMs] just hasn’t worked that way, I think possibly because there is such a

variety of platforms and players and different types of sites and technology. You know, when the DMCA was passed,

there wasn’t even peer-to-peer technology. So I think the context just changes so rapidly that it’s made it more

difficult.”).

U.S. Copyright Office Section 512 Report

177

private stakeholders . . . unworkable for many OSPs, especially smaller ones.”

943

Similarly,

several participants at the New York roundtable identify several challenges with the initiatives

led by the IPTF in seeking to identify one-size-fits-all measures via a process involving many

different stakeholders.

944

While understanding that not every industry can agree upon or

implement a single measure, the Copyright Office does not read the language of section 512(i) to

require consensus from all stakeholders across every industry to meet the statutory requirements

of a STM. Section 512(i) requires only “broad” consensus.

945

The Office recommends that both

stakeholders and Congress may wish to consider either legislative, regulatory, or practical

avenues to encourage the adoption and development of technologies as STMs in the spirit

originally intended by Congress.

946

a) Fingerprinting and Filtering Technologies

Stakeholders across industries already employ a wide variety of technological tools to

facilitate operations within the section 512 framework for particular types of works, such as audio

or audiovisual works.

947

These technological tools include a variety of fingerprinting

technologies, which have been adopted and employed by OSPs and rightsowners within various

industries.

948

Audio fingerprinting systems are used by various OSPs, including Facebook,

SoundCloud, Twitch, Vimeo, and Verizon Wireless.

949

These technologies involve the creation of

943

Google Initial Comments at 16.

944

Tr. at 40:20–24 (May 3, 2016) (Casey Rae, FMC) (“It wasn’t particularly designed to elicit, I think, useful information,

and there were just simply too many cooks in that kitchen and you know, which just leads to a lot of showboating.”);

Tr. at 87:7–15 (May 3, 2016) (Victoria Sheckler, RIAA).

945

See 17 U.S.C. § 512(i)(2)(A); Tr. at 174:17–175:1 (May 13, 2016) (Sean O’Connor, University of Washington (Seattle)) (“I

don’t think anything in the definition of STM actually makes it so it has to be one across the digital media ecosystem. I

think it’s written in the plural. And so, you could have one as long as there’s consensus among that subdivision, that

then you can have an STM for that.”).

946

In particular, several Study participants note that some OSPs block standard technologies used to identify and locate

infringing content on their sites, such as web crawlers. See, e.g., Tr. at 70:9–12 (May 3, 2016) (Lisa Willmer, Getty

Images) (“To my last point on that identification piece, there are some platforms that block crawlers and make it

difficult to identify infringing content.”); Tr. at 80:11–17 (May 2, 2016) (Steven Rosenthal, McGraw-Hill Education)

(“Notwithstanding issues surrounding automation of notice sending, the process of searching for infringing content on

many sites is becoming increasingly more difficult with sites taking offensive measures to prevent the automated

scraping of their site by limiting metadata that would be used to identify content.”). The Office notes that web crawling

technology is widely used across industries, including by many OSPs to locate and index content on the internet. Thus,

it is unclear what prevents such technology being designated an STM (other than lack of any group or forum for

officially voting to recognize web crawlers as STMs).

947

But as CCIA notes, these technologies do not qualify as STMs. CCIA Initial Comments at 24 (“The use of these

various technologies is not affected by Section 512(i), which contemplates technological measures developed by an

inter-industry standard-setting effort. CCIA is unaware of any successful or emerging inter-industry technological

effort that satisfies the requirements of Section 512(i)(2).”).

948

See MPAA Initial Comments at 44.

949

See Smithsonian Folkways Recordings, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry at 7 (Mar. 30, 2016) (“Smithsonian Folkways Initial Comments”).

U.S. Copyright Office Section 512 Report

178

metadata and fingerprint files for each copyrighted work to be included in databases that OSPs

can automatically compare potential uploads to their sites against. The OSP and the rightsholder

can negotiate a specific response to a match, such as blocking the upload or allowing the upload

and monetizing the content, once an exact match to the fingerprint has been identified.

950

The effectiveness and efficiency of this technology to address online infringement depend

on improving the data that feeds into filtering/fingerprinting systems. The quality of the data, as

well as the affordability of the technology, rests on creator involvement and cooperation

throughout the process.

951

As content filtering technology inherently relies upon reference files

and data provided by rightsholders, “the technology cannot meet its full potential” unless

“copyright owners are prepared to deliver reference files and ownership data to service

providers” and “are prepared to actively manage that data (e.g. by resolving conflicts in

ownership data).”

952

SoundCloud, in its Study comments, recommended that content owners

provide reference files to OSPs “on a timely basis, to keep this information accurate and up-to-

date—and to resolve ownership conflicts with users and other copyright owners.”

953

Even with high quality data, the success of the technology requires effective and nuanced

implementation.

954

Sony Music Entertainment has observed a “perverse incentive” regarding

implementation: the more effective the filtering system is in removing infringing but “valuable”

content, the “more friction with the service’s user base will be created.”

955

The Copyright Office,

however, agrees that with improved data and implementation, fingerprinting technology “may

become ubiquitous such that it would be a feasible option for all online service providers

regardless of scale.”

956

b) Principles for Developing STMs

Both creators and OSPs commenting in the Study generally agree that technology should

be used to reduce the burden and increase the efficiency and effectiveness of section 512 for all

stakeholders. One shared observation across industries that underlies these principles is that any

new measure should be “available to any person on reasonable and nondiscriminatory terms,” as

required by the statute.

957

950

See IPO Initial Comments at 7.

951

See Authors Guild Initial Comments at 27; SoundCloud Initial Comments at 13.

952

SoundCloud Initial Comments at 13.

953

SoundCloud Initial Comments at 13.

954

See Sony Initial Comments at 13 (“Simply having a ‘fingerprinting solution’ in place to block infringing uploads is

meaningless without effective implementation of such solutions.”).

955

Sony Initial Comments at 13.

956

Smithsonian Folkways Initial Comments at 7.

957

17 U.S.C. § 512(i)(2)(B); Tr. at 93:8–12 (May 2, 2016) (Janice Pilch, Rutgers University Libraries).

U.S. Copyright Office Section 512 Report

179

Several commenters stressed the importance of flexibility in creating and applying any

STM. Mozilla warned in its Study comments that STMs should not be legally mandated, as such

a requirement would create “a barrier to market entry for newcomers, reducing innovation and

competition with specific risks for small businesses.”

958

Facebook similarly cautioned against

“legislating a list of technical measures to be employed by either rights owners or service

providers” as such provision “would be a mistake . . . [g]iven the importance of rights owners

and service providers having the latitude to experiment and innovate with anti-infringement

techniques.”

959

Getty Images recommend that “Section 512(i)(2) should be amended to promote

the use of available technologies—not to proscribe the manner in which those technologies are

created.”

960

c) Recommendations for STMs

In light of these principles, the Copyright Office recommends different options Congress

may wish to consider to encourage the development and implementation of STMs. If the

language of section 512(i) has restricted or discouraged the use of STMs, then Congress may want

to amend the provision to broaden the language so as to avoid any perceived requirement that

measures must be achieved only by the consensus of every industry involved in the digital

ecosystem. Congress may also wish to provide the Copyright Office with regulatory authority to

oversee the development of STMs. Regulatory authority may provide for more flexibility to

ensure that any consensus-building accounts for the needs of both large and small creators, who

traditionally have not participated in the development of such measures.

961

The Office believes

that one of the goals of section 512(i) and STMs is to develop big tools for small creators.

Regardless of any future congressional action on section 512(i), the development of STMs

depends upon voluntary collaboration and consultation within and across industries. The

to find and adapt solutions as technology and piracy evolve. Despite the potential difficulty of

finding measures that meet all of the needs of stakeholders across different industries, several

commenters have suggested convening an STM summit to ensure collaboration and

communication across industries at the begging of the STM development process. A summit

would bring together various stakeholders involved in online copyright protection, “under the

guidance and supervision of a government or quasi-government agency with sufficient technical

expertise.”

962

AAP suggested that the National Institute of Standards and Technologies (NIST),

with its technical expertise, may take the leadership role in identifying a range of technically and

958

Mozilla Initial Comments at 6.

959

Facebook Initial Comments at 11.

960

Getty Initial Comments at 8.

961

See FMC Initial Comments at 5 (STMs “must work for small-to-medium sized enterprise[s] (SME) in both the

technology and creative sectors”).

962

IPO Initial Comments at 7.

U.S. Copyright Office Section 512 Report

180

economically feasible technical measures.

963

ITIF proposed that the Office “should launch a

multi-stakeholder working group to identify additional practices that online service providers

and content owners should adopt to reduce infringement and lower compliance costs for all

parties.”

964

In order to encourage and facilitate voluntary collaboration, the Copyright Office is

planning to hold a symposium on STMs to launch further discussion on how best to develop and

widely adopt such technical measures. Discussion topics during this symposium would include

the perspectives of both large and small creators and OSPs as well as individual users. The Office

is cognizant of the current challenges of the COVID-19 situation, and will endeavor to find a

future date for optimal participation by the public.

C. Alternative Stakeholder Proposals

As stated at the outset, the Copyright Office interpreted its charge in the Study as

evaluating the working of and potential improvements to the existing section 512 framework,

including potential non-legislative interventions to improve the functioning of that framework.

To this end, the focus of the foregoing sections has been on maintaining (or reestablishing) the

balance that Congress originally struck in 1998, while finding ways to improve the operation of

the section 512 system or address some of the statutory interpretations that increasingly have

limited the system’s effectiveness. Nonetheless, the Office received input from numerous parties

on additional statutory options outside of section 512 (at least as currently formulated) for

addressing the challenge of online infringement and assessing the appropriate balance between

OSP liability and the ability of rightsowners to effectively vindicate their rights. Unlike those

non-statutory approaches to improving the efficiency of the section 512 system discussed above,

the proposals discussed in this section would: (i) involve adoption of statutory measures that

would live alongside either the existing section 512 framework or a new online-liability

framework; (ii) require significant statutory changes to the section 512 framework; or (iii) involve

adoption of an entirely new statutory framework for addressing online liability.

Because it is outside the scope of the current Study to provide an in-depth analysis of

these proposals, and because the Office questions whether their real-world impacts can be

accurately assessed at the current time, the Office has declined in all but one instance to make

recommendations with respect to the proposals discussed in this section. Nonetheless, the Office

presents a brief outline of these proposals. With the one noted exception, the Office recommends

further fact-finding before considering adoption of any proposal discussed below. In particular,

the Office finds it would be necessary to undertake an extensive evaluation of several of the non-

impacts.

963

AAP Initial Comments at 25.

964

ITIF Initial Comments at 5.

U.S. Copyright Office Section 512 Report

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1. Creation of an Alternative Statutory Method for Adjudication of Online

Infringement Claims

As noted earlier, Study participants raise concerns regarding the ten to fourteen day

timeframe for restoration of content following a counter-notice, as provided by the current section

512(g)(2)(C).

965

Stakeholders on all sides take issue with this timeframe, arguing that it is either

too short or too long.

966

To address these concerns, both sides would need a method for seeking

an adjudication of their claims: allowing users to challenge a takedown notice upon receipt and

allowing rightsholders to bring a claim in response to a counter-notice. While it is currently

possible to do both in federal court, as the Office has noted on multiple occasions, federal

litigation is both expensive, complex, and often slow.

967

To address these shortcomings, Congress could consider adoption of an alternative

method for adjudicating online infringement disputes within the overall notice-and-takedown

framework. To be an improvement over the current system’s reliance on federal court, any such

alternative method should be less expensive, simple enough for both sides to participate in

without an attorney, and efficient. Various models have been proposed for such a system. One

practitioner has suggested developing an alternative dispute resolution process for takedown

notices modeled on the Uniform Domain Name Dispute Resolution Policy.

968

Similarly, Facebook

has announced that it will launch an independent body that can resolve appeals regarding

965

See supra section VI.A.2.f.

966

Compare Neco Initial Comments at 9 (“[I]mportant, timely content may be removed and not replaced quickly

enough, particularly in the context of elections and other instances where persons (e.g., voters, journalists) might

benefit by having the content available during a certain time-frame and where it is not available. This amounts to and

is akin to a form of censorship.”); with Tr. at 243:8–19 (May 3, 2016) (Darius Van Arman, A2IM) (“[F]or small or

medium-sized businesses, it’s a real burden to take something to federal court . . . . Also, the 10-day window to act after

a counter notification is provided also puts a great burden on small and medium-sized businesses.”).

967

See, e.g., U.S. COPYRIGHT OFFICE, COPYRIGHT SMALL CLAIMS 24–26 (2013), https://www.copyright.gov/docs/

smallclaims/usco-smallcopyrightclaims.pdf (noting that the burden and expensive of pursing federal litigation can be

cost-prohibitive with the time to trial potentially taking a year and a half); Visual Works Letters at 19–21; Oversight of the

United States Copyright Office: Hearing Before the Subcomm. on Intellectual Prop. of the S. Comm. on the Judiciary, 116th

Cong. __ (2019) (written statement of Karyn A. Temple, Register of Copyrights), reproduced at Written Statement of

Karyn A. Temple, Register of Copyrights, Before the Subcomm. on Intellectual Prop. of the S. Comm. on the Judiciary at

6–9 (July 30, 2019), https://www.copyright.gov/laws/hearings/testimony-of-karyn-temple-for-july-30-oversight-

hearing.pdf; Oversight of the U.S. Copyright Office: Hearing Before the H. Comm. on the Judiciary, 116th Cong. __ (2019)

(written statement of Karyn A. Temple, Register of Copyrights), reproduced at Written Statement of Karyn A. Temple,

https://www.copyright.gov/laws/hearings/testimony-of-karyn-temple-for-june-26-oversight-hearing.pdf.

968

LAWRENCE NODINE, THE UNIFORM DOMAIN NAME DISPUTE RESOLUTION POLICY (UDRP) AS A MODEL FOR THE RESOLUTION

OF INTELLECTUAL PROPERTY RIGHTS DISPUTES, WIPO/ACE/10/8 at 11 (Aug. 31, 2015),

https://www.wipo.int/edocs/mdocs/enforcement/en/wipo_ace_10/wipo_ace_10_8.pdf. The Uniform Domain Name

Dispute Resolution Policy “provid[es] a low-cost alternative means of resolving disputes involving the bad-faith

registration of trademarks as Internet domain names.” Id. at 2.

U.S. Copyright Office Section 512 Report

182

Facebook content moderation decisions;

969

one could easily imagine such a process being

extended to address takedown notices under section 512. The Office notes, however, that there is

another alternative to designing a new adjudication method from scratch: such matters could be

handled by a small claims tribunal set up within the Copyright Office. This proposal is the

subject of an extensive report issued by the Office in 2013, and, therefore, it is unnecessary to

restate all of the Office’s recommendations for such a tribunal here.

970

The Office does note,

however, that a bill modeled on its 2013 recommendations that would allow for both users and

rightsowners to seek a determination regarding claims of online infringement is currently

pending before the U.S. Senate, as of the date of this Report.

971

2. Adoption of International Approaches

During the course of the Study, many rightsholders encouraged the Office to look to

elements of international models—such as notice-and-staydown systems

972

or broader site-

blocking injunctions

973

—to address the continued problem of online infringement despite the

various provisions of section 512. Both of these approaches, as adopted in Europe and elsewhere,

are seen as shifting more of the burden for addressing online infringement from rightsholders to

OSPs. As a result, both of these proposals would necessitate either significant changes to the

existing section 512 framework or adoption of a new statutory framework, and both would

fundamentally reimagine the existing balance of rights and obligations between rightsholders,

OSPs, and users.

969

See Appealing Content Decisions on Facebook or Instagram, OVERSIGHT BOARD, https://www.oversightboard.com/appeals-

process/. Mark Zuckerberg first laid out his proposal for such a governance board in November, 2018. Mark

Zuckerberg, A Blueprint for Content Governance and Enforcement, FACEBOOK (Nov. 15, 2018), https://www.facebook.com/

notes/mark-zuckerberg/a-blueprint-for-content-governance-and-enforcement/10156443129621634/. Cf. Tr. at 367:12–

368:15 (April 8, 2019) (Rachel Wolbers, Engine) (noting that several small platforms like Patreon have instituted forms

of alternative dispute resolution for some copyright claims and that such systems are preferable to the legal system,

“which for many small creators is prohibitively costly and is not an avenue that most small creators are going to

pursue”).

970

See generally U.S. COPYRIGHT OFFICE, COPYRIGHT SMALL CLAIMS (2013), https://www.copyright.gov/docs/smallclaims/

usco-smallcopyrightclaims.pdf.

971

See Copyright Alternative in Small-Claims Enforcement Act of 2019, S. 1273, 116th Cong. (2019). The companion bill,

H.R. 2426, passed the House of Representatives by a 410-6 vote in October, 2019.

972

See, e.g., SONA Initial Comments at 3–4; Tr. at 286:2–10 (Apr. 8, 2019) (Eric Cady, IFTA) (“[W]e are encouraged by the

European Parliament’s recent approval of the Copyright Directive, to the extent that it recognizes the serious need to

rebalance the notice and takedown framework with respect to online content sharing service providers, which to date

have had no incentive to discourage users from further uploading infringing content, because that content drives

revenue to the platform.”).

973

See, e.g., MPAA, Additional Comments at 22 (“These injunctions can be highly effective at combatting piracy by

blocking access to websites devoted to copyright infringement.”); Tr. at 302:1–19 (Apr. 8, 2019) (Lui Simpson, AAP)

(noting that approximately forty countries have a website blocking statute or are considering adoption of one, and

encouraging adoption of a similar provision in U.S. law).

U.S. Copyright Office Section 512 Report

183

Many rightsholders and academics argue that such a rebalancing is called for, noting that

the internet is no longer the infant industry of 1998 and that, with maturity, the OSPs are now

better positioned to accept some of the responsibility for the negative externalities of their services

(particularly given the economic and cultural success of the internet services sector during the last

twenty-plus years).

974

This argument largely relies on an implicit (and often explicit) comparison

between the resources available to the large OSPs as opposed to those available to small authors

and creatives, supporting a conclusion that the OSPs are better situated to shoulder the burden of

policing infringement by their users. The comparisons on which the argument relies include the

economic success of the internet services industry with the economic precariousness of many

small authors and creatives,

975

as well as the technologies available to large OSPs versus the

974

See, e.g., Tr. at 288:6–18 (Apr. 8, 2019) (Alec French, Thorsen French Advocacy) (“The Europeans clearly decided

innovation by internet start-ups would not be impacted by requiring companies with $500 billion market caps and

more than $100 billion in cash on hand to secure licenses from rightsholders and filter and keep down infringing

material . . . . [L]imiting the availability of current section 512 to internet start-ups will not impair their ability to

innovate, but may prevent section 512(c) in particular from continuing to operate as a legislative license for multi-

billion dollar companies to ignore and profit from infringement with impunity.”); Tr. at 419:12–420:1 (Apr. 8, 2019)

(Ken Hatfield, Artists Rights Caucus of Local 802 of the American Federation of Musicians) (noting the value that

content brings to OSPs, and stating “[w]e only ask for a fair and equitable percentage of the revenues our works

generate” and that “[w]e ask that [OSPs] join us in contributing to the creation of a fair and sustainable digital

ecosystem”); Tr. at 411:16–20 (Apr. 8, 2019) (Jennifer Pariser, MPAA) (“[I]nternet services are spending a tiny fraction of

their revenue on takedown tools, on piracy, on response to notices and it obviously has not affected their bottom line to

any great extent.”); cf. Ronald J. Mann & Seth R. Belzley, The Promise of Internet Intermediary Liability, 47 WM. & MARY L.

REV. 239, 240 (2005) (stating that OSPs can be the “least cost avoider” for addressing the problem of online

infringement).

975

Google’s market cap passed $500 billion in November 2015, almost two years before Facebook’s market cap reached

the same milestone. Alphabet Market Cap 2006-2020 | GOOG, MACROTRENDS, https://www.macrotrends.net/stocks/

charts/GOOG/alphabet/market-cap; Facebook Market Cap 2009-2020 | FB, MACROTRENDS, https://www.macrotrends.net/

stocks/charts/FB/facebook/market-cap. Rightsholders compare this success against more gloomy creative industry

figures: the Authors Guild 2018 Author Income Survey found that full-time authors earned a median income of $20,300

in 2017, down from $25,000 in 2009. See Six Takeaways from the Authors Guild 2018 Author Income Survey, AUTHORS GUILD

(Jan. 5, 2019), https://www.authorsguild.org/industry-advocacy/six-takeaways-from-the-authors-guild-2018-authors-

income-survey/. Similarly, the Pew Research Center’s recent analysis of U.S. Bureau of Labor Statistics found that

newsroom employment at newspapers has dropped by around 50% since 2008. Elizabeth Grieco, U.S. Newspapers have

Shed Half of Their Newsroom Employees Since 2008, PEW RESEARCH CTR.: FACTTANK (Apr. 20, 2020),

https://www.pewresearch.org/fact-tank/2020/04/20/u-s-newsroom-employment-has-dropped-by-a-quarter-since-2008/.

See also Ben Sisario & Karl Russell, In Shift to Streaming, Music Business Has Lost Billions, N.Y. TIMES (Mar. 24, 2016),

https://www.nytimes.com/2016/03/25/business/media/music-sales-remain-steady-but-lucrative-cd-sales-decline.html.

A report issued in 2019 by The Copia Institute and CCIA challenges the narrative that the creative sectors are suffering

financially, or at least that such suffering is the result of the growth of the internet. The report, The Sky is Rising 2019

Edition, argues that there has been an increase in the amount of creative content published by the music, publishing,

movie, and video game industries since 2009, and points to increasing global industry revenues. See generally Michael

Masnick & Leigh Beadon, THE SKY IS RISING, 2019 EDITION: A DETAILED LOOK AT THE STATE OF THE ENTERTAINMENT

INDUSTRY (2019), https://skyisrising.com/TheSkyIsRising2019.pdf. Of note, a number of the charts included in The Sky is

Rising 2019 Edition place year zero somewhere between 2009 and 2015, the years during in which the economy once

again began to grow in the immediate aftermath of the 2007–09 recession. See Chart Book: The Legacy of the Great

Recession, CENTER ON BUDGET AND POLICY PRIORITIES (June 6, 2019), https://www.cbpp.org/research/economy/chart-book-

the-legacy-of-the-great-recession. In contrast, creative industry analyses often compare current numbers with high-

water marks in the late 1990s/early 2000s. See Paul Resnikoff, What the Music Industry “Comeback” Really Looks Like,

U.S. Copyright Office Section 512 Report

184

largely manual process used by small creators to search for and send notices regarding instances

of infringement.

976

In one rightsholder’s view, it is particularly unfair for large OSPs whose

“business model is predicated on monetizing user-generated content (not vetted for copyright),”

to place the burden of identifying infringements on the rightsholder, arguing instead that such

“OSP[s] should be required, by law, to implement some form of digital fingerprinting to prevent

infringing material from being uploaded in the first place.”

977

Yet even those calling for a shift in

the balance did not seek a redistribution of responsibility for addressing infringement in all

cases—as many participants note, limiting reforms to certain classes of large, for-profit OSPs

while retaining the current balance for small OSPs and startups may yet still be appropriate.

978

In response, many OSPs and user advocacy groups argue that the current balance has

secured for the United States a preeminent position in the internet services sector, and warn that

significant changes to the section 512 framework would result in the loss of such position.

979

addition, they argue that the burden of locating and identifying infringing content is properly

DIGITAL MUSIC NEWS (Apr. 25, 2017), https://www.digitalmusicnews.com/2017/04/25/music-industry-comeback/ (“The

music industry is nowhere near its 1999 heyday. But at least it isn’t collapsing anymore.”).

976

See, e.g., SONA Initial Comments at 4 (“Songwriters must currently submit their notices manually even though ISPs

like Google have the resources to create systems which can efficiently respond to the increasing number of takedown

notices they receive. Songwriters, on the other hand, lack access to the third-party services and resources, which could

help them monitor for infringing uses.”); Rachel Stilwell, Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry at 4 (Mar. 14, 2016) (“I know dozens of music and film creators who lament about the

substantial burdens imposed upon them to draft and send multiple cumbersome DMCA take down notices, in futile

attempts to protect their works.”); Section 512 of Title 17: Hearing Before the Subcomm. on Courts, Intellectual Prop. & the

Internet of the H. Comm. on the Judiciary, 113th Cong. 57 (2014) (written statement of Maria Schneider, Grammy Award

Winning Composer/Conductor/Producer, Member of the Board of Governors, New York Chapter of the Recording

Academy) (“[The current functioning of section 512 is] an upside down world in which people can illegally upload my

music in a matter of seconds. But I, on the other hand, must spend countless hours trying to take it down, mostly

unsuccessfully. It’s a world where the burden is not on those breaking the law, but on those trying to enforce their

rights.”).

977

Ellen Seidler, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 4 (Apr.

1, 2016).

978

Cf. FMC Initial Comments at 4–5 (“We recognize that a diminishing of limitations on liability may indeed impact

investment in potentially useful digital services, which means that enforcement protocols must work for small-to-

medium sized enterprise (SME) in both the technology and creative sectors. We need to make it easier for all parties to

do the right thing.”); Tr. at 378:21–379:3 (Apr. 8, 2019) (Alec French, Thorsen French Advocacy) (“The start-up point is

one that I take as a real point. But again, once a provider has a $500 billion market cap and $100 billion in the bank, . . .

you don’t deserve that kind of protection anymore.”).

979

See, e.g., BSA Initial Comments at 2 (“Importantly, the DMCA has also shielded responsible online intermediaries

from the burden of implementing intrusive measures to monitor their users or filter their networks—obligations that

would weaken incentives for innovation and threaten the dynamism and values that have made the Internet so

valuable.”); Engine et al. Initial Comments at 16–17 (stating that “[t]he economic value the Internet has created in a few

short decades would have been impossible without the DMCA’s limited liability regime,” and asserting that “any

change in OSP’s monitoring obligations will inevitably make it more difficult for the next generation of OSPs to receive

the funding they need to launch and grow”).

U.S. Copyright Office Section 512 Report

185

placed upon copyright holders, since they are in a better place to determine whether a certain use

is licensed or otherwise permissible.

980

When considering the rebalancing of responsibilities between rightsholders and OSPs,

both sides argue that the other should bear the greatest brunt of the responsibility. Rightsholders

believe that OSPs should be grateful for the safe harbors that have enabled their success, and

accordingly should shoulder more of the burden of addressing infringement on their services. In

contrast, OSPs believe that rightsholders should be grateful for the mechanisms provided by

section 512 for addressing online infringement without resort to costly civil litigation, making it

appropriate that they shoulder most of the (financial and other) burden of policing their rights

online. As with many things, the answer is likely somewhere in the middle.

981

There are important reasons to proceed cautiously when considering any of the proposed

international solutions. While the Office has received submissions from thousands of

rightsholders, users, OSPs, academics, and others arguing for or against adoption of the

international models below, much of the evidence is anecdotal or conflicting. The Office still has

relatively little data on how well these international regimes are working in practice, or even how

a notice-and-staydown requirement will ultimately be implemented in the European Union. To

make the most informed decision possible, it will likely be necessary for Congress to consider

many factors beyond simply the copyright law—questions of economics, competition policy,

fairness, and free speech, to name but a few. It is thus the opinion of the Office that the

international approaches discussed below should be adopted, if at all, only after significant

additional study, including evaluation of the non-copyright implications they would raise.

980

See, e.g., Engine et al. Initial Comments at 17 (asserting that “because OSPs are ill-equipped to know what is

infringing and what is authorized, shifting the burden of policing infringements will lead to more incorrect deletions,

as OSPs will have a strong incentive to err on the side of removing content”); Google Initial Comments at 10 (“OSPs

cannot implement a staydown regime, because even when given notice that a particular user was unauthorized to

upload a particular work, only the rightsholder knows whether subsequent uploaders may or may not be licensed to

upload the content.”). Cf. Institute for Intellectual Property & Social Justice, Comments Submitted in Response to U.S.

notice-and-takedown process . . . [strikes] an appropriate balance in light of what information is known by the rights

holder and what tools are controlled by the service provider . . . . In exchange for our compliance with this minimal

burden [of filling out section 512 notification forms], we as a rights holder get a rapid, extrajudicial, ex parte means of

protecting our rights in the vast majority of cases. Similarly, the smaller rights holder also gets the equivalent of an

injunction without the necessity of going to court, or even hiring a lawyer.”).

981

Underlying this debate is the question of whether OSPs are properly secondarily liable for infringement committed

by their users, or are they passive actors that cannot be expected to police their users. Passage of the DMCA largely

short-circuited resolution of these legal questions by the courts, leading both sides to believe that the other would be in

a worse position in the absence of section 512. For further discussion of this debate, see supra section VI.A.1.c.ii.

U.S. Copyright Office Section 512 Report

186

a) Notice-and-Staydown

The proposal that has attracted the most attention both from participants in the Study

982

and from outside commentators

983

is the adoption of a “staydown” requirement for OSPs.

984

One

proponent describes such a requirement as follows:

Once a webhost is on notice that a work is being infringed, it should not receive continued

safe harbor protection unless it takes reasonable measures to remove any copies of the

same work reposted by the same user and also takes down all infringing copies of the

work that bear the same reasonable indicia provided by the rightsholder.

985

Some form of staydown requirement was endorsed by rightsholders both big and small.

986

Rightsholders’ primary argument in favor of adopting a staydown requirement is that such an

approach is necessary to deal with the whack-a-mole problem: the reappearance on an online

982

Many rightsholders were in favor of the United States adopting a “staydown” provision. See, e.g., A2IM Music

Community Initial Comments at 22; Recording Academy Initial Comments at 6; Tr. at 229:13–21 (May 13, 2016) (Paul

Doda, Elsevier); Tr. at 28:21–29:4 (May 12, 2016) (Jay Rosenthal, ESL Music/ESL Music Publishing). Many OSPs and

user advocacy groups were strongly against the idea of adopting a “staydown” provision in the United States. See, e.g.,

Amazon Initial Comments at 9–10; Tr. at 276:22–277:2 (May 13, 2016) (Joshua Lamel, Re:Create); Tr. at 76:10–21 (May 2,

2016) (Ellen Schrantz, Internet Association).

983

See, e.g., Martin Husovec, The Promises of Algorithmic Copyright Enforcement: Takedown or Staydown? Which is Superior?

And Why?, 42 COLUM. J.L. & ARTS 53 (2018); ALDEN ABBOT ET AL., Creativity and Innovation Unchained: Why Copyright Law

Must be Updated for the Digital Age by Simplifying It, REGULATORY TRANSPARENCY PROJECT 26 (2017),

https://regproject.org/wp-content/uploads/RTP-Intellectual-Property-Working-Group-Paper-Copyright.pdf; Chris

Sprigman & Mark Lemley, Op-Ed: Why Notice-and-Takedown is a Bit of Copyright Law Worth Saving, L.A. TIMES (June 21,

2016), https://www.latimes.com/opinion/op-ed/la-oe-sprigman-lemley-notice-and-takedown-dmca-20160621-snap-

story.html.

984

Most staydown proposals were based, at least in part, on the provision in Article 17(4) of the EU Directive on

for infringement resulting from its users’ uploads unless it makes “best efforts” to prevent future uploads of

unauthorized copyright-protected works. Directive EU 2019/790 of the European Parliament and of the Council of 17

April 2019 on Copyright and Related Rights in the Digital Single Market and amending Directives 96/9/EC and

2001/29/EC, art. 17(4), 2019 O.J. (L. 130/92).

985

See Authors Guild Initial Comments at 12 (emphasis in original).

986

See, e.g., Don Henley, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of

Inquiry at 2 (Feb. 21, 2017) (“I ask the Copyright Office and Congress to require that online providers prevent the

reposting of content for which they have [] received a takedown notice as a condition of safe harbor protection–that is,

to require not just ‘notice and takedown,’ but ‘notice and staydown.’”); Tr. at 115:17–116:5 (May 12, 2016) (Eric Cady,

IFTA) (“IFTA members are primarily small-to medium-size companies that produce and sell motion pictures and

television programs around the world . . . . We advocate for a notice and staydown provision.”); Tr. at 172:4–8 (May 3,

2016) (Alisa Coleman, ABKCO Music & Records); Tr. at 39:7–9 (May 2, 2016) (David Kaplan, Warner Brothers

Entertainment Inc.); Tr. at 30:11–16 (May 2, 2016) (Deborah Robinson, Viacom).

U.S. Copyright Office Section 512 Report

187

service (often in short order) of content that was already the subject of a takedown notice.

987

discussing the whack-a-mole problem, rightsholders sometimes conflate two separate

phenomenon: (i) websites designed (in bad faith) with a “technological Pez dispenser” system

that creates a list of unique URLs for a given piece of content, “dispensing” the next URL once the

previous one has been removed due to a takedown notice;

988

and (ii) the repeated upload, often

by multiple users, of the same content to a single website both before and after a takedown notice

had been sent.

989

The former type of activity is likely to be outside the scope of what Congress

originally intended section 512 to govern. Bad-faith OSPs that encourage infringement also tend

to be rejected for safe harbor protections by most courts once litigation is brought.

990

Thus, this

type of activity likely requires a solution beyond just changing section 512, such as one focused

on coordinated enforcement activity. The latter activity is, to some degree, the inevitable result of

millions of users uploading hours of content a day in the absence of some form of filtering

technology or active monitoring by the OSP.

991

Many rightsholders argue that a staydown

requirement is particularly necessary to address the burden on small creators of policing

infringing content online.

992

As one Study commenter notes:

While . . . [staydown] would still require rights holders to monitor many different OSP’s

and to send complaints to any or all of them whenever infringing material was discovered,

this would be a heavy but finite and therefore reasonable burden. By contrast, in today’s

987

See Tr. at 120:15–121:7 (May 12, 2016) (Deron Delgado, A2IM) (noting that staydown measures could help deal with

whack-a-mole and repeat offenders); Tr. at 46:8–10 (May 2, 2016) (Kathy Garmezy, DGA) (emphasizing the importance

of staydown to address “the problem of content reappearing right away”).

988

See A2IM Music Community Initial Comments at 10–11 (describing the design of “Grooveshark and other rogue

actors” as an attempted DMCA work-around).

989

See, e.g., Tr. at 120:1–18 (May 12, 2016) (Deron Delgado, A2IM); Tr. at 86:11–22 (May 2, 2016) (Alisa Coleman, ABKCO

Music & Records); Tr. at 22:1–4 (May 2, 2016) (Maria Schneider, musician).

990

See, e.g., Grokster, 545 U.S. at 919. Some rightsholders dispute that those OSPs that have qualified for the safe harbors

are, in fact, good faith actors. See Tr. at 54:22–55:6 (May 2, 2016) (Victoria Sheckler, RIAA) (“I even had one . . .

considered legitimate service provider tell me that they did have several URLs . . . [that] are going to the same piece of

content[,] and if we sent a notice for one of those URLs, they would not take down the others because those others

might have authorization. And from our perspective, we don’t know who the user is that put that content up. We just

know that we did not authorize that content to be up on that site.”).

991

As of May 2019, more than 500 hours of video are uploaded to YouTube every minute. J. Clement, Hours of Video

Uploaded to YouTube Every Minute 2007–2019, STATISTA (Aug. 9, 2019), https://www.statista.com/statistics/259477/hours-

of-video-uploaded-to-youtube-every-minute/.

992

See, e.g., Anonymous, Anonymous, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry (Apr. 1, 2016) (“The only people who have the power to continually issue take down notices are

corporate entertainment industries. [Staydown] would help the small artists actually be able to make some kind of

living, or get some benefit for the work that they make.”); Robert Hansmann, Comments Submitted in Response to U.S.

copyrighted materials, there is no reasonable way in which a content owner can effectively track all incidences of

U.S. Copyright Office Section 512 Report

188

world and under current copyright law as practiced, that burden is effectively infinite and

therefore not reasonable.

993

The assumption of most commentators during the Study was that an OSP could address

the second whack-a-mole concern and comply with a staydown requirement through

technological means,

994

either via a sui generis content filtering system developed by that OSP,

such as YouTube’s Content ID system,

995

or off-the-shelf filtering technologies, such as that offered

by Audible Magic.

996

As one panelist states,

[S]o many problems of infringement are driven by technology, so technology-based

solutions are definitely the way to go. We have seen that filtering mechanisms,

fingerprinting, and watermarking are available, are possible, and[,] even if they are not

perfect, they are a great way to start. And they actually would provide more effectiveness

rather than more efficiency to the DMCA notice-and-takedown.

997

993

Paul Vixie, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry at 2 (Mar.

31, 2016).

994

But as several Study participants note, while there are already commercially available filtering systems for audio-

visual works, the picture is more complicated with respect to other types of works and smaller platforms. See, e.g.,

Internet Association Initial Comments at 17 (technologies used for “staydown,” such as Content ID are not “feasible

options for many platforms and users.”); OTW Additional Comments at 3; Tr. at 10:22–11:4 (May 13, 2016) (Joseph

Gratz, Dure Tangri, LLP) (“Technology, for example, is better suited to video hosting sites to identify full-length

audiovisual works and it’s suited very poorly to personal blogs and use of text or images on personal blogs.”); Tr. at

60:2–6 (May 13, 2016) (Charles Roslof, Wikimedia Foundation) (“We host a wide variety of content, including text,

video, audio and images in a wide variety of file formats. And I don’t think there’s any existing solution that could

handle all of that.”).

995

For a brief description of how Content ID works, see Google Additional Comments at 2–4. See also How Content ID

Works, YOUTUBE HELP, https://support.google.com/youtube/answer/2797370. It is worth noting, however, that Content

ID was not without its detractors during the course of the Study, despite the significant resources that went into

building it. While some rightsholders seemed to be primarily concerned with the fact that smaller entities were not

given access to Content ID or that access required agreeing to license your work for use by YouTube, several small

creators and representatives of users’ interest groups complained about a high anecdotal incidence of improperly

flagged content. See, e.g., OTW Initial Comments at 13 (“[T]here are numerous reports of misidentification and abuse of

Content ID by claimants who don’t even have legitimate claims to components of user-uploaded videos.”); Tr. at

174:10–19 (May 12, 2016) (Daphne Keller, Stanford Law School Center for Internet and Society); Tr. at 259:13–22 (May 2,

2016) (Rebecca Prince, Becky Boop) (“Using YouTube as an example . . . they have Content ID which automatically

scans your content to see if there’s a match . . . . [J]ust because it is copyrighted doesn’t mean it might not be able to be

used. So even though I might be speaking over that clip, even though I am critiquing that clip . . . it is [automatically]

being blocked worldwide.”).

996

For a description of how Audible Magic music fingerprinting works, see Audible Magic Initial Comments at 3–5.

Audible Magic’s system was used by Google for audio content fingerprinting before the development of Content ID,

and is still in use by Facebook and other platforms. See id. at 4, 7; Tr. at 297:10–12 (Apr. 8, 2019) (Christopher Randle,

Facebook).

997

Tr. at 15:6–14 (May 3, 2016) (Sofia Castillo, AAP).

U.S. Copyright Office Section 512 Report

189

Opponents of a staydown system, including OSPs and user advocacy groups, note several

concerns with such a system. First among these is concern about the impact such filtering

technologies would have on free expression and speech interests.

998

Many opponents note that

technology cannot determine whether use of rightsholders’ material included in uploaded

content is done pursuant to a license or constitutes fair use.

999

Even after the potential advent of

such technological capabilities, some commenters fear a staydown requirement would turn OSPs

into “gatekeepers” of online speech.

1000

Some users and online content creators argue that OSPs

had already become such gatekeepers as a result of section 512 and DMCA+ systems like Content

ID, which they maintain regularly sweeps up content they believe makes fair use of third-party

materials along with infringing content, and should be scaled back even from current

standards.

1001

Additionally, some OSPs voice concern that takedowns resulting from filtering

technologies would impact non-profit resources like open source repositories and Wikipedia in a

particularly negative way.

1002

In response to these concerns, some rightsholders sought to narrow

the focus to content that is identical to the noticed content, or to full-length content.

1003

OSPs,

however, resist the idea that filtering for full-length content is an appropriate application of a

998

Tr. at 293:15–19 (Apr. 8, 2019) (Corynne McSherry, EFF) (“[W]e expect we’re going to see the adoption [by OSPs] of

upload filters across Europe in order to avoid liability, [and] those filters are inevitably going to flag lawful as well as

potentially infringing content.”). See also Bridy & Keller Initial Comments at 17 (“Whatever one thinks of this drastic

shift in burden between intermediaries and copyright owners [as a result of a staydown requirement] . . . the impact on

Internet users could only be bad. Their expressive rights would be predictably compromised by both ‘human’ and

‘automated’ monitoring.”).

999

See, e.g., Yahoo Initial Comments at 10–11 (“[There are] enormous technical and philosophical challenges with

permanently suppressing material across an entire online ecosystem [through staydown] . . . . [I]nevitably there are

contexts in which use of the material in question is NOT infringing, either because it is authorized . . . or because a

given use falls within an exception to copyright such as fair use.”).

1000

CDT/R St. Initial Comments at 3.

1001

See, e.g., Andrea Austin, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015, Notice of

Inquiry (Apr. 1, 2016); Rajan Awasthi, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31, 2015,

Notice of Inquiry (Apr. 1, 2016); Steven Berliner, Comments Submitted in Response to U.S. Copyright Office’s Dec. 31,

2015, Notice of Inquiry (Apr. 1, 2016); Orion Burk-Poole, Comments Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015, Notice of Inquiry (Apr. 1, 2016); James Church, Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015, Notice of Inquiry (Apr. 1, 2016); Chad Wild Clay, Comments Submitted in Response to U.S.

to U.S. Copyright Office’s Dec. 31, 2015, Notice of Inquiry (Apr. 1, 2016).

1002

See, e.g., Wikimedia Additional Comments at 11–12; Tr. at 312:20–313:7 (Apr. 8, 2019) (Abby Vollmer, GitHub)

(noting the potential effect of improper filtering on open source software projects, and that the result would be “a

broken software project”).

1003

See, e.g., Tr. at 116:12–18 (May 12, 2016) (Eric Cady, IFTA) (“IFTA’s position is that we advocate for staydown after

the ISP is notified of [full-length] content, particularly in the pre-release stage when a pirated film is made available

online without authorization in that pre-release period, which can devastate the member company’s business.”); Tr. at

92:6–9 (May 2, 2016) (Kathy Garmezy, DGA); Tr. at 91:18–22 (May 2, 2016) (David Kaplan, Warner Brothers

Entertainment Inc.). Cf. Urban et al. Empirical Study at 60 (describing the views of a rightsholder respondent, who

“favors systems that put up barriers to reposting content identical—i.e., identified through traditional hash matching

rather than looser fingerprinting algorithms—to what has already been taken down”).

U.S. Copyright Office Section 512 Report

190

staydown requirement, maintaining that rightsholders should continue to address each

appearance of the same content on an individual basis.

1004

Another oft-expressed concern is that requiring filtering technology could serve as an anti-

competitive barrier to entry that has the effect of entrenching the market dominance of current

platforms that have already invested significant time and money to develop sui generis filtering

technology like Content ID.

1005

As one participant puts it, such a requirement “does not lend itself

to small startups who are trying to innovate in a very crowded space with deeply entrenched

players.”

1006

While the DSM Copyright Directive does contain exemptions for smaller and new

entrants,

1007

several participants question the advisability or workability of such exemptions, with

one commenter noting that they create “perverse incentives to try to stay under those numbers[]

and not grow your company in a more organic way.”

1008

Finally, some OSPs note technological

and legal difficulties with implementing a true notice-and-staydown system.

1009

The likelihood that filters will become an anti-competitive barrier to entry depends in part

upon the market availability of third-party filtering technologies offered at a reasonable price on

non-discriminatory terms. While Audible Magic and Pex describe their offerings as being up to

the task, a potential anti-competitive concern remains to the extent that either of these

technologies are available only from a single source and do not have competitors offering equally

effective technology in the marketplace. The Copyright Office did not attempt a full-scale

investigation of marketplace availability and terms for such third-party filtering technologies, but

notes that that such an examination would be recommended before adopting any requirement

that would impose the use—either explicitly or implicitly—of filtering technologies.

1004

See, e.g., Tr. at 84:4–7 (May 3, 2016) (Matthew Schruers, CCIA) (arguing that the use of full-length content can

sometimes be fair use, and thus is not an appropriate proxy for infringement to be used in filtering decisions); Tr. at

78:2–4 (May 2, 2016) (Andrew Deutsch, DLA Piper) (declining to agree that filtering is appropriate addressing the

question of unlicensed, full length content, stating “[t]hat’s the job of direct copyright action by copyright owners

against the website”).

1005

See, e.g., Tr. at 329:6–330:2 (Apr. 8, 2019) (Corynne McSherry, EFF); Tr. at 330:18–331:20 (Apr. 8, 2019) (Rachel

Wolbers, Engine) (describing the EU DSM Copyright Directive’s carve-outs for GitHub and Wikimedia as “essentially

writing in companies that will now have an advantage and a leg up in their business model,” and noting that

mandating filtering technology would likewise serve to entrench companies like Google and Facebook, since “they now

have legislation that’s written in a way that helps protect their business models from potential new incumbents or new

entrants into the marketplace.”).

1006

Tr. at 23:21–24:1 (May 13, 2016) (Jeff Lyon, Fight for the Future).

1007

See Directive EU 2019/790 of the European Parliament and of the Council of 17 April 2019 on Copyright and Related

Rights in the Digital Single Market and Amending Directives 96/9/EC and 2001/29/EC, art. 17(6), 2019 O.J. (L. 130/92).

1008

Tr. at 331:1–7 (Apr. 8, 2019) (Rachel Wolbers, Engine).

1009

See, e.g., Google Initial Comments at 9–10 (enumerating concerns with implementation of a staydown requirement

and concluding that “it is both legally and technically difficult to imagine that a ‘staydown’ obligation could feasibly be

imposed on all OSPs that are covered by the DMCA safe harbors”).

U.S. Copyright Office Section 512 Report

191

There are reasons to be cautious regarding the adoption of a general staydown

requirement for OSPs. As noted above, adoption of a staydown requirement, with or without an

affirmative filtering requirement for all (or even most) OSPs, would represent a fundamental shift

of intermediary liability policy in the United States.

1010

The Office does not currently have

empirical evidence from countries that have adopted a widely-applicable staydown requirement

along the lines of what many rightsholders support, making it difficult to gauge the efficacy of

such a system, or to measure the potential speech and competition externalities that may result

from a widely-applicable filtering requirement. While a number of decisions by the Court of

Justice of the European Union (CJEU) have supported some version of a staydown requirement

when the requirement meets the proportionality test,

1011

the CJEU has explicitly rejected a

broadly-applicable filtering requirement for OSPs.

1012

Similarly, although lower courts in France

initially adopted a staydown requirement for infringing content, the high court rejected such a

requirement in 2012.

1013

Although many interpret Article 17 of the DSM Copyright Directive as

adopting a staydown requirement that requires the use of filtering technologies, most countries in

the European Union are still in the process of implementing the Directive into their national law,

a process that does not have to be complete until June 2021.

1014

1010

One Study comment referred to such a change as “no mere adjustment to the DMCA’s balance of burdens; it would

be closer to a demolition of the DMCA’s existing structure.” Bridy & Keller Initial Comments at 17. It is likely true that

universal notice-and-staydown requirement is outside the purview of what Congress envisioned in 1998. On the other

hand, as discussed in section VI.A.2 above, it is unlikely that Congress would have understood themselves to be

creating a regime that required a separate notice for every individual URL on which an instance of infringing content

appears, even when such infringing content already co-existed on the service alongside the instance that was the subject

of a takedown notice.

1011

See, e.g., Case C-324/09, L’Oréal SA et al. v. eBay International AG et al., [2011] ECR, I-06011, para. 127, 134,

http://curia.europa.eu/juris/document/document.jsf?text=&docid=107261&pageIndex=0&doclang=en&mode=lst&dir=&

occ=first&part=1&cid=197042 (OSPs can be required to use word filtering to “not only to bringing to an end

infringements of those rights by users of that market-place, but also to preventing further infringements of that kind.”).

1012

See Case C-360/10, Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v. Netlog NV, [2012] 2

CMLR 18, para. 38, http://curia.europa.eu/juris/document/document.jsf?text=&docid=119512&pageIndex=0

&doclang=en&mode=lst&dir=&occ=first&part=1&cid=196613 (injunction requiring a hosting provider to install a

filtering system is incompatible with Art. 15 of the EU E-Commerce Directive); Case C-70/10, Scarlet Extended SA v.

Société belge des auteurs, compositeurs et éditeurs SCRL (SABAM), [2011] ECR, I-1959, para. 40, http://curia.europa.eu/juris/

document/document.jsf?text=&docid=115202&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=19846

1 (restating the principles in favor of access providers).

1013

See Bac Films v. Google Inc. Civ. 1ère, 12 juillet 2012, Bull. civ. 1, nº 11-13666, https://www.legifrance.gouv.fr/

affichJuriJudi.do?idTexte=JURITEXT000026181926 (Fr.); André Rau vs. Google & Aufeminin.com Civ. 1ère, 12 juillet

2012, Bull civ. 1, nº 11-15165 11-15188, http://www.dalloz-actualite.fr/document/civ-1re-12-juill-2012-fs-pbi-n-11-15165

(Fr.).

1014

Note, however, that Germany has expressed its desire to implement Article 17 in a manner that avoids the use of

“’upload filters’ wherever possible.” Council of the European Union, Statement by Germany, 15 Apr. 2019, 7986/19

ADD 1 REV 2 (Interinstitutional File: 2016/0280(COD)), at ¶ 2, https://data.consilium.europa.eu/doc/document/ST-7986-

2019-ADD-1-REV-2/en/pdf. Two German professors have now put forth a legislative proposal that would implement

Article 17 in German law without requiring the widespread use of upload filters, instead relying upon a form of

extended collective licensing for uploaded content. See Rolf Schwartmann & Christian-Henner Hentsch, Stufenkonzept

U.S. Copyright Office Section 512 Report

192

A number of Study participants point to Germany’s Störerhaftung

1015

principle as an

example of a staydown regime that is already working in practice, but that doctrine appears to be

significantly more cabined than the type of staydown system advocated during the Study.

1016

In a

2013 opinion elaborating upon the doctrine, the German Federal Supreme Court found that

RapidShare had a heightened obligation to search for and remove additional copies of infringing

content as a result of the characteristics of the platform and associated marketing. The court cited

the following facts to support such a heightened obligation:

[I]ts structure bears the risk of massive copyright infringements, to an extent which

permits making the Defendant subject to significantly increased examination and action

obligations in order to prevent copyright infringements; [] the Defendant had gone

beyond the position of a neutral intermediary; [] at the time the infringements were

committed . . . Defendant had significantly targeted its service . . . at the massive

committing of copyright infringements; [] private users were encouraged to distribute the

uploaded files as widespread and extensively as possible; [] it is obvious that a download

frequency of more than 100,000 acts [as advertised by Defendants] cannot be reached

within the framework of confidential commercial or private communications, but only

with highly attractive, and therefore usually unlawful, content; [and] the Defendant

furthermore significantly enhanced unlawful activities via its service through the

awarding of Premium Points which was linked to the frequency of file download.

1017

To date, German courts have not interpreted Störerhaftung to require adoption of a universal

notice-and-staydown system, nor have they applied it to service providers dedicated to hosting

general user generated content, some of which may contain infringing material.

1018

In fact,

zur Umsetzung von Art. 17 der DSM-Richtlinie: Stufenkonzept gegen Overblocking durch Uploadfilter, KÖLNER

FORSCHUNGSSTELLE FÜR MEDIENRECHT DER TH KÖLN (Mar. 27, 2020), https://www.medienrecht.th-koeln.de/relaunch/wp-

content/uploads/2020/03/2020-03-03-Umsetzungsvorschlag-Art.-17.pdf (Gr.). For a discussion of the proposal in

English, see Paul Keller, A Better Way to Implement Article 17? New German Proposal to Avoid Overblocking, COMMUNIA

(Apr. 15, 2020), https://www.communia-association.org/2020/04/15/better-way-implement-article-17-new-german-

proposal-avoid-overblocking/.

1015

Translated generally as “breach of duty of care.”

1016

For an overview of German case law applying the Störerhaftung doctrine, see generally Jan Bernd Nordemann,

Liability for Copyright Infringements on the Internet: Host Providers (Content Providers)—The German Approach, 2 J. INTELL.

PROP., INFO. TECH. & ELECTRONIC COM. L. 37 (2011), https://www.jipitec.eu/issues/jipitec-2-1-2011/2962/

JIPITEC_Nordemann.pdf.

1017

Rapidshare AG v. Walther de Gruyter GmbH & Co. KG, Bundesgerichtshof [BGH] [Federal Court of Justice] Case

No. I ZR 79/12 (Aug. 15, 2013), NJW 2013, 3245 ¶ 13. An English translation of the case is available at

https://stichtingbrein.nl/public/2013-08-15%20BGH_RapidShare_EN.pdf.

1018

In fact the German high court rejected application of filtering requirements for UGC websites. OLG München,

Urteil v. 28.01.2016 (29 U 2798/15) ZUM 2016, https://www.gesetze-bayern.de/Content/Document/Y-300-Z-BECKRS-B-

2016-N-03388 (Ger.) (ruling against GEMA, a performers’ rights organization in Germany, in holding that YouTube

could not be held liable for damages for hosting copyrighted content without the copyright holder’s permission). The

German high court, however, has found that search providers can be required to use general word filters.

U.S. Copyright Office Section 512 Report

193

German courts have stated that Störerhaftung only applies after the content owner has taken

reasonable actions against either the user that originally committed the infringement or the

service provider.

1019

For these reasons, it is the opinion of the Office that a general staydown requirement

and/or mandatory OSP filtering should be adopted, if at all, only after significant additional

study, including of the non-copyright implications they would raise.

1020

In particular, the Office

believes that it would be advisable to wait until the DSM Copyright Directive has been

implemented in many of the EU member states in order to study the real-world impacts of such a

requirement.

b) Website Blocking

Some rightsholders also advocated for a more extensive system of no-fault injunctions to

address websites primarily dedicated to piracy.

1021

As Professor Urban noted in her study, many

of these websites are located abroad, beyond U.S. jurisdiction, which insulates them from any

likelihood of being forced to pay millions of dollars in statutory damages.

1022

Rightsholders

supporting the proposal of expanded injunctive relief report that such systems have been largely

effective in addressing the most egregious cases of infringement.

1023

There are different technologies and mechanisms available for blocking and filtering

websites primarily dedicated to copyright infringement. Most website blocking techniques block

websites either by preventing the users’ computer from resolving or accessing the domain name

(such as “copyright.gov”), or by denying access to the Internet Protocol address (“IP”) (such as

140.147.239.123) address at which the website is located.

1024

The three most widely used

Bundesgerichtshof [BGH] [Federal Court of Justice], Urteil v. 21.09.2017 (ZR 11/16) NJW 2018, 772, ¶¶ 69–70,

https://perma.cc/9R2V-HKV5.

1019

See LG München, Urteil v. 1.2.2018 (7 O 17752/17) BeckRS 2018, 2857 at 6 (English translation)

http://copyrightblog.kluweriplaw.com/wp-content/uploads/sites/49/2018/05/Translation-of-Decision-of-District-Court-

Munich.pdf).

1020

The Office agrees with those rightsholders that argue there is already adequate real-world evidence to support the

adoption of such requirements for a small subsection of OSPs, in particular file sharing services and other websites

primarily geared towards facilitating infringement. The Office believes, however, that most of these services properly

fall outside of the section 512 safe harbors, arguing in favor of liability for such services even in the absence of filtering

requirements. See supra section VI.A.1.c. Thus, the adoption of filtering requirements for such websites, in addition to

being unlikely to result in compliance, may further result in sowing confusion regarding whether such websites are

entitled to claim the protections of a safe harbor.

1021

See, e.g., AAP Additional Comments at 22; MPAA Additional Comments at 22–23. Prof. Urban notes a split among

rightsholders regarding support for additional website blocking authority. Urban et al. Empirical Study at 62–63.

1022

Urban et al. Empirical Study at 62.

1023

See, e.g., MPAA Additional Comments at 22; Tr. at 302:1–6 (Apr. 8, 2019) (Lui Simpson, AAP).

1024

At a very high level, in order to access a website, a user typically inputs the domain name/URL of the website they

wish to visit. The Domain Name Service (DNS) (which can be hosted by either the ISP or a third party service) then

U.S. Copyright Office Section 512 Report

194

techniques for website blocking are: (i) an ISP (or other provider) can remove the listing for that

domain name from the Domain Name System (“DNS”), resulting in the user’s computer being

unable to locate the website’s IP address and thus unable to access the website (this is known

generally as “DNS blocking” or “DNS filtering”); (ii) the ISP can apply a filter that inspects all

outgoing web traffic and either blocks access to particular listed websites (a “black list”) or allows

access only to particular listed websites (a “white list”) (this technique is usually known as “URL

blocking” or “URL filtering”; or (iii) the ISP can block traffic to the website’s IP address directly,

without changing the DNS registry (this is known generally as “IP blocking” or “IP filtering”).

1025

While there are various arguments as to why one method is more effective (and thus “better”),

1026

the end result is often the same: non-determined users either receive an error message or are

redirected to an alternative location.

During the Study, OSPs and user advocacy groups argue against expanded website

blocking relief on both technical

1027

and policy grounds.

1028

EFF echoes a number of website

blocking opponents when it asserts that website blocking systems “introduce dangerous

mechanisms for Internet censorship, interfere with users’ fundamental rights, and, often, prove

ineffective in solving the problem of online copyright infringement.”

1029

On the technical front,

several commenters point to the ineffectiveness of certain types of blocking.

1030

In response to

these draw backs, proponents note the importance of a system that allows rightsholders to

efficiently update any injunctions to address technological attempts to evade blocks.

1031

resolves the domain name by matching it to the corresponding Internet Protocol (IP) address, which is the numerical

location code for the server hosting the website. See How the Domain Name System (DNS) Works, VERISIGN,

https://www.verisign.com/en_US/website-presence/online/how-dns-works/index.xhtml.

1025

INTERNET SOC’Y, PERSPECTIVES ON INTERNET CONTENT BLOCKING: AN OVERVIEW 8–9 (Mar. 2017),

https://www.internetsociety.org/wp-content/uploads/2017/03/ContentBlockingOverview.pdf.

1026

CORY, HOW WEBSITE BLOCKING IS CURBING DIGITAL PIRACY 8–11 (discussing the advantages of different forms of

blocking mechanisms).

1027

See ICC Initial Comments at 2 (stating that “[t]he open nature of the Internet makes eradication of infringement

impossible and website blocking ineffective”); see also INST. FOR INFO. LAW, FILESHARING 2©12: DOWNLOADING FROM

ILLEGAL SOURCES IN THE NETHERLANDS 37 (2012), https://www.ivir.nl/publicaties/download/174.pdf.

1028

See, e.g., EFF, Additional Comments Submitted in Response to U.S. Copyright Office’s Nov. 8, 2016, Notice of

Inquiry at 19–20 (Feb. 21, 2017) (“EFF Additional Comments”).

1029

See, e.g., EFF Additional Comments at 19.

1030

See, e.g., EFF Additional Comments at 19; Tr. at 364:18–365:6 (Apr. 8, 2019) (Stan Adams, CDT) (noting that the

increasing use of private DNS operators poses a challenge for ISPs to enact DNS-based website blocking).

1031

See, e.g., Tr. at 353:2–15 (Apr. 8, 2019) (Lui Simpson, AAP) (“I will note that[,] because it is of limited jurisdiction,

there are limits to the effectiveness of this particular remedy [website blocking]. Obviously, a site when it is blocked on

a particular or within a particular jurisdiction, sometimes the operator of that website will simply try and move to a

different server . . . . [I]n Europe . . . . [t]he orders themselves can be amended, so that the new sites . . . can then be

included in the previous orders.”).

U.S. Copyright Office Section 512 Report

195

According to opponents, free speech concerns are particularly implicated by any website

blocking mechanism targeted at the domain name or IP address level, because the block applies

to the an entire website (or group of websites), not just the page(s) that contain infringing

content.

1032

These concerns are not alleviated by assertions by rightsholders that the use of such

injunctive remedies could be limited to websites primarily intended to facilitate piracy, as they

point to incidences where website blocking orders, particularly those based on IP blocking, have

been improperly implemented, such as one incidence in Australia where almost 250,000 websites

that shared an IP address with the target website were inadvertently blocked.

1033

As many of the

user advocacy groups and OSPs note, free speech concerns are particularly impacted by IP

blocking—because a single IP address is often shared by multiple sites, it can lead to over-

blocking by restricting access to unrelated, otherwise legal sites.

Unlike universal staydown requirements, there is some (limited) empirical evidence from

a number of countries regarding the use injunctive relief, most often in the form of website

blocking orders. As noted earlier, more than 40 countries have adopted or have an obligation to

adopt some form of no-fault injunctive relief against pirate websites, although only about two

dozen actually issued such website blocking orders between 2006 and 2018.

1034

While some of

these jurisdictions have fewer protections for free speech (as compared to the familiar First

Amendment principles here in the United States), proponents point to the European Union, in

particular Article 8(3) of the InfoSoc Directive, as a model for updating U.S. intermediary liability

law.

1035

Nonetheless, the data regarding the efficacy of website blocking versus the impact on free

1032

See Domain Name System (DNS), ELECTRONIC FRONTIER FOUNDATION, https://www.eff.org/free-speech-weak-link/dns

(“[DNS blocking] can prevent users from accessing lawful as well as unlawful speech, in part because it is often easier

for ISPs and governments to prevent access to entire domain names, including lawful speech on rather than precisely block

access to specific objectionable content.”); CDT, THE PERILS OF USING THE DOMAIN NAME SYSTEM TO ADDRESS UNLAWFUL

INTERNET CONTENT 2-3 (2011), https://cdt.org/wp-content/uploads/pdfs/Perils-DNS-blocking.pdf.

1033

See Ben Grubb, How ASIC's Attempt to Block One Website Took Down 250,000, THE AGE (June 5, 2013, 10:29 AM),

https://www.theage.com.au/technology/how-asics-attempt-to-block-one-website-took-down-250000-20130605-

2np6v.html.

1034

See In the Matter of an Application Pursuant to Sections 24, 24.1, 36, and 701(a) of the Telecommunications Act, 1993 to

Disable On-line Access to Piracy Sites, Application Before the Canadian Radio-television and Telecommunications

Commission 4–6 (Mar. 29, 2018) (written intervention of the Motion Picture Association–Canada), reposted at

https://torrentfreak.com/images/mpa-can.pdf; Nigel Cory, The Normalization of Website Blocking around the World in the

Fight against Piracy Online, ITIF (June 12, 2018), https://itif.org/publications/2018/06/12/normalization-website-blocking-

around-world-fight-against-piracy-online.

1035

See, e.g., Tr. at 350:6–13 (Apr. 8, 2019) (Stan McCoy, Motion Picture Association EMEA) (“[A]rticle 8(3) [of the

InfoSoc Directive] has been in place now for 18 years. It’s functioning well. None of the dire consequences that have

sometimes been forecasted around injunctive relief measures like this have come to pass. And I want to emphasize, for

this audience in particular, the complementarity of an injunctive relief regime to the goals of a notice-and-takedown

regime.”). Member countries of the EU have taken different approaches to implementing such injunctive systems.

While many countries have made injunctive relief a judicial remedy, some countries like Italy, have implemented

website blocking through an administrative agency subject to judicial oversight. See, e.g., Ali Amirmahani, Digital

Apples and Oranges: A Comparative Analysis of Intermediary Copyright Liability in the United States and European Union, 30

BERKELEY TECH. L.J. 865, 883–894 (2015) (generally discussing blocking measures in the EU); Gianluca Campus, Italian

Public Enforcement of Online Copyright Infringement: New Powers and Procedures for AGCOM, KLUWER COPYRIGHT BLOG,

U.S. Copyright Office Section 512 Report

196

speech is limited and largely anecdotal—only a handful of countries in the EU have actually

issued website blocking orders, and most empirical studies have focused almost exclusively on

whether such blocking orders have impacted piracy rates. While some of these studies report

statistically significant reductions in piracy,

1036

other studies have shown smaller or no

reductions.

1037

Thus, it is difficult to weigh the benefit of such orders against the potential speech

impacts, arguing in favor of additional, dedicated study before adopting such a proposal.

3. Legislation Targeting Third-Party Providers

Another possible method for addressing online infringement that has been discussed both

during the Study and outside of it is legislation targeting third-party OSPs that facilitate the

business operations of piracy websites.

1038

Such legislation would formalize the “follow-the-

money” approach currently undertaken voluntarily by a number of the larger payment

processors and advertising networks.

1039

As noted in the above discussion of the applicability of the four section 512 safe harbors,

the question of liability for payment processors has arisen in a few section 512 cases, but the only

court to address the question on the merits found the facilitation of infringement by payment

processors too attenuated to support vicarious liability.

1040

The Office is of the opinion that such

(Dec. 14, 2018), http://copyrightblog.kluweriplaw.com/2018/12/14/italian-public-enforcement-of-online-copyright-

infringement-new-powers-and-procedures-for-agcom/.

1036

See Brett Danaher et al., Website Blocking Revisited: The Effect of the UK November 2014 Blocks on Consumer Behavior at

16 (Apr. 18, 2016) (unpublished article), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2766795; see also

RETTIGHEDSALLIANCEN, ANNUAL REPORT 2017 5 (2018), https://rettighedsalliancen.dk/wp-

content/uploads/2018/08/ENGB_RettighedsAlliancen2018.pdf (noting average 75% decrease in Danish IP traffic to

piracy sites in the wake of DNS blocking orders); CORY, HOW WEBSITE BLOCKING IS CURBING DIGITAL PIRACY 12–17.

1037

See Michael Geist, The Case against the Bell Coalition’s Website Blocking Plan, Part 8: The Ineffectiveness of Website

Blocking, MICHAEL GEIST (Feb. 22, 2018), http://www.michaelgeist.ca/2018/02/case-bell-coalitions-website-blocking-plan-

part-8-ineffectiveness-website-blocking/ (and studies cited therein).

1038

See, e.g., Tr. at 129:8–12 (May 13, 2016) (Fred von Lohmann, Google) (“Frankly, we have said since SOPA that we

support legislation that would have addressed the payments and the ads, the follow-the-money issue. We’ve been a

consistent supporter of a follow-the-money approach because we think it’s effective.”); DEP’T OF COMMERCE INTERNET

POLICY TASK FORCE, COPYRIGHT POLICY, CREATIVITY, AND INNOVATION IN THE DIGITAL ECONOMY 67–70 (2013),

http://www.uspto.gov/sites/default/files/news/publications/copyrightgreenpaper.pdf.

1039

A TAG benchmarking study from 2017 found that revenue from premium ad placements on pirate websites had

been reduce to less than 20%. Ernst & Young, Measuring Digital Advertising Revenue to Infringing Sites: TAG US

Benchmarking Study (Sept. 2017), https://cdn2.hubspot.net/hubfs/2848641/Measuring%20digital%20advertising%20

revenue%20to%20infringing%20sites-1.pdf. WIPO has recently launched an online database to collect a list of pirate

websites in one location, with access available to member countries. See Building Respect for Intellectual Property, WIPO,

https://www.wipo.int/wipo-alert/en/. For more information on various follow-the-money programs, see supra section

IV.B.2.

1040

Perfect 10, Inc. v. Visa Int’l Serv. Ass’n, 494 F.3d 788, 806 (9th Cir. 2007). But see id., 494 F.3d at 810–11 (Kozinski, J.,

dissenting) (“[Payment processors] knowingly provide a financial bridge between buyers and sellers of pirated works,

enabling them to consummate infringing transactions, while making a profit on every sale. If such active participation

in infringing conduct does not amount to indirect infringement, it's hard to imagine what would. By straining to

U.S. Copyright Office Section 512 Report

197

issues are properly outside the scope of this Report, and notes that the parties likely to be affected

by such legislation were not participants in the Study process. Further, adoption of any such

proposals would necessarily include an evaluation of considerations beyond the copyright laws,

and are thus properly outside the scope of the current Study. Accordingly, the Office declines to

make a recommendation regarding such approaches.

VII. CONCLUSION

In this Report, the Copyright Office has comprehensively considered the question

Congress asked us to study: is the balance that Congress devised in section 512 more than twenty

years ago working for all concerned parties? In the DMCA, Congress intended to support the

continued development and growth of the then-nascent internet and e-commerce sectors. To

achieve that, Congress wanted to give OSPs greater certainty about their legal exposure, while

providing rightsowners with reasonable assurance that they would be protected from massive

online infringement. Section 512 and its safe harbors were designed to achieve those goals by

providing “strong incentives for service providers and copyright owners to cooperate to detect

and deal with copyright infringements that take place in the online networked environment.”

1041

The Copyright Office concludes that the balance Congress intended when it established

the section 512 safe harbor system is askew. The Office reviewed more than 92,000 written

comments, hosted five roundtables, and analyzed decades of case law. While OSPs, supported in

many aspects by user advocacy groups, report satisfaction with the current operation of the safe

harbors, that view is not shared by the other intended beneficiaries of the section 512 system,

including authors, creators, and rightsholders of all sorts and sizes. There is no doubt that the

internet, in all its various component parts, has grown successfully and exponentially over the

past two decades. However, despite the advances in legitimate content options and delivery

systems, and despite the millions of takedown notices submitted on a daily basis, the scale of

online copyright infringement and the lack of effectiveness of section 512 notices to address that

situation remain significant problems. While the Office is mindful of those creators who have

been able to leverage new technologies to their benefit, their economic success does not provide

comfort to the many other creators who have seen their livelihoods impacted drastically by

ongoing infringement of their works online and for which they can achieve no relief.

Additionally, even with some important cooperative efforts at the margins, the degree and breath

of cooperation between OSPs and rightsholders that was anticipated in 1998 has not come to full

fruition.

absolve defendants of liability, the majority leaves our law in disarray.”). See also CCBill, 488 F.3d at 1116 (rejecting the

plaintiff’s argument that a payment processor “is not eligible for immunity under § 512(a) because it does not itself

transmit the infringing material” and remanding to the district court for a determination of whether the payment

processor qualified as a section 512(a) mere conduit service provider).

1041

H.R. REP. NO. 105-796, at 72 (1998) (Conf. Rep.).

U.S. Copyright Office Section 512 Report

198

In our examination of the balance established in the congressional construction of section

512, the Office has outlined five principles that guided its review, identified its findings, and

made numerous recommendations to Congress for its consideration. These recommendations

cover areas of how OSPs qualify for the four safe harbors, how the various knowledge

requirements work in practice, and how the notice-and-takedown system operates. The Office is

not recommending any wholesale changes to section 512, instead electing to point out the

numerous areas where Congress may wish to fine-tune section 512’s current operation in order to

better balance the rights and responsibilities of OSPs and rightsholders, in alignment with its

objectives when it passed the DMCA. The Office also recommends several non-statutory areas of

untapped potential to increase the efficacy of the section 512 system and recommends additional

stakeholder and government focus in the areas of education, voluntary cooperation, and the use

of standard technical measures. The Office will be rolling out a new website—

takedown notices and counter-notices.

Should Congress choose to continue to support the balance it devised in section 512 and

move forward on the legislative issues identified in this Report, then the Office harbors some

optimism that a path toward rebuilding the section 512 balance could be found. The Copyright

Office is also mindful that the opportunities and challenges faced by everyone in the online

environment—creators (large, medium, and small), OSPs (large, medium, and small), and users

(of all sizes and in many sectors)—are very different today than 1998. Congress could choose to

reevaluate how it perceives any balancing factors in the current environment, as well as consider

other new measures that would go beyond the current constructs of section 512. To that end, this

Report includes illustrative information on developments involving online intermediary liability

in other countries. It also identifies several proposals submitted by commenters on new

approaches that the Office sees as going beyond the original construct of section 512. For those

issues—specifically notice-and-staydown and website blocking—the Office believes that

additional study, including of potential non-copyright impacts with public input, would be

needed in order to explore the potential contours of any such future proposals. Those kinds of

legislative decisions, such as defining any new or revised balances in the section 512 system, are

in the hands of Congress, and the Office makes no recommendations with respect to those

decisions. The Copyright Office stands ready to continue our work to provide additional advice

to Congress.

Section 512 of title 17

u.S. copyright office

appendix a federal register notices

81862

Federal Register / Vol. 80, No. 251/ Thursday, December 31, 2015 / Notices

Pub. L. 105–304, 112 Stat. 2860 (1998).

See Internet Users, Internet Live Stats (Dec. 1,

2015), http://www.internetlivestats.com/internet-

users/#trend (In 1998, there were only 188 million

internet users; today, there are over 3.25 billion.).

See The History of Social Networking, Digital

Trends (Aug. 5, 2014), http://

www.digitaltrends.com/features/the-history-of-

social-networking/ (providing a timeline for the

development of social networks).

144 Cong. Rec. S11,889 (daily ed. Oct. 8, 1998)

(statement of Sen. Orrin Hatch).

See H.R. Rep. No. 105–551, pt. 2, at 21 (1998)

(noting that the DMCA, including section 512 of

title 17, ‘‘balance[s] the interests of content owners,

on-line and other service providers, and

information users in a way that will foster the

continued development of electronic commerce and

the growth of the [i]nternet’’).

Id. at 49–50.

S. Rep. No. 105–190, at 19 (1998).

See David Price, Sizing the Piracy Universe 3

(2013), http://www.netnames.com/digital-piracy-

sizing-piracy-universe (infringing bandwidth use

increased by 159% between 2010 to 2012 in North

America, Europe, and [the] Asia-Pacific, which

account for more than 95% of global bandwidth

use).

Hearing Before the H. Comm. on the Judiciary,

114th Cong. 6 (2015) (statement of Maria A.

Pallante, Register of Copyrights and Director, U.S.

appropriate study of section 512 of the DMCA . . .

. [T]here are challenges now that warrant a granular

review.’’); id. at 49 (statement of Rep. John Conyers,

Jr., Ranking Member, H. Comm. on the Judiciary)

(‘‘[T]here are policy issues that warrant studies and

analysis, including section 512, section 1201, mass

digitization, and moral rights. I would like the

on those policy issues . . . .’’).

[FR Doc. 2015–32908 Filed 12–30–15; 8:45 am]

BILLING CODE 4410–15–C

LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015–7]

Section 512 Study: Notice and Request

for Public Comment

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of inquiry.

SUMMARY

: The United States Copyright

Office is undertaking a public study to

evaluate the impact and effectiveness of

the DMCA safe harbor provisions

contained in 17 U.S.C. 512. Among

other issues, the Office will consider the

costs and burdens of the notice-and-

takedown process on large- and small-

scale copyright owners, online service

providers, and the general public. The

Office will also review how successfully

section 512 addresses online

infringement and protects against

improper takedown notices. To aid in

this effort, and to provide thorough

assistance to Congress, the Office is

seeking public input on a number of key

questions.

DATES

: Written comments must be

received no later than 11:59 p.m.

Eastern Time on March 21, 2016. The

Office will be announcing one or more

public meetings to discuss issues related

to this study, to take place after initial

written comments are received, by

separate notice in the future.

ADDRESSES

: All comments should be

submitted electronically. Specific

instructions for the submission of

comments will be posted on the

www.copyright.gov/policy/section512

on or before February 1, 2016. To meet

accessibility standards, all comments

must be provided in a single file not to

exceed six megabytes (MB) in one of the

following formats: Portable Document

File (PDF) format containing searchable,

accessible text (not an image); Microsoft

Word; WordPerfect; Rich Text Format

(RTF); or ASCII text file format (not a

scanned document). The form and face

of the comments must include the name

of the submitter and any organization

the submitter represents. The Office will

post all comments publicly in the form

that they are received. If electronic

submission of comments is not feasible,

please contact the Office using the

contact information below for special

instructions.

FOR FURTHER INFORMATION CONTACT

Jacqueline C. Charlesworth, General

Counsel and Associate Register of

Copyrights, by email at jcharlesworth@

loc.gov or by telephone at 202–707–

8350; or Karyn Temple Claggett,

Director of the Office of Policy and

International Affairs and Associate

loc.gov or by telephone at 202–707–

8350.

SUPPLEMENTARY INFORMATION

I. Background

Congress enacted section 512 in 1998

as part of the Digital Millennium

At that time,

less than 5% of the world’s population

used the internet,

and bulletin board

services were the popular online

platforms.

Even then, however,

Congress recognized that ‘‘the [i]nternet

. . . made it possible for information—

including valuable American

copyrighted works—to flow around the

globe in a matter of hours,’’ and, as a

consequence, copyright law needed to

be ‘‘set . . . up to meet the promise and

the challenge of the digital world.’’

In enacting section 512, Congress

created a system for copyright owners

and online entities to address online

infringement, including limitations on

liability for compliant service providers

to help foster the growth of internet-

based services.

The system reflected

Congress’ recognition that the same

innovative advances in technology that

would expand opportunities to

reproduce and disseminate content

could also facilitate exponential growth

in copyright infringement. Accordingly,

section 512 was intended by Congress to

provide strong incentives for service

providers and copyright owners to

‘‘cooperate to detect and deal with

in the digital networked environment,’’

as well as to offer ‘‘greater certainty to

service providers concerning their legal

exposure for infringements that may

occur in the course of their activities.’’

Congress was especially concerned

about the liability of online service

providers for infringing activities of

third parties occurring on or through

their services. To address this issue,

Congress created a set of ‘‘safe

harbors’’—i.e., limitations on copyright

infringement liability—‘‘for certain

common activities of service

providers.’’

But the safe harbors are not

automatic. To qualify for protection

from infringement liability, a service

provider must fulfill certain

requirements, generally consisting of

implementing measures to

expeditiously address online copyright

infringement.

Recent research suggests that the

volume of infringing material accessed

via the internet more than doubled from

2010 to 2012, and that nearly one-

quarter of all internet bandwidth in

North America, Europe, and Asia is

devoted to hosting, sharing, and

acquiring infringing material.

While

Congress clearly understood that it

would be essential to address online

infringement as the internet continued

to grow, it was likely difficult to

anticipate the online world as we now

know it—where, each day, users post

hundreds of millions of photos, videos

and other items, and service providers

receive over a million notices of alleged

infringement.

As observed by the House Judiciary

Committee’s Ranking Member in the

course of the Committee’s ongoing

multi-year review of the Copyright Act,

and consistent with the testimony of the

the operation of section 512 poses

policy issues that warrant study and

analysis.

Section 512 has also been a

focus of the U.S. Department of

Commerce in recent years, which has

noted ambiguities in the application of

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Federal Register / Vol. 80, No. 251 / Thursday, December 31, 2015 / Notices

U.S. Dep’t of Commerce Internet Policy Task

Force, Copyright Policy, Creativity, and Innovation

in the Digital Economy 54, 56 (Jul. 2013), http://

www.uspto.gov/sites/default/files/news/

publications/copyrightgreenpaper.pdf (‘‘Copyright

Policy, Creativity, and Innovation in the Digital

Economy’’); Dep’t of Commerce Internet Policy Task

Force, DMCA Multistakeholder Forum, DMCA

Notice-and-Takedown Processes: List of Good, Bad,

and Situational Practices 3 (2015), http://

www.uspto.gov/sites/default/files/documents/

DMCA_Good_Bad_and_Situational_Practices_

Document-FINAL.pdf (‘‘Dep’t of Commerce

Multistakeholder Forum Recommended Practices’’).

17 U.S.C. 512(a)–(d).

Id. at 512(j)(1)(A).

Id. at 512(j)(1)(B).

A service provider must adopt, ‘‘reasonably

implement[ ],’’ and inform subscribers and account

holders of a policy ‘‘that provides for the

termination in appropriate circumstances of . . .

repeat infringers.’’ Id. at 512(i)(1)(A).

Id. at 512(i)(1)(B), (i)(2).

Id. at 512(b)(2)(E), (c)(1)(C), (d)(3). The process

for notification under the 512(c) and (d) safe

harbors is set out in 512(c)(3); the process differs

somewhat under the 512(b) safe harbor in that, in

addition to following the requirements of 512(c)(3),

the complaining party must also confirm that the

content or link has been removed or disabled by the

originating site or that a court has ordered that it

be removed or disabled.

Id. at 512(c)(2). Although section 512(d) does

not itself expressly require service providers to

designate an agent to receive notifications of

infringement, it incorporates the notice provisions

of section 512(c)(3), which require that notices be

sent to ‘‘the designated agent of the service

provider.’’ The statutory scheme thus indicates that

service providers operating under section 512(d)

would also designate agents to receive takedown

notices. See id. at 512(c)(3).

Id. at 512(c)(3)(A)(i)–(vi).

See id. at 512(c)(3)(B)(i) (‘‘[A] notification . . .

that fails to comply substantially . . . shall not be

considered . . . in determining whether a service

provider has actual knowledge or is aware of facts

or circumstances from which infringing activity is

apparent.’’); see also Perfect 10, Inc. v. CCBill LLC,

488 F.3d 1102, 1112–14 (9th Cir. 2007) (‘‘CCBill

LLC’’) (‘‘[A] service provider will not be deemed to

have notice of infringement when ‘the notification

. . . fails to comply substantially with all the

provisions of [17 U.S.C. 512(c)(3)(A)].’ ’’).

See 17 U.S.C. 512(c), (d).

the safe harbor and encouraged service

providers and rightsholders to discuss

and pursue voluntary improvements.

The present study will review the

statutory requirements of section 512

and evaluate its current effectiveness

and impact on those who rely upon it.

The key aspects of section 512 that are

the subject of this review, including

notable legal and practical

developments, are summarized below.

A. Overview of Section 512 Safe Harbors

Section 512 provides safe harbors

from infringement liability for online

service providers that are engaged in

qualifying activities and that also meet

certain eligibility requirements. There

are four distinct safe harbors, detailed in

sections 512(a), (b), (c), and (d),

respectively. These safe harbors are

available when a service provider

engages in one or more of the following

corresponding activities: (a) Serving as a

conduit for the automatic online

transmission of material as directed by

third parties; (b) caching (i.e.,

temporarily storing) material that is

being transmitted automatically over the

internet from one third party to another;

direction of a user on a service

provider’s system or network; or (d)

referring or linking users to online sites

using information location tools (e.g., a

search engine).

A service provider that meets the

relevant eligibility requirements for one

or more of the safe harbors is not liable

for monetary relief and is subject only

to limited injunctive relief for infringing

activities conducted on or through its

system or network.

In the case of a

service provider that qualifies for a safe

harbor under 512(b), (c), or (d), this

injunctive relief is limited to: (1)

Disabling access to infringing material;

(2) terminating the infringer’s

account(s); and (3) providing such other

relief as may be necessary to address

infringement at a particular online

location; provided, however, that the

relief is ‘‘the least burdensome [form of

relief] to the service provider.’’

For a

service provider that qualifies for the

512(a) safe harbor, the court may order

only termination of an infringer’s

account(s) or blocking of access to a

‘‘specific, identified, online location

outside the United States.’’

In order to qualify for the limitation

on liability provided under section

512(a), (b), (c), or (d), the service

provider must comply with certain

threshold requirements. Two of these

requirements apply to all four safe

harbors: (1) The adoption and

reasonable implementation of a policy

to terminate ‘‘repeat infringers’’;

and

(2) the accommodation of ‘‘standard

technical measures’’ that identify or

protect copyrighted works and have

been developed according to broad

consensus between copyright owners

and service providers, to the extent any

such measures exist.

A service

provider that acts as a mere conduit for

online transmissions qualifies for the

limitation on liability provided by

section 512(a) if the provider satisfies

these two threshold requirements.

Service providers seeking protection

under the safe harbors in section 512(b),

(c), or (d), however, must, in addition,

maintain a compliant notice-and-

takedown process by responding

expeditiously to remove or disable

access to material claimed to be

infringing upon receipt of proper notice

from a copyright owner or the owner’s

authorized agent.

A service provider

seeking to avail itself of the section

512(c) safe harbor for user-posted

content is further required to designate

an agent to receive notifications of

claimed infringement and provide

contact information for the agent on its

Web site and to the Copyright Office,

which, in turn, is to maintain a public

directory of such agents.

The statute prescribes that a copyright

owner’s takedown notice must include

‘‘substantially the following’’: (i) The

signature of the copyright owner or an

authorized agent (i.e., the complaining

party); (ii) identification of the

copyrighted work claimed to have been

infringed, or, if multiple works are on a

single site, ‘‘a representative list of such

works’’; (iii) identification of the

infringing material or activity (or the

reference or link to such material) and

‘‘information reasonably sufficient’’ to

permit the service provider to locate the

material (or the reference or link); (iv)

contact information for the complaining

party; (v) a statement that the

complaining party has ‘‘a good faith

belief that use of the material in the

manner complained of is not authorized

by the copyright owner, its agent, or the

law’’; and (vi) a statement that the

information is accurate and, under

penalty of perjury, that the complaining

party is authorized to act on behalf of

the copyright owner.

A copyright

owner’s communication that does not

substantially comply with these criteria

will not serve as effective notice for

purposes of the statutory process.

Further, under section 512(f), as

discussed more fully below, ‘‘[a]ny

person who knowingly materially

misrepresents . . . that material or

activity is infringing’’ can be held liable

for any damages, including costs and

attorneys’ fees, incurred by an alleged

infringer who is injured by the

misrepresentation.

In addition to responding to takedown

notices, service providers that seek

protection under the section 512(c) and

(d) safe harbors must also act

expeditiously to remove or disable

access to material when they have

‘‘actual knowledge’’ of infringement or,

in the absence of such actual

knowledge, when they have

‘‘aware[ness] of facts or circumstances

from which infringing activity is

apparent’’—the ‘‘awareness’’ standard

often referred to as ‘‘red flag’’

knowledge.

But, while service

providers are not free to ignore

infringement of which they have actual

or red flag knowledge, section 512 at the

same time provides that an online entity

has no duty to ‘‘monitor[ ] its service or

affirmatively seek[ ] facts indicating

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Id. at 512(m)(1).

Id. at 512(c)(1)(B), (d)(2).

See id. at 512(c)(1)(B), (d)(2).

Id. at 512(g)(1).

Id. at 512(g)(3).

Id. at 512(g)(2)(C).

Id. at 512(f).

See Section 512 of Title 17: Hearing Before the

Subcomm. on Courts, Intellectual Prop., & the

Internet of the H. Comm. on the Judiciary, 113th

Cong. 3 (2014) (‘‘Section 512 Hearing’’) (written

statement of Rep. Jerrold Nadler) (noting that in

2013, Google received notices requesting removal of

approximately 230 million items); Joe Mullin,

Google Handled 345 Million Copyright Takedowns

in 2014, Ars Technica (Jan. 6, 2015), http://

arstechnica.com/tech-policy/2015/01/google-

handled-345-million-copyright-takedowns-in-2014.

Google, How Google Fights Piracy 15 (2013),

https://docs.google.com/file/d/

0BwxyRPFduTN2dVFqYml5UENUeUE/

edit?pli=1#!.

See, e.g., TheFlo, White Paper: Audio

Fingerprinting, Maximum PC (Apr. 3, 2009), http://

www.maximumpc.com/white-paper-audio-

fingerprinting/ (explaining the use of algorithms to

create unique ‘‘audio fingerprints’’ to identify

sound recordings); What is a Hash Value?, Pinpoint

Labs (Dec. 10, 2010), http://pinpointlabs.com/2010/

12/what-is-a-hash-value/ (explaining use of hash

values for text, audio, and video); Dep’t of

Commerce Multistakeholder Forum Recommended

Practices (discussing use of automated tools to

identify infringing material).

See, e.g., Section 512 Hearing at 9 (written

statement of Sean M. O’Connor, Entrepreneurial

Law Clinic, University of Washington (Seattle))

(‘‘[T]here are takedown notices now filed on

millions of posts every month. That is clearly

unsustainable.’’); Copyright Policy, Creativity, and

Innovation in the Digital Economy 56 (‘‘[R]ight

holders and ISPs alike have identified respects in

which [the notice-and-takedown system’s]

operation can become unwieldy or burdensome.’’).

See Section 512 Hearing at 100 (statement of

Rep. Doug Collins) (‘‘[I]ndividual songwriters and

the independent filmmakers . . . often have limited

or no technical expertise or software at their

disposal . . . .’’); id. at 88–89 (2014) (written

statement of Sandra Aistars, Copyright Alliance)

(Independent authors and creators ‘‘lack the

resources of corporate copyright owners’’ and

instead issue ‘‘takedown notices themselves, taking

time away from their creative pursuits.’’).

Trevor Little, Google and Microsoft Outline the

Challenges Facing Online Intermediaries, World

Trademark Rev. (Mar. 1, 2013), http://

www.worldtrademarkreview.com/blog/

detail.aspx?g=DFF24612-D6F7-4ED2-BFDB-

383724E93D57 (quoting symposium comments by a

vice president at Fox Group Legal).

Section 512 Hearing at 35 (written statement of

Paul Doda, Elsevier) (The ‘‘same books are

repeatedly re-uploaded on the same sites hundreds

of times after being taken down . . . .’’); id. at 57

(written statement of Maria Schneider, musician)

(‘‘As fast as I take my music down, it reappears

again on the same site—an endless whac-a-mole

game.’’).

infringing activity, except to the extent

consistent with a standard technical

measure.’’

Finally, to qualify for the section

512(c) and (d) safe harbors, a service

provider must not ‘‘receive a financial

benefit directly attributable to the

infringing activity, in a case in which

the service provider has the right and

ability to control such activity.’’

The

statutory financial benefit/right to

control test does not incorporate a

knowledge element.

In addition to the general limitations

on infringement liability, the statute

provides specific protections for service

providers that remove material in

response to takedown notices, as well as

for users who post material that is

claimed to be infringing. Under section

512, a service provider is not liable for

the good-faith removal or disabling of

access to material ‘‘claimed to be

infringing or based on facts or

circumstances from which infringing

activity is apparent’’—even material not

ultimately found to be infringing—so

long as the provider takes reasonable

steps to promptly notify the user who

posted the material that it has been

removed and also complies, as

applicable, with a statutory counter-

notification process.

Section 512(g) allows a user whose

content has been removed in response

to a takedown notice to submit a

counter notification to a service

provider’s designated agent requesting

that the content be reposted. The

counter notification must include: (i)

The signature of the subscriber (i.e., the

counter-notifying party); (ii)

identification of the material that was

removed or to which access was

disabled, as well as the location where

it previously appeared; (iii) a statement

under penalty of perjury that the

subscriber has a ‘‘good faith belief’’ that

the material ‘‘was removed or disabled

as a result of mistake or

misidentification of the material to be

removed or disabled’’; and (iv) the

subscriber’s contact information, as well

as a statement that the subscriber

consents to the jurisdiction of the

federal district court for the relevant

judicial district and agrees to accept

service of process from the party who

provided the takedown notice (or that

party’s agent).

To preserve its safe

harbor immunity, the service provider

must repost the content within 10 to 14

business days of receiving the counter

notification unless the service provider

first receives notice from the party who

provided the takedown notice that a

judicial action has been filed ‘‘seeking

. . . to restrain the subscriber from

engaging in infringing activity relating

to the material on the service provider’s

system or network.’’

As in the case of

misrepresentations in takedown notices,

under section 512(f), any person who

knowingly materially misrepresents that

‘‘material or activity was removed or

disabled by mistake or

misidentification’’ may be held liable

for monetary damages, including costs

and attorneys’ fees.

B. Key Developments

Since the enactment of section 512,

stakeholders have adopted practices and

systems to implement it, and courts

have been called upon to interpret its

provisions—from eligibility for safe

harbors to the requirements for valid

takedown notices to the standards that

govern misrepresentations in the

notification process. Some stakeholders

have created best practices, entered into

voluntary agreements to streamline

enforcement procedures, and/or

pursued other non-judicial approaches.

Notwithstanding these developments,

many on both sides of the equation

express significant frustration with the

process. A brief overview of the most

salient issues follows.

Notice-and-Takedown Process

Today, copyright owners send

takedown notices requesting service

providers to remove and disable access

to hundreds of millions of instances of

alleged infringement each year.

The

number of removal requests sent to

service providers has increased

dramatically since the enactment of

section 512. For example, one search

engine now ‘‘receive[s] removal requests

for more URLs every week than [it] did

. . . from 1998 to 2010 combined.’’

Technology has come to play a

significant role in the notice-and-

takedown process, as automated

processes that use fingerprinting, hash

values, and keyword/metadata searches

can identify movies, sound recordings,

and other types of content that is being

posted and disseminated.

But

regardless of increasing technological

capabilities, stakeholders frequently

voice concerns about the efficiency and

efficacy—not to mention the overall

sustainability—of the system.

Many smaller copyright owners, for

example, lack access to third-party

services and sophisticated tools to

monitor for infringing uses, which can

be costly, and must instead rely on

manual search and notification

processes

—an effort that has been

likened to ‘‘trying to empty the ocean

with a teaspoon.’’

In addition to the

burden of policing infringement across

the internet, copyright owners complain

that material they succeed in having

taken down is often promptly reposted

on the same site—the so-called ‘‘whack-

a-mole’’ problem.

Under section 512

as it has been interpreted, providers are

not required to filter out or prevent the

reposting of copyrighted content

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17 U.S.C. 512(m); see UMG Recordings, Inc. v.

Shelter Capital Partners LLC, 718 F.3d 1006, 1024

(9th Cir. 2013) (rejecting plaintiffs’ argument that

service provider should have ‘‘taken the initiative

to use search and indexing tools to locate and

remove from its Web site any other content by the

artists identified in . . . notices’’); Capitol Records,

LLC v. Vimeo, LLC, 972 F. Supp. 2d 500, 525

(S.D.N.Y. 2013) (‘‘512(m) and attendant case law

make clear that service providers are under no

affirmative duty to seek out infringement . . . [and

t]his remains the case even when a service provider

has developed technology permitting it to do so.’’).

See Section 512 Hearing at 14–15, 39, 58

(written statements of Sean M. O’Connor,

Entrepreneurial Law Clinic, University of

Washington (Seattle); Paul Doda, Elsevier; and

Maria Schneider, musician).

Id. at 16 (statement of Annemarie Birdy,

University of Idaho College of Law) (‘‘The notice

and takedown regime in [s]ection 512(c) has scaled

well for enforcing copyrights in the voluminous

content hosted by online service providers.’’).

See U.S. Dep’t of Commerce, Multistakeholder

Forum: Improving the Operation of the DMCA

Notice and Takedown Policy: Second Public

Meeting, Tr. 63:03–05 (May 8, 2014), http://

www.uspto.gov/sites/default/files/ip/global/

copyrights/2nd_forum_transcript.pdf (Fred von

Lohmann, Google) (‘‘[W]hat large service providers

are capable of doing is very different from what

smaller service providers are doing.’’); U.S. Dep’t of

Commerce, Multistakeholder Forum: Improving the

Operation of the DMCA Notice and Takedown

Policy: First Public Meeting, Tr. 34:16–38:06 (Mar.

20, 2014), http://www.uspto.gov/ip/global/

copyrights/First_Public_Meeting-Improving_

Operation_of_DMCA_Notice_and_Takedown_

Policy.pdf (Ron Yokubaitis, Giganews) (describing

burden of processing non-standardized notices for

a ‘‘small company [of] fifty-something people’’).

See, e.g., Wolk v. Kodak Imaging Network, Inc.,

840 F. Supp. 2d 724, 747 (S.D.N.Y. 2012), aff’d sub

nom., Wolk v. Photobucket.com, Inc., 569 F. App’x

51 (2d Cir. 2014) (noting that an example of

sufficient information in a notice allowing a service

provider to locate the infringing material ‘‘would be

a copy or description of the allegedly infringing

material and the so-called ‘uniform resource

locator’ (URL) (i.e., Web site address)’’) (citing

Viacom Int’l, Inc. v. YouTube, Inc., 718 F. Supp. 2d

514, 521 (S.D.N.Y. 2010), vacated in part on other

grounds, 676 F.3d 19 (2d Cir. 2012)).

See, e.g., Digital Millennium Copyright Act

(DMCA) Notice, Automattic, https://

automattic.com/dmca-notice (last visited Dec. 17,

2015); DMCA Copyright Notifications, Tumblr,

https://www.tumblr.com/dmca (last visited Dec. 17,

2015); Copyright Infringement Notification,

YouTube, https://www.youtube.com/copyright_

complaint_form (last visited Dec. 17, 2015).

17 U.S.C. 512(c)(3)(A)(ii).

Compare MPAA, Comments on Office of

Intellectual Property Enforcement Coordinator

Development of the Joint Strategic Plan on

Intellectual Property Enforcement 17 (Oct. 16,

2015), http://www.regulations.gov/

#!documentDetail;D=OMB-2015-0003-0058

(‘‘Search engines should delist sites based on court

orders or other comparable judicial determinations

of infringement . . . [meaning that] no results from

a particular site would appear in any search

results.’’) with Google, Comments on Office of

Intellectual Property Enforcement Coordinator

Development of the Joint Strategic Plan on

Intellectual Property Enforcement 7–8 (Oct. 16,

2015), http://www.regulations.gov/

#!documentDetail;D=OMB-2015-0003-0061

(‘‘Google, IPEC Comments’’) (‘‘[W]hole-site removal

is ineffective and can easily result in censorship of

lawful material . . . [and] would jeopardize free

speech principles, emerging services, and the free

flow of information online globally and in contexts

far removed from copyright.’’).

S. Rep. No. 105–190, at 48 (1998).

Google, IPEC Comments, at 7–8.

See, e.g., UMG Recordings, 718 F.3d at 1025

(quoting Viacom Int’l, Inc. v. YouTube, Inc., 676

F.3d 19, 31 (2d Cir. 2012) (‘‘Viacom’’)).

See UMG Recordings, 718 F.3d at 1020 (‘‘[T]he

DMCA notice protocol . . . [is] the most powerful

evidence of a service provider’s knowledge.’’)

(internal quotations omitted); cf. 17 U.S.C.

512(c)(3)(B)(i) (stating that a notice ‘‘that fails to

comply substantially’’ with the 512(c) notice

requirements ‘‘shall not be considered . . . in

determining whether a service provider has actual

knowledge.’’).

See, e.g., Viacom, 676 F.3d at 35 (‘‘[W]illful

blindness doctrine may be applied, in appropriate

circumstances, to demonstrate knowledge or

awareness of specific instances of infringement

under the DMCA.’’).

Id. at 35 (quoting United States v. Aina-

Marshall, 336 F.3d 167, 170 (2d Cir. 2003)). For

example, a service provider was found to have

‘‘blinded itself’’ where it encouraged users to

encrypt files so that the service provider could not

know the contents of particular files. In re Aimster

(‘‘In re Aimster’’).

through the use of content identification

technologies or other means.

Accordingly, some have proposed that

the notice-and-takedown procedure be

revised to become a ‘‘notice-and-stay-

down’’ procedure—that is, once a

service provider receives an effective

and uncontested takedown notice for a

particular work, the provider should be

required to make commercially

reasonable efforts to keep that work

from reappearing on its site.

Others,

however, pointing to the very

substantial efforts—especially of larger

service providers—to respond promptly

to takedown notices, are of the view that

the existing system has ‘‘scaled well’’

over time to address the large volume of

takedown notices, and does not need to

be changed.

Of course, the burdens of the notice-

and-takedown process do not fall on

providers must devote the time and

resources necessary to respond to the

increasing number of takedown notices

sent each day. Smaller providers, in

particular, may find the task to be a

daunting one.

In addition, service

providers complain that some notices

do not meet the statutory requirements

or, as discussed below, concern

materials and activities that are not in

fact infringing.

Since the passage of the DMCA,

courts have been called upon to address

the elements required for an

‘‘effective’’—i.e., valid—takedown

notice. Looking to section 512’s

requirement to provide ‘‘information

reasonably sufficient to permit the

service provider to locate the material,’’

courts have generally required a high

degree of specificity, such as the

particular link, or uniform resource

locator (‘‘URL’’), where the infringing

material is found.

Likewise, service

providers often request that the specific

URL for each allegedly infringing use be

included in a notice.

Such a

requirement can be burdensome in the

case of a notice that references a large

number of infringements at multiple

locations throughout the same site.

Additionally, copyright owners question

whether this level of specificity is in

conflict with the statute’s express

language allowing complaining parties

to submit a ‘‘representative list’’ of

works alleged to be infringed ‘‘at a

single online site.’’

In addition, there is debate about

whether search engine services must

disable access to (e.g., ‘‘de-list’’) entire

sites that copyright owners report as

consisting largely of infringing

material.

While the legislative history

of section 512(d) observes that ‘‘safe

harbor status for a provider that views

[a pirate] site and then establishes a link

to it would not be appropriate,’’

service providers assert that de-listing

could lead to censorship, and yet still

not effectively address infringement,

because the site would remain online.

Knowledge Standards

A good deal of litigation relating to

section 512 to date has focused on the

legal standards for determining when a

service provider has sufficient

knowledge or awareness to require it to

remove or disable infringing material in

order to remain eligible for the safe

harbor protections of section 512(c) or

(d). Courts have held ‘‘actual

knowledge’’ to require evidence that the

service provider subjectively knew that

specific material on its site infringed

Alternatively, actual

knowledge can be demonstrated with

evidence that a service provider

received information about specific

infringing material through a statutorily

effective takedown notice, i.e., a notice

that includes ‘‘substantially’’ all of the

information required under section

512(c)(3).

Courts have also recognized the

common law doctrine of willful

blindness in addressing whether a

service provider has actual knowledge

of infringement.

A service provider is

considered to have engaged in willful

blindness when it is ‘‘aware of a high

probability’’ of infringement and has

‘‘consciously avoided confirming that

fact.’’

Accordingly, courts have held

that a service provider’s willful

blindness to infringement on its site and

failure to remove or disable access to

infringing material can disqualify it

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See, e.g., Viacom, 676 F.3d at 30, 35; see also

In re Aimster, 334 F.3d at 653, 655.

17 U.S.C. 512(c)(1)(A)(ii), (d)(1)(B).

H.R. Rep. No. 105–551, pt. 2, at 57 (1998).

Id. at 53; S. Rep No. 105–190, at 44 (1998);

accord Viacom, 676 F.3d at 31.

H.R. Rep. No. 105–551, pt. 2, at 58 (1998); see

also Columbia Pictures Indus., Inc. v. Fung, 710

F.3d 1020, 1043 (9th Cir. 2013) (‘‘Fung’’) (finding

that a service provider had red flag knowledge

where ‘‘material in question was sufficiently

current and well-known that it would have been

objectively obvious to a reasonable person that the

material . . . was both copyrighted and not

licensed to random members of the public’’).

See, e.g., Viacom, 676 F.3d at 31–32 (internal

quotations omitted).

See, e.g., UMG Recordings, 718 F.3d at 1022–

23; Viacom, 676 F.3d at 32.

Viacom, 676 F.3d at 30–31 (emphasis omitted)

(‘‘[E]xpeditious removal is possible only if the

service provider knows with particularity which

items to remove.’’).

17 U.S.C. 512(m).

UMG Recordings, 718 F.3d at 1022 (quoting

CCBill LLC, 488 F.3d at 1113).

See Viacom, 676 F.3d at 36–38 (2d Cir. 2012)

(‘‘[17 U.S.C.] 512(c)(1)(B) does not include a

specific knowledge requirement’’ because to

‘‘import[ ] a specific knowledge requirement into

[17 U.S.C.] 512(c)(1)(B) renders the control

provision duplicative of [17 U.S.C.] 512(c)(1)(A).’’);

H.R. Rep. No. 105–551, pt. 1, at 25–26 (1998) (‘‘The

financial benefit standard in subparagraph (B) is

intended to codify and clarify the direct financial

benefit element of vicarious liability. . . . The ‘right

and ability to control’ language in Subparagraph (B)

codifies the second element of vicarious liability.’’);

3 Melville Nimmer & David Nimmer, Nimmer on

(‘‘Notably lacking from the foregoing two elements

[of vicarious liability] is knowledge.’’).

UMG Recordings, 718 F.3d at 1029–31 (quoting

Viacom, 676 F.3d at 38); Perfect 10, Inc. v. Cybernet

Ventures, Inc., 213 F. Supp. 2d 1146, 1173, 1181–

82 (C.D. Cal. 2002) (‘‘Cybernet Ventures’’).

Fung, 710 F.3d at 1043, 1046; see also Viacom,

676 F.3d at 38 & n.13 (‘‘[C]ontrol may exist where

the service provider is ‘actively involved in the

listing, bidding, sale and delivery’ of items.’’)

(quoting Hendrickson v. eBay, Inc., 165 F. Supp. 2d

1082, 1094 (C.D. Cal. 2001)); Cybernet Ventures, 213

F. Supp. 2d at 1173 (finding that service provider

had control where it required user Web sites to

comply with ‘‘detailed instructions regard[ing]

issues of layout, appearance, and content’’).

See, e.g., Viacom, 676 F.3d at 37.

17 U.S.C. 512(c)(1)(B), (d)(2).

H.R. Rep. No. 105–551, pt. 2, at 54 (1998)

(noting that financial benefit is not established

through a ‘‘one-time set-up fee [or] flat, periodic

payments for service from a person engaging in

infringing activities’’).

CCBill LLC, 488 F.3d at 1117; Ellison v.

Robertson, 357 F.3d 1072, 1079 (9th Cir. 2004)).

Fung, 710 F.3d at 1045–46.

17 U.S.C. 512(i)(1)(A); BMG Rights Mgmt. (US)

LLC v. Cox Commc’ns, Inc., No. 1:14–cv–1611, 2015

WL 7756130, at *14 (E.D. Va. Dec. 1, 2015) (‘‘BMG

Rights Mgmt.’’) (denying 512(a) safe harbor

protection to service provider because it did not

reasonably implement a repeat infringer policy).

CCBill LLC, 488 F.3d at 1109; Disney Enters.,

Inc. v. Hotfile Corp., No. 11–20427–CIV, 2013 WL

6336286, at *20 (S.D. Fla. Sept. 20, 2013)

(‘‘Hotfile’’); see also BMG Rights Mgmt., No. 1:14–

cv–1611, 2015 WL 7756130, at *13.

from the protections of a section 512

safe harbor.

As also noted above, sections 512(c)

and (d) require a service provider to

disable access to material or activity if

it has ‘‘red flag’’ knowledge, i.e., is

aware of ‘‘facts or circumstances from

which infringing activity is

apparent.’’

In enacting the statute,

Congress explained that ‘‘a service

provider [has] no obligation to seek out

qualify for the safe harbor if it . . .

turn[s] a blind eye to ‘red flags’ of

obvious infringement.’’

The

legislative history of section 512 also

suggests Congress’ view that the red flag

test ‘‘has both a subjective and an

objective element . . . the subjective

awareness of the service provider of the

facts or circumstances in question . . .

[and the objective assessment of]

whether infringing activity would have

been apparent to a reasonable person

operating under the same or similar

circumstances.’’

With regard to

information location tools, for example,

Congress observed that if ‘‘an [i]nternet

site is obviously pirate, then seeing it

may be all that is needed for the service

provider to encounter a ‘red flag.’ ’’

Congress’ intent in creating the red flag

test was to ‘‘require[ ] less specificity

than the actual knowledge’’ standard

and to prevent service providers from

qualifying for safe harbor protection

when they are aware of widespread

infringement.

Courts, however, have

largely rejected the notion that a general

awareness of infringement is sufficient

to establish red flag knowledge.

Instead, courts have held that red flag

knowledge requires ‘‘knowledge of

specific and identifiable infringements’’

because, in order to retain the protection

of the safe harbor, the service provider

is required to expeditiously ‘‘remove or

disable ‘the [infringing] material.’ ’’

In assessing these knowledge

requirements, courts have also looked to

the language of section 512(m), which

states that ‘‘[n]othing’’ in section 512

conditions the availability of safe harbor

protection on ‘‘a service provider

monitoring its service or affirmatively

seeking facts indicating infringing

activity, except to the extent consistent

with a standard technical measure.’’

Based on this language, courts have

concluded that ‘‘the DMCA . . . place[s]

the burden of policing copyright

infringement . . . squarely on the

owners of the copyright.’’

Financial Benefit/Right To Control

Litigation regarding the Section 512(c)

and (d) safe harbors has also addressed

what it means for a service provider to

receive a ‘‘financial benefit directly

attributable’’ to infringing activity where

it has the ‘‘right and ability to control’’

such activity.

Like the traditional standard for

vicarious liability under common law,

the financial benefit/right to control test

has been held not to turn on a service

provider’s knowledge of infringement.

But courts have also indicated that

‘‘right and ability to control’’ in the

context of section 512 means that the

service provider ‘‘ ‘exert[s] substantial

influence on the activities of users,’ ’’

i.e., ‘‘ ‘something more than’ ’’ the basic

ability to remove or block access to

infringing materials.

Such control may

include, for example, taking an active

role in the listing of infringing material

on a Web site, assisting users in locating

infringing files, or encouraging the

uploading or downloading of particular

copyrighted works.

These courts have

reasoned that because the takedown

process itself requires the ability to

remove or block access, Congress must

have intended a greater degree of

control than just this, or it would

undermine the availability of the safe

harbors.

Sections 512(c) and (d) also exclude

service providers from safe harbor

protection when they ‘‘receive a

financial benefit directly attributable to

the infringing activity.’’

While the

legislative history suggests that merely

requiring a periodic payment for service

does not constitute a direct financial

benefit,

courts have found such a

benefit when the service provider

charges a subscription fee to its users

and the ‘‘infringing activity constitutes

a draw for subscribers, not just an added

benefit.’’

Financial benefit has also

been found when a service provider’s

‘‘ability to attract advertisers’’ and the

‘‘amount of revenue’’ received from

advertising are ‘‘tied directly to the

infringing activity.’’

Repeat Infringers

Under section 512(i), a service

provider seeking to avail itself of any of

the safe harbors is required to ‘‘adopt[ ]

and reasonably implement[ ]’’ a policy

to terminate ‘‘repeat infringers’’ in

‘‘appropriate circumstances.’’

Congress, however, did not define these

terms in the statute, so it has been left

to courts to determine whether a service

provider’s repeat infringer policy is

sufficient to qualify the provider for safe

harbor protection. In interpreting this

aspect of the statute, courts have held

that a repeat infringer is a user ‘‘who

repeatedly or blatantly infringe[s]

determination may be based upon

information from valid takedown

notices and does not require a court

determination.

Courts have further

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CCBill LLC, 488 F.3d at 1109 (internal citation

omitted); see also Hotfile, No. 11–20427–CIV, 2013

WL 6336286, at *21.

See, e.g., Section 512 Hearing at 48, 63–67,

246–47 (written statements of Katherine Oyama,

Google Inc.; Paul Sieminski, Automattic Inc.; and

Library Copyright Alliance) (discussing misuse of

takedown process).

See, e.g., id. at 65 (written statement of Paul

Sieminski, Automattic Inc.) (noting concern for

‘‘companies who issue DMCA notices specifically

against content that makes use of their copyrighted

material as part of a criticism or negative review—

which is classic fair use’’).

See, e.g., Automattic Inc. v. Steiner, 82 F. Supp.

3d 1011, 1016 (N.D. Cal. 2015) (entering default

judgment against the submitter of takedown notices

for knowingly materially misrepresenting that a

blog infringed its press release); Online Policy Grp.

v. Diebold, Inc., 337 F. Supp. 2d 1195, 1204 (N.D.

Cal. 2004) (finding voting machine manufacturer

liable under section 512(f) for ‘‘knowingly

materially misrepresent[ing]’’ that publication of

email archive discussing technical problems with

voting machines was infringing).

See, e.g., Brief for Org. for Transformative

Works et al. as Amici Curiae Supporting Appellee

and Cross-Appellant at 16, Lenz v. Universal Music

Corp., 801 F.3d 1126 (9th Cir. 2015) (Nos. 13–

16106, 13–16107) (noting that creators worry about

sending a counter notice because they may have to

provide their real names and addresses or become

subject to a lawsuit they cannot afford).

See, e.g., Ctr. for Democracy & Tech., Campaign

Takedown Troubles: How Meritless Copyright

Claims Threaten Online Political Speech 1 (2010),

https://cdt.org/files/pdfs/copyright_takedowns.pdf.

17 U.S.C. 512(c)(3)(A)(v).

Id. at 512(g)(3)(C).

Id. at 512(f).

Rossi v. Motion Picture Ass’n of Am. Inc., 391

F.3d 1000, 1004–05 (9th Cir. 2004); accord Lenz v.

Universal Music Corp., 801 F.3d 1126, 1134 (9th

Cir. 2015). The Rossi and Lenz courts reasoned that

to hold otherwise would conflict with Congress’

intent that a copyright owner only be penalized for

‘‘knowing’’ misrepresentations. Rossi, 391 F3d at

1004–05; accord Lenz, 801 F.3d at 1134.

Lenz, 801 F.3d at 1133.

See id. at 1135–36. In Lenz, the Ninth Circuit

was ‘‘mindful of the pressing crush of voluminous

infringing content that copyright holders face,’’ and

noted, ‘‘without passing judgment, that the

implementation of computer algorithms appears to

be a valid and good faith middle ground for

processing a plethora of content while still meeting

the DMCA’s requirements to somehow consider fair

use.’’ Id. at 1135. The court further addressed how

an algorithm might accommodate fair use,

observing that it was ‘‘unaware of any [court]

decision to date that actually addressed the need for

human review.’’ Id.

See generally Ctr. For Copyright Info., The

(May 28, 2014), http://

www.copyrightinformation.org/wp-content/

uploads/2014/05/Phase-One-And_Beyond.pdf.

See generally Dep’t of Commerce

Multistakeholder Forum Recommended Practices

(list of recommended practices developed by a

diverse group of copyright owners, service

providers, and public interest representatives).

See Intellectual Prop. Enforcement

Coordinator, 2011 U.S. Intellectual Property

Enforcement Coordinator Annual Report on

Intellectual Property Enforcement 46 (2012),

https://www.whitehouse.gov/sites/default/files/

omb/IPEC/ipec_annual_report_mar2012.pdf

(describing a June 2011 agreement among American

Express, Discover, MasterCard, PayPal, and Visa to

abide by best practices to ‘‘stop sites distributing

counterfeit and pirated goods from conducting

financial transactions through payment

processors’’).

See Press Release, Trustworthy Accountability

Group, Advertising Industry Launches Initiative to

Protect Brands Against Piracy Web sites (Feb. 10,

2015), https://www.tagtoday.net/advertising-

industry-launches-initiative-to-protect-brands-

against-piracy-Web sites.

See Principles for User Generated Content

Services, http://www.ugcprinciples.com (last visited

Dec. 16, 2015).

held that a reasonable policy, at a

minimum, must provide a mechanism

to identify and keep a record of users

responsible for files referenced in

takedown notices and, ‘‘under

‘appropriate circumstances,’ ’’ result in

termination of ‘‘users who repeatedly or

blatantly infringe copyright.’’

Misuse of Takedown Process

Service providers and advocacy

groups have raised concerns about

fraudulent and abusive section 512

notices that may restrain fair use, free

speech, or otherwise misuse the notice-

and-takedown process.

Some of the

concerns arise from takedown notices

for content that appears to constitute an

obvious fair use of a copyright work.

Others relate to efforts to remove

criticism or commentary—such as

negative reviews—under the guise of

While the posting party can

invoke the counter-notification

procedure of section 512(g) to have the

material reinstated, some believe that

posters may not be aware of this, or may

be too intimidated to pursue a counter

notification.

A related concern is that

the improper takedown of legitimate

material, even if for a limited time, may

harm important speech interests—for

example, if a political advertisement is

wrongly removed at a critical time in a

campaign.

As noted above, a takedown notice

must include a statement that the

complaining party has a ‘‘good faith

belief’’ that the use is not authorized.

Similarly, a counter notification must

include a statement that the sender has

a ‘‘good faith belief’’ that the material in

question was removed as a result of

‘‘mistake or misidentification.’’

Section 512(f) provides for a cause of

action and damages if a sender

‘‘knowingly materially misrepresents’’

in a takedown notice that material is

infringing, or, in a counter notification,

was wrongfully removed.

In a number of cases challenging the

validity of takedown notices, courts

have fleshed out the meaning and

application of section 512(f). For

example, courts have held that the

‘‘good faith belief’’ requirement of

section 512(c)(3)(A)(v) ‘‘encompasses a

subjective, rather than objective

standard’’; that is, the sender is not

responsible for an ‘‘unknowing

mistake,’’ even if the sender’s

assessment of infringement was

objectively unreasonable.

But it has

also been held that before sending a

takedown notice, the complaining party

must ‘‘consider the existence of fair

use’’ in forming the subjective good

faith belief that the use is not authorized

by the law.

The need to consider fair

use may present challenges in the

context of automated takedown

processes relied upon by copyright

owners to address large-volume

infringements, including how such

processes might be calibrated to

accommodate this requirement and the

necessity, if any, for human review.

Voluntary Measures

While interested parties continue to

test and clarify aspects of section 512 in

the courts, some stakeholders have

chosen to work together to develop

voluntary protocols and best practices to

avoid litigation, improve online

enforcement, and protect free speech

and innovation. Several of these

initiatives have been undertaken with

the support of the U.S. government,

including the Copyright Alert System,

an effort supported by the U.S.

Intellectual Property Enforcement

Coordinator (‘‘IPEC’’),

and the DMCA

Notice-and-Takedown Processes: List of

Good, Bad, and Situational Practices,

stemming from the efforts of the Internet

Policy Task Force,

both of which seek

to improve the efficiency and

effectiveness of notice-and-takedown

procedures, as well as the IPEC-led

Payment Processor Best Practices,

which seeks to cut off revenue to sites

that promote infringement.

Other

multistakeholder initiatives include the

Trustworthy Accountability Group

certification process, aimed at curbing

ad revenue supporting piracy Web

sites,

and the Principles for User

Generated Content Services, which sets

forth agreed principles for screening and

addressing infringing content.

II. Subjects of Inquiry

The Copyright Office seeks public

input, including, where available,

empirical data on the efficiency and

effectiveness of section 512 for owners

and users of copyrighted works and the

overall sustainability of the system if, as

appears likely, the volume of takedown

notices continues to increase. The Office

invites written comments in particular

on the subjects below. A party choosing

to respond to this Notice of Inquiry need

not address every subject, but the Office

requests that responding parties clearly

identify and separately address each

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numbered subject for which a response

is submitted.

General Effectiveness of Safe Harbors

1. Are the section 512 safe harbors

working as Congress intended?

2. Have courts properly construed the

entities and activities covered by the

section 512 safe harbors?

3. How have section 512’s limitations

on liability for online service providers

impacted the growth and development

of online services?

4. How have section 512’s limitations

on liability for online service providers

impacted the protection and value of

copyrighted works, including licensing

markets for such works?

5. Do the section 512 safe harbors

strike the correct balance between

providers?

Notice-and-Takedown Process

6. How effective is section 512’s

notice-and-takedown process for

addressing online infringement?

7. How efficient or burdensome is

section 512’s notice-and-takedown

process for addressing online

infringement? Is it a workable solution

over the long run?

8. In what ways does the process work

differently for individuals, small-scale

entities, and/or large-scale entities that

are sending and/or receiving takedown

notices?

9. Please address the role of both

‘‘human’’ and automated notice-and-

takedown processes under section 512,

including their respective feasibility,

benefits, and limitations.

10. Does the notice-and-takedown

process sufficiently address the

reappearance of infringing material

previously removed by a service

provider in response to a notice? If not,

what should be done to address this

concern?

11. Are there technologies or

processes that would improve the

efficiency and/or effectiveness of the

notice-and-takedown process?

12. Does the notice-and-takedown

process sufficiently protect against

fraudulent, abusive or unfounded

notices? If not, what should be done to

address this concern?

13. Has section 512(d), which

addresses ‘‘information location tools,’’

been a useful mechanism to address

infringement that occurs as a result of a

service provider’s referring or linking to

infringing content? If not, what should

be done to address this concern?

14. Have courts properly interpreted

the meaning of ‘‘representative list’’

under section 512(c)(3)(A)(ii)? If not,

what should be done to address this

concern?

15. Please describe, and assess the

effectiveness or ineffectiveness of,

voluntary measures and best practices—

including financial measures, content

‘‘filtering’’ and takedown procedures—

that have been undertaken by interested

parties to supplement or improve the

efficacy of section 512’s notice-and-

takedown process.

Counter Notifications

16. How effective is the counter-

notification process for addressing false

and mistaken assertions of

infringement?

17. How efficient or burdensome is

the counter-notification process for

users and service providers? Is it a

workable solution over the long run?

18. In what ways does the process

work differently for individuals, small-

scale entities, and/or large-scale entities

that are sending and/or receiving

counter notifications?

Legal Standards

19. Assess courts’ interpretations of

the ‘‘actual’’ and ‘‘red flag’’ knowledge

standards under the section 512 safe

harbors, including the role of ‘‘willful

blindness’’ and section 512(m)(1)

(limiting the duty of a service provider

to monitor for infringing activity) in

such analyses. How are judicial

interpretations impacting the

effectiveness of section 512?

20. Assess courts’ interpretations of

the ‘‘financial benefit’’ and ‘‘right and

ability to control’’ standards under the

section 512 safe harbors. How are

judicial interpretations impacting the

effectiveness of section 512?

21. Describe any other judicial

interpretations of section 512 that

impact its effectiveness, and why.

Repeat Infringers

22. Describe and address the

effectiveness of repeat infringer policies

as referenced in section 512(i)(A).

23. Is there sufficient clarity in the

law as to what constitutes a repeat

infringer policy for purposes of section

512’s safe harbors? If not, what should

be done to address this concern?

Standard Technical Measures

24. Does section 512(i) concerning

service providers’ accommodation of

‘‘standard technical measures’’

(including the definition of such

measures set forth in section 512(i)(2))

encourage or discourage the use of

technologies to address online

infringement?

25. Are there any existing or emerging

‘‘standard technical measures’’ that

could or should apply to obtain the

benefits of section 512’s safe harbors?

Remedies

26. Is section 512(g)(2)(C), which

requires a copyright owner to bring a

federal lawsuit within ten business days

to keep allegedly infringing content

offline—and a counter-notifying party to

defend any such lawsuit—a reasonable

and effective provision? If not, how

might it be improved?

27. Is the limited injunctive relief

available under section 512(j) a

sufficient and effective remedy to

address the posting of infringing

material?

28. Are the remedies for

misrepresentation set forth in section

512(f) sufficient to deter and address

fraudulent or abusive notices and

counter notifications?

Other Issues

29. Please provide any statistical or

economic reports or studies that

demonstrate the effectiveness,

ineffectiveness, and/or impact of section

512’s safe harbors.

30. Please identify and describe any

pertinent issues not referenced above

that the Copyright Office should

consider in conducting its study.

Dated: December 28, 2015.

Maria A. Pallante,

[FR Doc. 2015–32973 Filed 12–30–15; 8:45 am]

BILLING CODE 1410–30–P

MILLENNIUM CHALLENGE

CORPORATION

[MCC FR 15–06]

Report on the Selection of Eligible

Countries for Fiscal Year 2016

AGENCY

: Millennium Challenge

Corporation.

ACTION

: Notice.

SUMMARY

: This report is provided in

accordance with section 608(d)(1) of the

Millennium Challenge Act of 2003, Pub.

L. 108–199, Division D, (the ‘‘Act’’), 22

U.S.C. 7708(d)(1).

Dated: December 18, 2015.

Maame Ewusi-Mensah Frimpong,

Vice President and General Counsel,

Millennium Challenge Corporation.

Report on the Selection of Eligible

Countries for Fiscal Year 2016

Summary

This report is provided in accordance

with section 608(d)(1) of the

Millennium Challenge Act of 2003, as

amended, Public Law 108–199, Division

D, (the ‘‘Act’’) (22 U.S.C. 7707(d)(1)).

The Act authorizes the provision of

Millennium Challenge Account

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requirements are computed by the

Federal government annually. While

precise costs cannot be identified, at the

present time and based on past

experience, the annual related costs for

contractor staff are estimated to be

$1,524,376, which represents an average

cost of $28.00 per hour.

Comments submitted in response to

this comment request will be

summarized and/or included in the

request for Office of Management and

Budget approval of the information

collection request; they will also

become a matter of public record.

Portia Wu,

Assistant Secretary for Employment and

Training, Labor.

[FR Doc. 2016–04631 Filed 3–2–16; 8:45 am]

BILLING CODE 4510–FT–P

LIBRARY OF CONGRESS

[Docket No. 2015–7]

Section 512 Study: Extension of

Comment Period

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Extension of comment period.

SUMMARY

: The United States Copyright

Office is extending the deadline for the

submission of written comments in

response to its December 31, 2015

Notice of Inquiry regarding the

operation of section 512 of Title 17.

DATES

: Initial written comments are now

due no later than 11:59 p.m. Eastern

Time on April 1, 2016.

ADDRESSES

: The Copyright Office is

using the regulations.gov system for the

submission and posting of public

comments in this proceeding. All

comments are therefore to be submitted

electronically through regulations.gov.

Specific instructions for submitting

comments are available on the

comment-submission/. If electronic

submission of comments is not feasible,

please contact the Office using the

contact information below for special

instructions.

FOR FURTHER INFORMATION CONTACT

Jacqueline C. Charlesworth, General

Counsel and Associate Register of

Copyrights, [email protected]; or

Karyn Temple Claggett, Director of the

Office of Policy and International

Affairs and Associate Register of

Copyrights, [email protected]. Each can be

reached by telephone at (202) 707–8350.

SUPPLEMENTARY INFORMATION

: The

United States Copyright Office is

undertaking a public study to evaluate

the impact and effectiveness of the

DMCA safe harbor provisions contained

in section 512 of Title 17. On December

31, 2015, the Office issued a Notice of

Inquiry seeking public input on several

questions relating to that topic. See 80

FR 81862 (Dec. 31, 2015). To ensure that

commenters have sufficient time to

respond, the Office is extending the

deadline for the submission of initial

comments in response to the Notice to

April 1, 2016, at 11:59 p.m. Eastern

Time. Please note that in light of the

expected time frame for this study, the

Office is unlikely to grant further

extensions for these comments.

Dated: February 25, 2016.

Maria A. Pallante,

[FR Doc. 2016–04641 Filed 3–2–16; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

[Notice: (16–019)]

NASA Advisory Council; Technology,

Innovation and Engineering

Committee; Meeting

AGENCY

: National Aeronautics and

Space Administration

ACTION

: Notice of meeting.

SUMMARY

: In accordance with the

Federal Advisory Committee Act, Public

Law 92–463, as amended, the National

Aeronautics and Space Administration

(NASA) announces a meeting of the

Technology, Innovation and

Engineering (TI&E) Committee of the

NASA Advisory Council (NAC).

DATES

: Tuesday, March 29, 2016, 8:00

a.m. to 5:00 p.m., Local Time.

ADDRESSES

: NASA Headquarters, Room

MIC 6A, 300 E Street SW., Washington,

DC 20546.

FOR FURTHER INFORMATION CONTACT

: Mr.

Mike Green, Space Technology Mission

Directorate, NASA Headquarters,

Washington, DC 20546, (202) 358–4710,

or [email protected].

SUPPLEMENTARY INFORMATION

: The

meeting will be open to the public up

to the capacity of the room. This

meeting is also available telephonically

and online via WebEx. Any interested

person may call the USA toll-free

conference number 1–844–467–6272,

passcode 102421, to participate in this

meeting by telephone. The WebEx link

is https://nasa.webex.com/, the meeting

number is 992 399 346, and the

password is ‘‘Technology16

∧

’’.

The agenda for the meeting includes

the following topics:

—Space Technology Mission Directorate

FY 2017 Budget and Update

—FY 2016–2017 Technology Plans for

the Human Exploration and

Operations Mission Directorate and

the Science Mission Directorate and

Discussion

—Office of the Chief Technologist

Update

—Technology Demonstration Missions

Program Update

—Restore-L Mission Overview and

Discussion

Attendees will be requested to sign a

security requirements, including the

presentation of a valid picture ID, before

receiving access to NASA Headquarters.

Due to the Real ID Act, Public Law 109–

13, any attendees with drivers licenses

issued from non-compliant states/

territories must present a second form of

ID. [Federal employee badge; passport;

active military identification card;

enhanced driver’s license; U.S. Coast

Guard Merchant Mariner card; Native

American tribal document; school

identification accompanied by an item

from LIST C (documents that establish

employment authorization) from the

‘‘List of the Acceptable Documents’’ on

Form I–9]. Non-compliant states/

territories are: American Samoa, Illinois,

Minnesota, Missouri, New Mexico, and

Washington, Foreign nationals attending

this meeting will be required to provide

a copy of their passport and visa in

addition to providing the following

information no less than 10 working

days prior to the meeting: Full name;

gender; date/place of birth; citizenship;

visa information (number, type,

expiration date); passport information

(number, country, expiration date);

employer/affiliation information (name

of institution, address, country,

telephone); title/position of attendee;

and home address to Ms. Anyah

Dembling via email at anyah.dembling@

nasa.gov or by telephone at (202) 358–

5195. U.S. citizens and Permanent

Residents (green card holders) are

requested to submit their name and

affiliation no less than 3 working days

prior to the meeting to Ms. Anyah

Dembling. It is imperative that this

meeting be held on this date to

accommodate the scheduling priorities

of the key participants.

Patricia D. Rausch,

Advisory Committee Management Officer,

National Aeronautics and Space

Administration.

[FR Doc. 2016–04766 Filed 3–2–16; 8:45 am]

BILLING CODE P

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14896

Federal Register / Vol. 81, No. 53 / Friday, March 18, 2016 / Notices

supporting this information collection

request.

Type of Review: Extension, without

change, of a currently approved

collection.

Agency: Mine Safety and Health

Administration.

OMB Number: 1219–0147.

Affected Public: Business or other for-

profit.

Number of Respondents: 1.

Frequency: On occasion.

Number of Responses: 1.

Annual Burden Hours: 41 hours.

Annual Respondent or Recordkeeper

Cost: $296,455.

Comments submitted in response to

this notice will be summarized and

included in the request for Office of

Management and Budget approval of the

information collection request; they will

also become a matter of public record.

Sheila McConnell,

Certifying Officer.

[FR Doc. 2016–06134 Filed 3–17–16; 8:45 am]

BILLING CODE 4510–43–P

LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015–7]

Section 512 Study: Announcement of

Public Roundtables

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of public roundtables.

SUMMARY

: The United States Copyright

Office has undertaken a study to

evaluate the impact and effectiveness of

the DMCA safe harbor provisions

contained in 17 U.S.C. 512. On

December 31, 2015, the Office issued a

Notice of Inquiry (‘‘NOI’’) soliciting

written comments in response to a

number of topics relating to section 512.

See 80 FR 81862. The due date for

initial written comments in response to

the NOI is April 1, 2016. See 81 FR

11294. At this time, the Office is

announcing it will hold two two-day

public roundtables on DMCA safe

harbor issues in New York, New York

and Stanford, California in May 2016.

Dates and Addresses

The New York roundtable will take

place on May 2 and 3, 2016, from 9:00

a.m. to 5:00 p.m. on both days, and will

be held in the Lester Pollack

Colloquium Room of Furman Hall at the

New York University School of Law,

245 Sullivan Street, New York, New

York 10012.

The Stanford roundtable will take

place on May 12 and 13, 2016, from 9:00

a.m. to 5:00 p.m. on both days, and will

be held in the Manning Faculty Lounge

of the Stanford Law School, 559 Nathan

Abbott Way, Stanford, California 94305.

FOR FURTHER INFORMATION CONTACT

Jacqueline C. Charlesworth, General

Counsel and Associate Register of

Copyrights, [email protected]; or

Karyn Temple Claggett, Director of the

Office of Policy and International

Affairs and Associate Register of

Copyrights, [email protected]. Both can be

reached by telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

: Section

512 of Title 17 codifies provisions of the

Digital Millennium Copyright Act

(‘‘DMCA’’), enacted in 1998, that created

a system for copyright owners and

internet service providers to address

online infringement. This system

includes ‘‘safe harbor’’ limitations on

infringement liability for service

providers who comply with statutory

requirements to facilitate good-faith,

expeditious removal of allegedly

infringing content. In light of the

exponential growth of content

distribution over the internet since the

DMCA was enacted, the Copyright

Office has undertaken a comprehensive

study of the DMCA’s notice-and-

takedown system. On December 31,

2015, the Office issued an NOI seeking

public comment on thirty topics

concerning the efficiency and

effectiveness of section 512. See 80 FR

81862.

At this time, the Copyright Office is

providing notice of its intention to seek

further input for its study through two

two-day public roundtables to be held

in New York, New York and Stanford,

California. The roundtables will offer an

opportunity for interested parties to

comment further on the pertinent

issues, including topics such as the

scope and legal requirements of the

DMCA safe harbors; the notice-and-

takedown and counter-notification

processes, including relevant

technological developments; voluntary

measures to address online

infringement; and the overall

effectiveness of section 512. Additional

information about the specific topics to

be covered at the roundtables is

available at http://copyright.gov/policy/

section512/public-roundtable/

particpate-request.html.

The roundtable hearing rooms will

have a limited number of seats for

participants and observers. Those who

seek to participate should complete and

submit the form available through the

roundtable/particpate-request.html so it

is received no later than April 4, 2016.

For individuals who wish to observe a

roundtable, the Office will provide

public seating on a first-come, first-

served basis on the days of the

roundtables.

Dated: March 15, 2016.

Maria A. Pallante,

[FR Doc. 2016–06200 Filed 3–17–16; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL SCIENCE FOUNDATION

Proposal Review Panel for Physics;

Notice of Meeting

In accordance with the Federal

Advisory Committee Act (Pub. L. 92–

463, as amended), the National Science

Foundation announces the following

meeting:

Name: Proposal Review Panel for the

Division of Physics (1208) (V161279)—

Site Visit.

Date And Time: April 11, 2016; 8:30

a.m.–7:00 p.m.; April 12, 2016; 8:30

a.m.–3:00 p.m.

Place: University of Illinois, Urbana-

Champaign, IL 61801 (CPLC)

Type of Meeting: Part—Open.

Contact Person: Jean Cottam-Allen,

Program Director for Physics Frontier

Centers, Division of Physics, National

Science Foundation, 4201 Wilson Blvd.,

Room 1015, Arlington, VA 22230;

Telephone: (703) 292–8783.

Purpose of Meeting: Site visit to

provide an evaluation of the progress of

the projects at the host site for the

Division of Physics at the National

Science Foundation.

Agenda

April 11, 2016; 8:30 a.m.–7:00 p.m.

08:30 Panel Session: Presentations on

Center Overview, Management and

Science

12:00 p.m. Lunch with Graduate

Students and Postdocs

13:30 Panel Session: Continued

Science Presentations, Education

and Outreach

16:00 Executive Session—Closed

Session

17:00 Poster Session

19:00 Executive Session—Closed

Session

April 12, 2016; 8:30 a.m.–3:00 p.m.

08:30 Meeting with University

Administrators

To 11:00 Discussion with Center

Directors

11:00 Executive Session—Closed

Session

15:00 Closeout Session with Center

Directors

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Federal Register / Vol. 81, No. 64 / Monday, April 4, 2016 / Notices

1. Increasing the estimate of total

agricultural workers from 80,549 to

87,870; and

2. Increasing the percentage of

dependents who are eligible from 31%

to 60%. MAP provides analysis

supporting these proposals in its

comments.

III. Request for Comments

LSC seeks comment solely on the

specific MAP proposals enumerated

above. Comments should specifically

address the rationale provided by MAP

in its comments.

Dated: March 29, 2016.

Stefanie K. Davis,

Assistant General Counsel.

[FR Doc. 2016–07526 Filed 4–1–16; 8:45 am]

BILLING CODE 7050–01–P

LIBRARY OF CONGRESS

[Docket No. 2015–7]

Section 512 Study: Extension of Time

To Submit Requests To Participate in

Roundtable

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Extension of time to submit

requests to participate in roundtable.

SUMMARY

: The United States Copyright

Office is extending the deadline for the

submission of requests to participate in

the section 512 roundtables in New

York and California, which were

announced in its March 18, 2016 Notice

of Inquiry. See 81 FR 14896.

DATES

: Requests to participate in the

section 512 roundtables are now due no

later than 11:59 p.m. Eastern Time on

April 11, 2016.

ADDRESSES

: Those who seek to

participate in the section 512

roundtables should complete and

submit the form available through the

www.copyright.gov/policy/section512/

public-roundtable/participate-

request.html. If electronic submission of

such a request is not feasible, please

contact the Office using the contact

information below for special

instructions.

FOR FURTHER INFORMATION CONTACT

Jacqueline C. Charlesworth, General

Counsel and Associate Register of

Copyrights, [email protected]; or

Karyn Temple Claggett, Director of the

Office of Policy and International

Affairs and Associate Register of

Copyrights, [email protected]. Each can be

reached by telephone at (202) 707–8350.

SUPPLEMENTARY INFORMATION

: The

United States Copyright Office is

undertaking a public study to evaluate

the impact and effectiveness of the

DMCA safe harbor provisions contained

in section 512 of Title 17. On March 18,

2016, the Office issued a Notice of

Inquiry announcing two two-day public

roundtables in New York, New York on

May 2 and 3, 2016, and Stanford,

California on May 12 and 13, 2016.

The roundtables will offer an

opportunity for interested parties to

comment further on the issues raised in

the Office’s December 31, 2015 Notice of

Inquiry regarding section 512. See 80 FR

81862. Additional information about the

specific topics to be covered at the

roundtables is available at http://

www.copyright.gov/policy/section512/

public-roundtable/participate-

request.html. To ensure that those

interested in participating in the section

512 roundtables have sufficient time to

submit a request, the Office is extending

the deadline for such requests to April

11, 2016, at 11:59 p.m. Eastern Time.

Dated: March 29, 2016.

Maria A. Pallante,

[FR Doc. 2016–07550 Filed 4–1–16; 8:45 am]

BILLING CODE 1410–30–P

NEIGHBORHOOD REINVESTMENT

CORPORATION

Regular Board of Directors Meeting;

Sunshine Act

TIME AND DATE

: 10:00 a.m., Tuesday,

April 12, 2016.

PLACE

: NeighborWorks America—

Gramlich Boardroom, 999 North Capitol

Street NE., Washington DC 20002.

STATUS

: Open (with the exception of

Executive Session).

CONTACT PERSON

: Jeffrey Bryson, EVP &

General Counsel/Secretary, (202) 760–

4101; [email protected].

AGENDA

I. CALL TO ORDER

II. Approval of Minutes

III. Executive Session: Audit Committee

Report

IV. Executive Session: Report from CEO

V. Executive Session: Officer

Performance Reviews

VI. Business Intelligence

VII. CypherWorx

VIII. Northern Trust

IX. Audit Update

X. Strategic Plan Perspectives

XI. Management Program Background &

Updates

XII. Adjournment

The General Counsel of the

Corporation has certified that in his

opinion, one or more of the exemptions

set forth in 5 U.S.C. 552b(c)(2), (4) and

(6) permit closure of the following

portions of this meeting:

• Audit Committee Report

• Report from CEO

• Officer Performance Reviews

Jeffrey T. Bryson,

EVP & General Counsel/Corporate Secretary.

[FR Doc. 2016–07785 Filed 3–31–16; 4:15 pm]

BILLING CODE 7570–02–P

NUCLEAR REGULATORY

COMMISSION

[Docket No. 50–333; NRC–2016–0071]

Entergy Nuclear Operations, Inc.;

James A. FitzPatrick Nuclear Power

Plant

AGENCY

: Nuclear Regulatory

Commission.

ACTION

: License amendment application;

withdrawal by applicant.

SUMMARY

: The U.S. Nuclear Regulatory

Commission (NRC) has granted the

request of Entergy Nuclear Operations,

Inc. (Entergy, the licensee), to withdraw

its application dated August 20, 2015,

for a proposed amendment to Renewed

Facility Operating License No. DPR–59,

for the James A. FitzPatrick Nuclear

Power Plant (JAF), located in Oswego

County, New York. The proposed

amendment would have revised the JAF

Technical Specification (TS) to extend

primary containment Type A and Type

C leak rate test frequencies.

ADDRESSES

: Please refer to Docket ID

NRC–2016–0071 when contacting the

NRC about the availability of

information regarding this document.

You may obtain publicly-available

information related to this document

using any of the following methods:

• Federal Rulemaking Web site: Go to

http://www.regulations.gov and search

for Docket ID NRC–2016–0071. Address

questions about NRC dockets to Carol

Gallagher; telephone: 301–415–3463;

email: [email protected]. For

technical questions, contact the

individual listed in the

FOR FURTHER

INFORMATION CONTACT

section of this

document.

• NRC’s Agencywide Documents

Access and Management System

(ADAMS): You may obtain publicly-

available documents online in the

ADAMS Public Documents collection at

http://www.nrc.gov/reading-rm/

adams.html. To begin the search, select

‘‘ADAMS Public Documents’’ and then

select ‘‘Begin Web-based ADAMS

Search.’’ For problems with ADAMS,

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Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Notices

testimony in connection with their

presentation at the hearing, as provided

in section 207.24 of the Commission’s

rules, and posthearing briefs, which

must conform with the provisions of

section 207.67 of the Commission’s

rules. The deadline for filing

posthearing briefs is September 22,

2016. In addition, any person who has

not entered an appearance as a party to

the reviews may submit a written

statement of information pertinent to

the subject of the reviews on or before

September 22, 2016. On October 17,

2016, the Commission will make

available to parties all information on

which they have not had an opportunity

to comment. Parties may submit final

comments on this information on or

before October 19, 2016, but such final

comments must not contain new factual

information and must otherwise comply

with section 207.68 of the Commission’s

rules. All written submissions must

conform with the provisions of section

201.8 of the Commission’s rules; any

submissions that contain BPI must also

conform with the requirements of

sections 201.6, 207.3, and 207.7 of the

Commission’s rules. The Commission’s

Handbook on E-Filing, available on the

Commission’s Web site at http://

edis.usitc.gov, elaborates upon the

Commission’s rules with respect to

electronic filing.

Additional written submissions to the

Commission, including requests

pursuant to section 201.12 of the

Commission’s rules, shall not be

accepted unless good cause is shown for

accepting such submissions, or unless

the submission is pursuant to a specific

request by a Commissioner or

Commission staff.

In accordance with sections 201.16(c)

and 207.3 of the Commission’s rules,

each document filed by a party to the

reviews must be served on all other

parties to the reviews (as identified by

either the public or BPI service list), and

a certificate of service must be timely

filed. The Secretary will not accept a

document for filing without a certificate

of service.

The Commission has determined that

these reviews are extraordinarily

complicated and therefore has

determined to exercise its authority to

extend the review period by up to 90

days pursuant to 19 U.S.C.

1675(c)(5)(B).

Authority: These reviews are being

conducted under authority of title VII of the

Tariff Act of 1930; this notice is published

pursuant to section 207.62 of the

Commission’s rules.

By order of the Commission.

Issued: April 14, 2016.

Lisa R. Barton,

Secretary to the Commission.

[FR Doc. 2016–09080 Filed 4–19–16; 8:45 am]

BILLING CODE 7020–02–P

INTERNATIONAL TRADE

COMMISSION

Public Availability of the U.S.

International Trade Commission’s FY

2015 Service Contract Inventory

AGENCY

: U.S. International Trade

Commission.

ACTION

: Notice of public availability of

FY 2015 Service Contract Inventory.

SUMMARY

: In accordance with Section

743 of Division C of the Consolidated

Appropriations Act of 2010 (Pub. L.

111–117), the U.S. International Trade

Commission is publishing this notice to

advise the public of the availability of

the FY 2015 Service Contract Inventory.

The USITC has posted its inventory and

a summary of the inventory on USITC’s

Web site at the following link: http://

www.usitc.gov/procurement.htm.

This inventory provides information

on service contract actions over $25,000

that were awarded in FY 2015. The

information is organized by function to

show how contracted resources are

distributed throughout the agency. The

inventory has been developed in

accordance with guidance issued on

November 5, 2010, and December 19,

2011, by the Office of Management and

Budget’s Office of Federal Procurement

Policy.

Questions regarding the service

contract inventory should be directed to

Debra Bridge, Office of Procurement,

U.S. International Trade Commission, at

202–205–2004 or debra.bridge@

usitc.gov.

By order of the Commission.

Issued: April 14, 2016.

Lisa R. Barton,

Secretary to the Commission.

[FR Doc. 2016–09072 Filed 4–19–16; 8:45 am]

BILLING CODE 7020–02–P

INTERNATIONAL TRADE

COMMISSION

[USITC SE–16–014]

Government in the Sunshine Act

Meeting Notice

TIME AND DATE

: April 26, 2016 at 11 a.m.

PLACE

: Room 101, 500 E Street SW.,

Washington, DC 20436, Telephone:

(202) 205–2000.

STATUS

: Open to the public.

MATTERS TO BE CONSIDERED

1. Agendas for future meetings: None.

2. Minutes.

3. Ratification List.

4. Vote in Inv. No. 731–TA–282

(Fourth Review) (Petroleum Wax

Candles from China). The Commission

is currently scheduled to complete and

file its determination and views of the

Commission on May 10, 2016.

5. Outstanding action jackets: None.

In accordance with Commission

policy, subject matter listed above, not

disposed of at the scheduled meeting,

may be carried over to the agenda of the

following meeting.

Issued: April 15, 2016.

By order of the Commission.

William R. Bishop,

Supervisory Hearings and Information

Officer.

[FR Doc. 2016–09232 Filed 4–18–16; 11:15 am]

BILLING CODE 7020–02–P

LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015–7]

Section 512 Study: Notice of Location

Change for New York Public

Roundtables

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of location change for

New York public roundtables.

SUMMARY

: The United States Copyright

Office has changed the location of the

May 2 and 3, 2016 public roundtables

on the section 512 study. The public

roundtables in New York and California

were originally announced in the

Office’s Notice of Inquiry on March 18,

2016. See 81 FR 14896. The May 2 and

3, 2016 public roundtables in New York

will now be held in Room 506 of the

Thurgood Marshall United States

Courthouse, 40 Centre Street, New York,

New York, 10007.

DATES AND ADDRESSES

: The New York

roundtable will take place on May 2 and

3, 2016, from 9:00 a.m. to 5:00 p.m. on

both days, and will be held in Room 506

of the Thurgood Marshall United States

Courthouse, 40 Centre Street, New York,

New York, 10007.

FOR FURTHER INFORMATION CONTACT

Jacqueline C. Charlesworth, General

Counsel and Associate Register of

Copyrights, [email protected]; or

Karyn Temple Claggett, Director of the

Office of Policy and International

Affairs and Associate Register of

Copyrights, [email protected]. Both can be

reached by telephone at 202–707–8350.

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Federal Register / Vol. 81, No. 76 / Wednesday, April 20, 2016 / Notices

Memorandum and Order CLI–15–14, dated May

21, 2015 (ADAMS Accession No. ML15141A084).

SUPPLEMENTARY INFORMATION

: On

issued a Notice of Inquiry seeking

public comment on thirty topics

concerning the efficiency and

effectiveness of section 512 of Title 17.

See 80 FR 81862. The Office then issued

an NOI on March 18, 2016 announcing

two two-day public roundtables on

section 512 to be held in New York,

New York on May 2 and 3, 2016, and

Stanford, California on May 12 and 13,

2016. See 81 FR 14896. Interested

members of the public were directed to

submit participation requests through

forms posted on the Office’s Web site no

later than April 11, 2016.

Due to the significant level of interest

in the proceeding, the Office has

decided to move the location of the New

York roundtable to Room 506 of the

Thurgood Marshall United States

Courthouse, 40 Centre Street, New York,

New York 10007.

Please note that the roundtable

hearing rooms, in New York and

California, will have a limited number

of seats for participants and observers.

For individuals who wish to observe a

roundtable, the Office will provide

public seating on a first-come, first-

served basis on the days of the

roundtables.

Individuals selected for participation

in one or more of the roundtable

sessions will be notified directly by the

Office. For additional information about

the specific topics to be covered at the

roundtables, please see http://

roundtable/participate-request.html.

Dated: April 15, 2016.

Maria A. Pallante,

[FR Doc. 2016–09175 Filed 4–19–16; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL SCIENCE FOUNDATION

Advisory Committee for Social,

Behavioral and Economic Sciences;

Notice of Meeting

In accordance with Federal Advisory

Committee Act (Pub. L. 92–463, as

amended), the National Science

Foundation announces the following

meeting:

Name: Advisory Committee for Social,

Behavioral and Economic Sciences (#1171).

Date/Time: May 23, 2016; 9:00 a.m. to 5:00

p.m. May 24, 2016; 8:30 a.m. to 12:30 p.m.

Place: National Science Foundation, 4201

Wilson Boulevard, Stafford I Room 1235,

Arlington, VA 22230.

Type Of Meeting: Open.

Contact Person: Dr. Deborah Olster, Office

of the Assistant Director, Directorate for

Social, Behavioral and Economic Sciences,

National Science Foundation, 4201 Wilson

Boulevard, Room 905, Arlington, Virginia

22230, 703–292–8700.

Summary Of Minutes: May be obtained

from contact person listed above.

Purpose Of Meeting: To provide advice and

recommendations to the National Science

Foundation on major goals and policies

pertaining to Social, Behavioral and

Economic Sciences Directorate (SBE)

programs and activities.

Agenda

Monday, May 23, 2016

SBE Directorate and Division Updates

Grand Challenges in the SBE Sciences

Graduate Education in the SBE Sciences

Science of Science Communications

Tuesday, May 24, 2016

Public Access to SBE Data

Cyberinfrastructure: Collaborations between

SBE and the Directorate for Computer &

Information Science & Engineering

NSF Broader Impacts Strategic Review

Meeting with NSF Leadership

Future Meetings, Assignments and

Concluding Remarks

Dated: April 14, 2016.

Crystal Robinson,

Committee Management Officer.

[FR Doc. 2016–09049 Filed 4–19–16; 8:45 am]

BILLING CODE 7555–01–P

NUCLEAR REGULATORY

COMMISSION

[Docket Nos. 50–275 and 50–323; NRC–

2016–0080]

Diablo Canyon Power Plant, Units 1

and 2

AGENCY

: Nuclear Regulatory

Commission.

ACTION

: Request for action; receipt.

SUMMARY

: The U.S. Nuclear Regulatory

Commission (NRC) is giving notice that

Friends of the Earth (FOE or petitioner)

filed a Petition to Intervene and Request

for Hearing concerning Diablo Canyon

Power Plant (DCPP) on August 26, 2014,

asserting, in part, its concerns about

DCPP’s operational safety and ability to

safely shut down in the event of a

nearby earthquake. The Commission

referred those concerns to the NRC’s

Executive Director for Operations (EDO)

for consideration. The petitioner’s

requests are included in the

SUPPLEMENTARY INFORMATION

section of

this document.

ADDRESSES

: Please refer to Docket ID

NRC–2016–0080 when contacting the

NRC about the availability of

information regarding this document.

You may obtain publicly-available

information related to this document

using any of the following methods:

• Federal Rulemaking Web site: Go to

http://www.regulations.gov and search

for Docket ID NRC–2016–0080. Address

questions about NRC dockets to Carol

Gallagher; telephone: 301–415–3463;

email: [email protected]. For

technical questions, contact the

individual listed in the

FOR FURTHER

INFORMATION CONTACT

section of this

document.

• NRC’s Agencywide Documents

Access and Management System

(ADAMS): You may obtain publicly-

available documents online in the

ADAMS Public Documents collection at

http://www.nrc.gov/reading-rm/

adams.html. To begin the search, select

‘‘ADAMS Public Documents’’ and then

select ‘‘Begin Web-based ADAMS

Search.’’ For problems with ADAMS,

please contact the NRC’s Public

Document Room (PDR) reference staff at

1–800–397–4209, 301–415–4737, or by

email to [email protected]. The

ADAMS accession number for each

document referenced (if that document

is available in ADAMS) is provided the

first time that a document is referenced.

• NRC’s PDR: You may examine and

purchase copies of public documents at

the NRC’s PDR, Room O1–F21, One

White Flint North, 11555 Rockville

Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT

: Lisa

M. Regner, Office of Nuclear Reactor

Regulation, U.S. Nuclear Regulatory

Commission, Washington DC 20555–

0001; telephone: 301–415–1906, email:

[email protected].

SUPPLEMENTARY INFORMATION

On August 26, 2014, FOE filed a

Petition to Intervene and Request for

Hearing (Petition) concerning DCPP

(ADAMS Package Accession No.

ML15226A316). Within this Petition,

FOE asserted concerns about DCPP’s

operational safety and ability to safely

shut down. The Commission referred

those concerns to the NRC’s EDO

for

consideration under the regulations in

section 2.206 of title 10 of the Code of

Federal Regulations (10 CFR), ‘‘Requests

for Action Under this Subpart.’’ The

EDO then referred these concerns to the

NRC’s Office of Nuclear Reactor

Regulation for consideration under 10

CFR 2.206.

On two occasions, the NRC offered

the petitioner opportunities to address

the Petition Review Board (PRB), which

was established to review the concerns

referred to the EDO from the

Commission, as discussed above. In

response, on September 30, 2015, and

February 8, 2016, FOE’s attorney

provided written submissions on behalf

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other mine if the Secretary of Labor

determines that:

1. An alternative method of achieving

the result of such standard exists which

will at all times guarantee no less than

the same measure of protection afforded

the miners of such mine by such

standard; or

2. That the application of such

standard to such mine will result in a

diminution of safety to the miners in

such mine.

In addition, the regulations at 30 CFR

44.10 and 44.11 establish the

requirements and procedures for filing

petitions for modification.

II. Petitions for Modification

Docket Number: M–2016–010–C.

Petitioner: Buckingham Coal

Company, P.O. Box 400, Corning, Ohio

43730–0400.

Mine: Buckingham Mine #6, MSHA

I.D. No. 33–04526, located in Perry

County, Ohio.

Regulation Affected: 30 CFR 75.1101–

1(b) (Deluge-type water spray systems).

Modification Request: The petitioner

requests a modification of the existing

standard to allow the mine not to

provide blow-off dust covers on deluge-

type system nozzles under existing 30

CFR 75.1101–1(b). The functional tests

required of the deluge system each year

will instead be done weekly. The

petitioner states that the #6 Mine

maintains more than adequate pressure

and flow rates for the deluge system,

and in some tests, the dust covers do not

come off all sprays. The petitioner

further states that:

(1) By doing the functional test

weekly, all sprays can be inspected and

maintained on a weekly basis.

(2) The dust covers provide protection

for sprays which are tested yearly and

by testing weekly the covers are not

necessary.

The petitioner asserts that the

proposed alternative method will at all

times guarantee no less than the same

measure or protection afforded by the

existing standard.

Sheila McConnell,

Director, Office of Standards, Regulations,

and Variances.

[FR Doc. 2016–09798 Filed 4–26–16; 8:45 am]

BILLING CODE 4520–43–P

LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015–7]

Section 512 Study: Notice of Location

Change for California Public

Roundtables

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of location change for

California public roundtables.

SUMMARY

: The United States Copyright

Office has changed the location of the

May 12 and 13, 2016 public roundtables

on the section 512 study. The Office

announced the public roundtables in

New York and California by notice in

the Federal Register on March 18, 2016.

See 81 FR 14896. The May 12 and 13,

2016 public roundtables in California

will now be held in Courtroom 4 of the

Ninth Circuit James R. Browning

Courthouse, 95 Seventh Street, San

Francisco, California 94103.

Dates and Addresses

The California roundtable will take

place on May 12 and 13, 2016, from 9:00

a.m. to 5:00 p.m. on both days, and will

be held in Courtroom 4 of the Ninth

Circuit James R. Browning Courthouse,

95 Seventh Street, San Francisco,

California 94103.

FOR FURTHER INFORMATION CONTACT

Jacqueline C. Charlesworth, General

Counsel and Associate Register of

Copyrights, [email protected]; or

Karyn Temple Claggett, Director of the

Office of Policy and International

Affairs and Associate Register of

Copyrights, [email protected]. Both can be

reached by telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

: On

issued a Notice of Inquiry seeking

public comment on thirty topics

concerning the efficiency and

effectiveness of section 512 of Title 17.

See 80 FR 81862. The Office then issued

a notice of public roundtables on March

18, 2016 announcing two two-day

public roundtables on section 512 to be

held in New York, New York on May 2

and 3, 2016, and Stanford, California on

May 12 and 13, 2016. See 81 FR 14896.

Interested members of the public were

directed to submit participation requests

through forms posted on the Office’s

Web site no later than April 11, 2016.

Due to the significant level of interest

in the proceeding, the Office has

decided to move the location of the

California roundtable to Courtroom 4 of

the Ninth Circuit James R. Browning

Courthouse, 95 Seventh Street, San

Francisco, California 94103.

Please note that the roundtable

hearing rooms, in New York and

California, will have a limited number

of seats for participants and observers.

For individuals who wish to observe a

roundtable, the Office will provide

public seating on a first-come, first-

served basis on the days of the

roundtables.

Individuals selected for participation

in one or more of the roundtable

sessions have been notified directly by

the Office. For additional information

about the specific topics to be covered

at the roundtables, please see http://

roundtable/participate-request.html.

Dated: April 22, 2016.

Jacqueline C. Charlesworth,

General Counsel and Associate Register of

Copyrights, U.S. Copyright Office.

[FR Doc. 2016–09869 Filed 4–26–16; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

[Notice: 16–030]

Aerospace Safety Advisory Panel;

Meeting

AGENCY

: National Aeronautics and

Space Administration (NASA).

ACTION

: Notice of meeting.

SUMMARY

: In accordance with the

Federal Advisory Committee Act, Public

Law 92–463, as amended, the National

Aeronautics and Space Administration

announces a forthcoming meeting of the

Aerospace Safety Advisory Panel.

DATES

: Thursday, May 12, 2016, 10:30

a.m. to 11:45 a.m., Central Time.

ADDRESSES

: NASA Marshall Space

Flight Center, Building 4200, Room 600,

Huntsville, Alabama 35812.

FOR FURTHER INFORMATION CONTACT

: Ms.

Marian Norris, Aerospace Safety

Advisory Panel Administrative Officer,

NASA Headquarters, Washington, DC

20546, (202) 358–4452 or mnorris@

nasa.gov.

SUPPLEMENTARY INFORMATION

: The

Aerospace Safety Advisory Panel

(ASAP) will hold its Second Quarterly

Meeting for 2016. This discussion is

pursuant to carrying out its statutory

duties for which the Panel reviews,

identifies, evaluates, and advises on

those program activities, systems,

procedures, and management activities

that can contribute to program risk.

Priority is given to those programs that

involve the safety of human flight. The

agenda will include:

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See Section 512 Study: Notice and Request for

Public Comment, 80 FR 81862, 81868 (Dec. 31,

2015).

and domestic violence is often cited as

the primary cause of homelessness.

There is a significant need for housing

programs that offer supportive services

and resources to victims of domestic

violence and their children in ways that

are trauma-informed and culturally

relevant. The Administration for

Children and Families (ACF), Family

and Youth Services Bureau, Division of

Family Violence Prevention and

Services (DFVPS), the US Department of

Justice Office of Justice Programs Office

for Victims of Crime (OJP/OVC), Office

on Violence Against Women (OVW),

and the Department of Housing and

Urban Development (HUD) have

established a federal technical

assistance consortium that will provide

national domestic violence and housing

training, technical assistance, and

resource development. The Domestic

Violence and Housing Technical

Assistance Consortium will implement

a federally coordinated approach to

providing resources, program guidance,

training, and technical assistance to

domestic violence, homeless, and

housing service providers.

The Safe Housing Needs Assessment

will be used to determine the training

and technical assistance needs of

organizations providing safe housing for

domestic violence victims and their

families.

The Safe Housing Needs Assessment

will gather input from community

service providers, coalitions and

continuums of care. This assessment is

the first of its kind aimed at

simultaneously reaching the domestic

and sexual violence field, as well as the

homeless and housing field. The

assessment seeks to gather information

on topics ranging from the extent to

which both fields coordinate to provide

safety and access to services for

domestic and sexual violence survivors

within the homeless system, to ways in

which programs are implementing

innovative models to promote long-term

housing stability for survivors and their

families. Additionally, this assessment

seeks to identify specific barriers

preventing collaboration across these

fields, as well as promising practices.

The results will help the Consortium

provide organizations and communities

with the tools, strategies and support

necessary to improve coordination

between domestic violence/sexual

assault service providers and homeless

and housing service providers, so that

survivors and their children can

ultimately avoid homelessness and live

free from abuse.

(5) An estimate of the total number of

respondents and the amount of time

estimated for an average respondent to

respond/reply: It is estimated that it will

take the approximately 78,660

respondents approximately fifteen

minutes to complete an online

assessment tool.

(6) An estimate of the total public

burden (in hours) associated with the

collection: The total annual hour burden

to complete the data collection forms is

19,665 hours, that is 78,660

organizations completing an assessment

tool one time with an estimated

completion time being fifteen minutes.

If additional information is required

contact: Jerri Murray, Department

Clearance Officer, United States

Department of Justice, Justice

Management Division, Policy and

Planning Staff, Two Constitution

Square, 145 N Street NE., 3E.405B,

Washington, DC 20530.

Dated: November 3, 2016.

Jerri Murray,

Department Clearance Officer for PRA, U.S.

Department of Justice.

[FR Doc. 2016–26920 Filed 11–7–16; 8:45 am]

BILLING CODE 4410–FX–P

LIBRARY OF CONGRESS

[Docket No. 2015–7]

Section 512 Study: Request for

Additional Comments

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of inquiry.

SUMMARY

: The U.S. Copyright Office

seeks further comments on the impact

and effectiveness of the Digital

Millennium Copyright Act (‘‘DMCA’’)

safe harbor provisions. This request

provides an opportunity for interested

parties to reply or expand upon issues

raised in written comments submitted

on or before April 1, 2016, and during

the public roundtables held May 2–3,

2016 in New York, and May 12–13,

2016 in San Francisco. The Copyright

Office also invites parties to submit

empirical research studies assessing

issues related to the operation of the

safe harbor provisions on a quantitative

or qualitative basis.

DATES

: Written responses to the

questions outlined below must be

received no later than 11:59 p.m.

Eastern Time on February 6, 2017.

Empirical research studies providing

quantitative or qualitative data relevant

to the subject matter of this study must

be received no later than 11:59 p.m.

Eastern Time on March 8, 2017.

ADDRESSES

: For reasons of government

efficiency, the Copyright Office is using

the regulations.gov system for the

submission and posting of public

comments in this proceeding. All

comments are therefore to be submitted

electronically through regulations.gov.

Specific instructions for submitting

comments are available on the

comment-submission/. To meet

accessibility standards, all comments

must be provided in a single file not to

exceed six megabytes (MB) in one of the

following formats: Portable Document

File (PDF) format containing searchable,

accessible text (not an image); Microsoft

Word; WordPerfect; Rich Text Format

(RTF); or ASCII text file format (not a

scanned document). The form and face

of the comments must include the name

of the submitter and any organization

the submitter represents. The Office will

post all comments publicly in the form

that they are received. If electronic

submission of comments is not feasible

due to lack of access to a computer and/

or the Internet, please contact the Office,

using the contact information below, for

special instructions.

FOR FURTHER INFORMATION CONTACT

Cindy Abramson, Assistant General

Counsel, by email at [email protected] or by

telephone at 202–707–8350; Kevin

Amer, Senior Counsel for Policy and

International Affairs, by email at

[email protected] or by telephone at 202–

707–8350; or Kimberley Isbell, Senior

Counsel for Policy and International

Affairs, by email at [email protected] or by

telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

I. Background

In order to evaluate key parts of the

to evaluate the impact and effectiveness

of the DMCA safe harbor provisions

contained in 17 U.S.C. 512. To aid its

work in this area, the Office published

an initial Notice of Inquiry on December

31, 2015 (‘‘First Notice’’), seeking

written comments to 30 questions

covering eight categories of topics.

These included questions about the

general efficacy of the DMCA provisions

enacted in 1998, as well as the practical

costs, and burdens, of the current

DMCA environment.

The Office

received a combination of more than

92,000 written submissions and form

replies in response to the First Notice,

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See Section 512 Study: Announcement of Public

Roundtables, 81 FR 14896 (Mar. 18, 2016).

References to the transcripts in this document

are indicated by ‘‘Tr.,’’ followed by the page(s) and

line(s) of the reference, the date of the roundtable,

and the speaker’s name and affiliation.

See, e.g., Tr. at 174:13–17 (May 3, 2016)

(Andrew Deutsch, DLA Piper) (‘‘[T]he world of

creators runs from individual singer-songwriters to

gigantic studios and record producers. They have

different needs, different problems, and it really is

impossible to create a system that does everything

for everyone.’’).

See, e.g., Dirs. Guild of Am., Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 6 (Apr. 1, 2016)

(‘‘To utilize the DMCA notice and takedown

mechanism, a rights holder must first prepare

notices in exact accordance with the complicated

legal requirements of Section 512. Sending these

notices to a designated agent of the service provider

requires a level of legal expertise that larger rights

holders may possess but which smaller creators do

not have at their disposal.’’); Kernochan Ctr. for

Law, Media & the Arts, Columbia Law Sch.,

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 7 (Apr.

1, 2016) (‘‘The process is burdensome for

individuals and entities of any size. Larger entities,

which may hold or manage numerous copyrighted

works, may use technological tools and many

employees or consultants to search for infringing

files on the [I]nternet and to file notices in an

attempt to get them removed. Independent creators,

however, often have to face this issue alone.’’).

See Tr. at 146:8–20 (May 2, 2016) (Brianna

Schofield, Univ. of Cal., Berkeley Sch. of Law)

(‘‘[W]e looked at notices sent to Google Images

search and these notice senders tended to be

individuals, smaller businesses and we saw a much

different dynamic here in that these were targeting

sites that we might be more fearful would

compromise legitimate expression, so blogs,

message board threads.... Fifteen percent

weren’t even copyright complaints to start with.

They were submitted as a DMCA complaint but

they were actually complaining about privacy or

defamation, this sort of thing.’’); Tr. at 36:3–37:9

(May 12, 2016) (Jennifer Urban, Univ. of Cal.,

Berkeley Sch. of Law). But see Jonathan Bailey,

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 2 (Feb.

16, 2016) (‘‘With this automation has come

increased mistakes. Machines are simply not as

good at detecting infringement and fair use issues

as humans.’’).

See, e.g., Tr. at 282:21–283:6 (May 13, 2016)

(Cathy Gellis, Dig. Age Def.); Tr. at 324:1–15 (May

2, 2016) (Ellen Schrantz, Internet Ass’n).

Larger both in terms of the amount of content

that appears on the site, and the technological and

monetary resources available to address DMCA

notices.

See, e.g., Audible Magic Corp., Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 4 (Mar. 21, 2016)

(‘‘[U]ser-generated-content sharing and cloud file

sharing networks [including Facebook,

Dailymotion, SoundCloud, and Twitch] . . .

dramatically reduce copyright-infringing media

sharing using Audible Magic software and hosted

services [to] . . . detect[] registered audio and video

content in the user upload stream.’’); Pinterest Inc.,

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 3 (Apr.

1, 2016) (‘‘[O]ur engineering team built a tool that

allowed us to . . . attach the author’s name to [an]

image.... Pinterest has also developed tools to

help content owners prevent certain content from

being saved to Pinterest, and to enable the quick

removal of their content if they so wish.’’).

See, e.g., Tr. at 111:17–21 (May 12, 2016) (Lila

Bailey, Internet Archive) (‘‘The Internet Archive

definitely falls into the DMCA Classic [category].

They have a tiny staff . . . and they review every

notice they get by a human being.’’); Tr. at 157:3–

10 (May 12, 2016) (Joseph Gratz, Durie Tangri LLP)

(‘‘[T]he Internet from 1998 is still all there . . . it’s

small OSPs, small content creators, small copyright

holders needing remedies for small

infringements.’’); Tr. at 100:10–15 (May 12, 2016)

(Charles Roslof, Wikimedia Found.) (‘‘We operate

Wikipedia and . . . despite the large amount of

content we host, we receive very few takedown

notices.’’).

See Internet Ass’n, Comments Submitted in

Notice of Inquiry at 15 (Mar. 31, 2016) (‘‘[S]tartups

and small businesses lack the sophisticated

resources of larger, more established businesses in

responding to takedown requests.’’).

which can be found on the

regulations.gov Web site at https://

www.regulations.gov/docket?D=COLC-

2015-0013.

convened roundtables in New York and

San Francisco, each for a two day

period. The roundtables provided

participants with the opportunity to

share their views on the topics

identified in the First Notice, as well as

any other issues relating to the

operation of the DMCA safe harbors.

Transcripts of the proceedings at each of

the roundtables are available on the

‘‘Public Roundtables.’’

Based on the initial round of written

submissions and the results of the

roundtable discussions, the Copyright

Office believes a number of themes

merit additional consideration. Many of

these relate to questions of balance, i.e.,

how to weigh the diverse interests and

needs of affected stakeholders,

including individual authors and their

small businesses, publishers and

producers of all sizes, Internet service

providers (‘‘ISPs’’) of all sizes, and

members of the public who may seek to

access the Internet on any given day for

any number of reasons. The Office is

also interested in feedback regarding

how to continue to propel the DMCA’s

underlying public interest objectives,

that is, its twin goals of fostering a

robust and innovative online

environment while protecting the rights

of content creators. Within these broad

categories, the specific topics

participants raised can be further

grouped in the following general areas:

(1) Characteristics of the current Internet

ecosystem; (2) operation of the current

DMCA safe harbor system; (3) potential

future evolution of the DMCA safe

harbor system, including possible

legislative improvements; and (4) other

developments.

A. Characteristics of the Current

Internet Ecosystem

One of the key themes that emerged

from the first round of public comments

and the roundtable discussions was the

diversity of the current Internet

ecosystem and the importance of

factoring such diversity into any

policymaking in the online space.

Participants noted that there is a wide

variety of experiences and views even

within particular stakeholder groups.

For example, study participants

pointed out that differences in the

characteristics of content creators result

in different experiences with the

operation of the DMCA safe harbors.

They noted that the burden of

addressing online infringement without

an in-house piracy team is especially

great for smaller content creators and

businesses, and that some of the tools

available to larger content owners are

unavailable to smaller creators as a

result of cost or other considerations.

Similarly, some expressed the view that

the quality of takedown notices often

varies depending on the identity and

size of the content creator, with notices

from individuals and smaller entities

often being less sophisticated and/or

accurate than notices sent by large

corporations employing automated

processes.

Other study participants

highlighted the importance of taking

into consideration the experiences of

non-professional creators who rely on

the platforms enabled by the DMCA safe

harbors to disseminate and receive

remuneration for their works.

Likewise, a heterogeneous picture of

ISPs emerged from the first round of

comments and the public roundtables,

with large deviations in terms of

functions, size, resources, and business

models, as well as the volume of DMCA

takedown notices received on an annual

basis. While some of the larger

platforms

like Google, Facebook,

SoundCloud, and Pinterest have

devoted resources to implementing

automated filtering systems and other

tools to remove significant amounts of

infringing content,

there appear to be

many more ISPs that are continuing to

operate manual DMCA takedown

processes for a lower volume of

notices.

Some commenters expressed

concern that promulgation of rules

designed for the former could place an

undue burden on the operations of the

latter.

In addition, several study participants

highlighted the importance of taking

into consideration the needs of

individual Internet users when

developing recommendations for

possible changes to the DMCA safe

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See Pub. Knowledge, Comments Submitted in

Notice of Inquiry at 4 (Apr. 1, 2016) (‘‘Section 512

appropriately balances the interests of online

platforms and copyright owners .... Where the

balance is acutely in need of recalibration, though,

is with respect to user rights.’’); Tr. at 101:4–10

(May 13, 2016) (Daphne Keller, Stanford Law Sch.

Ctr. for Internet & Soc’y).

Compare Tr. at 92:6–11 (May 12, 2016) (Jordan

Berliant, Revelation Mgmt. Grp.) (‘‘I’m very

concerned about even our biggest client’s ability to

earn a living under the current copyright protection

system, which, in effect, sanctions the infringement

of their rights and is devastating to the revenue that

they can earn from recording music.’’), and Tr. at

119:1–5 (May 2, 2016) (Jennifer Pariser, Motion

Picture Ass’n of Am.) (‘‘[T]his is where on the

content side we feel the imbalance comes, that

[processing takedown notices is] a cost of doing

business for an online service provider that is

relatively manageable for them, whereas on the

creation side, we’re being killed by piracy.’’), with

Facebook, Inc., Comments Submitted in Response

Inquiry at 4 (Apr. 1, 2016) (‘‘It is quite

effective.... [W]hile the DMCA by necessity

imposes some burden on the respective parties, its

procedures unquestionably result in the effective

and consistent removal of infringing content from

the Internet.’’), and Amazon.com, Inc., Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 3–4 (Apr. 1, 2016)

(discussing the role of section 512 in fostering a

balanced copyright regime that allows Internet

creativity and innovation).

See Intel Corp., Comments Submitted in

Notice of Inquiry at 4–5 (Apr. 1, 2016) (‘‘As stated

in the House Report, the goal of the [Digital

Millennium Copyright] Act was to lubricate the

legitimate distribution of creative content. When

measured by these Congressional yardsticks,

Section 512 has been a stunning success.... At

the same time, Congress desired to preserve ‘strong

incentives for service providers and copyright

owners to cooperate to detect and deal with

digital networked environment.’ Intel believes that

the Act has done just that.’’).

See, e.g., New Am.’s Open Tech. Inst.,

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 3 (Apr.

1, 2016); Tr. at 77:7–13 (May 13, 2016) (Fred von

Lohmann, Google, Inc.) (‘‘I disagree with people

who think that a large volume of notices is a sign

of failure; in fact, quite the contrary. If the notices

weren’t doing any good, if it was too expensive to

send, we would expect the numbers to be falling,

not rising. And in fact, we see them rising because

the systems are more efficient.’’).

See, e.g., Am. Ass’n of Indep. Music et al., Joint

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 21 (Apr.

1, 2016); T Bone Burnett et al., Joint Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 2 (Apr. 1, 2016).

See, e.g., Tr. at 108:2–5 (May 13, 2016) (Dean

Marks, Motion Picture Ass’n of Am.).

See, e.g., Jill Doe, Comments Submitted in

Notice of Inquiry at 2 (Mar. 21, 2016); Verizon

Commc’ns, Comments Submitted in Response to

Inquiry at 18 (Apr. 1, 2016).

See, e.g., Tr. at 153:3–17 (May 2, 2016)

(Rebecca Prince, Becky Boop); Tr. at 75:4–8 (May

12, 2016) (Alex Feerst, Medium); Tr. at 164:9–16

(May 12, 2016) (Joseph Gratz, Durie Tangri LLP).

See, e.g., Engine et al., Comments Submitted in

Notice of Inquiry at 9 (Apr. 1, 2016); Internet

Commerce Coal., Comments Submitted in Response

Inquiry at 3 (Apr. 1, 2016).

See, e.g., Tr. at 155:9–13 (May 2, 2016) (Steven

Rosenthal, McGraw-Hill Educ.); Tr. at 183:21–184:1

(May 12, 2016) (Gabriel Miller, Paramount Pictures

Corp.).

See Copyright All., Comments Submitted in

Notice of Inquiry at 20–21 (Apr. 1, 2016).

See, e.g., Dig. Media Licensing Ass’n, Inc. et al.,

Joint Comments Submitted in Response to U.S.

at 7 (Apr. 1, 2016); Sony Music Entm’t, Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 16 (Apr. 1, 2016)

(citing the cost of litigation as accounting for the

fact that ‘‘since 2008, thousands of videos infringing

Sony’s copyrights have been reinstated on YouTube

due to counter notifications not being contested by

Sony’’ even though ‘‘[i]n the vast majority of those

instances, there was no legitimate question that the

use infringed Sony’s exclusive rights’’).

See Tr. at 54:22–55:11 (May 3, 2016) (Matthew

Schruers, Comput. & Commc’ns Indus. Ass’n).

See Internet Archive, Comments Submitted in

Notice of Inquiry at 3 (Mar. 22, 2016).

See Jennifer M. Urban, Joe Karaganis & Brianna

L. Schofield, Notice and Takedown in Everyday

Practice 37 (UC Berkeley Pub. Law Research, Paper

No. 2755628, 2016), http://ssrn.com/

abstract=2755628.

See Ass’n of Am. Publishers, Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 7 (Apr. 1, 2016);

Tr. at 19:5–11 (May 12, 2016) (Devon Weston,

Digimarc).

See, e.g., Ellen Seidler, Fast Girl Films,

Comments Submitted in Response to U.S. Copyright

harbor system.

Participants

emphasized that the DMCA counter-

notice process is an important

mechanism to protect the legitimate

online speech of individual Internet

users, and that the proliferation of

diverse platforms and services made

possible by the DMCA safe harbors

provides a critical benefit for the public.

B. Operation of the Current DMCA Safe

Harbor System

While some study participants

asserted that the section 512 safe

harbors are currently operating

effectively and as Congress intended, a

number of participants identified

various shortcomings and barriers for

content creators, ISPs, and individual

Internet users. These differing views

were especially stark when comparing

the experiences of content creators

(large and small) with the experiences of

online service providers.

ISPs

generally painted a picture of a thriving

and vibrant Internet ecosystem that was

largely the result of the safeguards and

protections of the DMCA safe harbors.

While ISP participants acknowledged

the ever-increasing volume of takedown

notices that are now being sent, they

viewed the ability of larger ISPs to

accommodate the increased volume as

an example of the overall success of the

system.

In stark contrast, many

content creators of all sizes bemoaned

what they saw as the inefficiency and

ineffectiveness of the system.

These

participants complained about the time

and resources necessary to police the

Internet and viewed the ever-increasing

volume of notices as an example of the

DMCA notice-and-takedown regime’s

failure to sufficiently address the

continued proliferation of online

infringement.

ISPs, civic organizations, and content

creators also expressed differing views

regarding the extent to which false or

abusive notices are a problem under the

current system, and the effectiveness of

the counter-notice process for ensuring

access to legitimate content. Several

ISPs and civic groups pointed to abusive

notices as one of the primary

shortcomings of the safe harbor regime.

They pointed to the length of time

required to have material replaced after

a counter-notice,

and argued that

having non-infringing content removed

even for a few days can severely impact

a business.

Several groups cited recent

data released by researchers at the

University of California, Berkeley

School of Law as evidence of the scope

of the problem.

Some content creators,

on the other hand, expressed the view

that abusive notices are in fact quite

rare

and that the number of improper

notices pales in comparison to the

overwhelming volume of infringing

content. They argued that the counter-

notice process sufficiently protects

legitimate material,

and pointed out

that the financial burden of bringing a

federal court case to prevent the

reposting of infringing material within

days of receiving a counter-notice makes

the provision unusable in practice.

Both content creators and ISPs

identified shortcomings in their abilities

to efficiently process notices under the

current system. ISPs identified the

difficulty of receiving notices through

multiple channels (e.g., email, web

form, fax, etc.),

as well as incomplete

or unclear notices,

as barriers to

efficient processing of takedown

requests. Several ISPs have reported

moving to the use of web forms for

receipt of takedown notices in order to

overcome some of these difficulties.

In contrast, many content creators

identified ISP-specific web forms as a

barrier to effective use of the notice-and-

takedown process, increasing the

amount of time required to have the

same material taken down across

multiple platforms.

Other barriers to

use of the notice-and-takedown process

identified by content creators included

additional ISP-created requirements that

some claimed go far beyond the

requirements of the DMCA,

and

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Office’s Dec. 31, 2015 Notice of Inquiry at 2 (Apr.

1, 2016) (‘‘Because the email address for Google’s

DMCA Agent is not posted on its Web sites, rights

holders must jump through various hoops and

navigate through a series of questions in order to

arrive at the correct form. Once there it takes

additional time to complete the 9-part form. Before

one can actually send it one must be sure to create

a Google account, then login and send.’’); Tr. at

59:14–19 (May 2, 2016) (Lisa Shaftel, Graphic

Artists Guild).

See, e.g., Arts & Entm’t Advocacy Clinic at

George Mason Univ. Sch. of Law, Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 11 (Apr. 1, 2016)

(‘‘[P]ublicly revealing personal information about a

notice sender may endanger the artist’s property

and safety.’’).

See, e.g., Rodrigo Adair, Comments Submitted

Notice of Inquiry at 1–2 (Mar. 18, 2016); New Media

Rights, Comments Submitted in Response to U.S.

at 16–17 (Apr. 1, 2016); Tr. at 253:5–7 (May 13,

2016) (Michael Michaud, Channel Awesome, Inc.).

See, e.g., Matthew Barblan et al., Joint

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 1 (Apr.

1, 2016); Tr. at 196:25–197:12 (May 3, 2016) (June

Besek, Kernochan Ctr. for Law, Media & the Arts)

(‘‘[I]n the last 18 years or so, I think courts have

often placed a lot of emphasis on the ability of

service providers to flourish and grow and perhaps

less emphasis on the concerns of right holders. And

you can see that in a lot of different ways—defining

storage very broadly, defining red flag knowledge

very narrowly, reading representative lists out of

the statute, basically, leaving right holders with

little recourse other than sending notice after notice

after notice to prevent reposting of their material.

And they can never really prevent it.’’).

See, e.g., Am. Cable Ass’n, Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 5 (Apr. 1, 2016);

CTIA—The Wireless Ass’n, Comments Submitted in

Notice of Inquiry at 11–12 (Apr. 1, 2016).

See, e.g., Tr. 65:24–67:21 (May 2, 2016)

(Jacqueline Charlesworth, U.S. Copyright Office;

Patrick Flaherty, Verizon Commc’ns).

See Tr. 257:12–15 (May 2, 2016) (David Jacoby,

Sony Music Entm’t).

See Tr. at 73:23–74:8 (May 2, 2016) (Lisa

Hammer, independent film director).

See Tr. at 52:6–10 (May 2, 2016) (Janice Pilch,

Rutgers Univ. Libraries); Tr. at 279:21–281:8 (May

12, 2016) (Brian Willen, Wilson Sonsini Goodrich);

Tr. at 253:22–254:11 (May 13, 2016) (Michael

Michaud, Channel Awesome, Inc.).

See Future of Music Coal., Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 18 (Apr. 1, 2016).

See, e.g., Universal Music Grp., Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 18 (Apr. 1, 2016);

Tr. at 97:17–98:4 (May 13, 2016) (Betsy Viola

Zedek, The Walt Disney Co.).

See, e.g., Wikimedia Found., Comments

Submitted in Response to U.S. Copyright Office’s

Dec. 31, 2015 Notice of Inquiry at 7 (Apr. 1, 2016);

Tr. at 312:16–20 (May 2, 2016) (Sarah Feingold,

Etsy, Inc.).

While many of the voluntary measures

discussed by study participants were technological

in nature (such as Google’s Content ID system),

there were other programs that some participants

pointed to as potential blueprints for private action

to improve the operation of the safe harbor

processes, including development of industry best

practices guidelines; initiatives like the Copyright

Alert System; cooperative arrangements between

content owners and payment processors,

advertisers, and domain name registries; and

voluntary demotion of infringing results by search

engines. Although many participants expressed

optimism that voluntary agreements could help

improve the efficacy of the safe harbor system, other

participants cautioned that voluntary measures

should be viewed as supplements to reform, rather

than replacements for it. See Content Creators Coal.,

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 27–30

(Apr. 1, 2016). Still others objected to the idea of

voluntary agreements as unrepresentative and

potentially undemocratic. See, e.g., Elec. Frontier

Found., Comments Submitted in Response to U.S.

at 15 (Apr. 1, 2016); Tr. at 177:17–22 (May 13, 2016)

(Michael Masnick, Copia Institute); Tr. at 171:8–13

(May 13, 2016) (T.J. Stiles, author).

See Tr. at 173:18–174:16 (May 13, 2016) (Sean

O’Connor, Univ. of Washington (Seattle)) (‘‘[O]ne-

size-fits-all can’t work . . . [but] if you create a

taxonomy that [covers the] different kinds of

content industry and also different kind[s] of

service providers . . . you can . . . [c]ome up with

. . . standard technical measures for that particular

subdivision area.’’).

See, e.g., Info. Tech. & Innovation Found.,

Comments Submitted in Response to U.S. Copyright

Continued

privacy concerns stemming from the

public release of personal information

about the notice sender.

Study participants noted similar

barriers that discourage users from

submitting counter-notices, even in

response to what some consider to be

erroneous or fraudulent takedown

notices. The identified barriers included

a similar lack of standardization for

filing counter-notices, a lack of

education regarding the counter-notice

process, privacy concerns, and the

threat of potential legal proceedings.

In addition to noting practical barriers

that may make utilization of the safe

harbor system difficult, several

commenters pointed to court opinions

that they argue have decreased the

effectiveness of the statutory scheme

created by Congress. These

developments include judicial

interpretations of the actual and red flag

knowledge standards, the right and

ability to control and financial benefit

tests, section 512’s references to

‘‘representative lists,’’ and section 512’s

requirement that ISPs implement a

repeat infringer policy. Some content

creators and others expressed concern

that the first three developments, taken

together, have systematically changed

the application of section 512, tipping it

in favor of ISPs,

while a number of

ISPs expressed concerns about the

ongoing impact of recent repeat

infringer jurisprudence.

One other debate between content

creators and ISPs relates to the fact that

section 512 sets forth a variety of

differing safe harbor requirements for

ISPs depending upon the function they

are performing (i.e., mere conduit,

hosting, caching, or indexing). Thus,

several telecommunications providers

asserted that section 512 imposes no

obligation on ISPs either to accept or act

upon infringement notices when they

are acting as a mere conduit under

section 512(a).

Some content creators,

however, expressed concern that failure

to accept such notices, even if not part

of a formal notice-and-takedown

process, would weaken the requirement

that ISPs adopt and reasonably

implement a section 512(i) repeat

infringer policy.

C. Potential Future Evolution of the

DMCA Safe Harbor System

Study participants have suggested a

number of potential solutions to the

issues raised above, though it should be

understood that these solutions stem

only from the subset of stakeholders

who suggest or acknowledge in the first

instance that the current regime requires

or could benefit from changes. These

solutions included both non-legislative

solutions (such as education, the use of

technology, or voluntary and standard

technical measures) and legislative fixes

(either through changes to section 512

itself or passage of legislation to address

issues not directly addressed by section

512).

The non-legislative solution that

appeared to have the broadest approval

was the idea of creating governmental

and private-sector educational materials

on copyright and section 512.

Participants recommended the creation

of targeted educational materials for all

participants in the Internet ecosystem,

including content creators,

users,

and ISPs.

A number of study participants noted

that technology can help address some

of the inefficiencies of the current

notice-and-takedown process. Some

participants cited increased efficiencies

to be had from both automated notices

and takedowns, as well as other

technological tools.

Other

participants, however, cautioned against

over reliance on technology. Several

reasons for questioning the ability of

technology to resolve problems with the

current system were mentioned,

including the expense of developing

systems capable of handling notice-and-

takedown processes, concerns that

automated processes may be more

vulnerable to false positives, and the

limited capabilities of even the most

advanced current technology.

Another potential non-legislative

solution that was suggested was the

development and adoption of industry-

wide, or sub-industry-specific,

voluntary measures

and standard

technical measures,

and/or the

standardization of practices for notice

and takedown.

A number of study

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Office’s Dec. 31, 2015 Notice of Inquiry at 5 (Mar.

21, 2016) (‘‘[T]he tools . . . used by online service

providers to prevent and stop infringement vary

widely. To address this problem, the U.S. Copyright

Office should launch a multi-stakeholder working

group to identify . . . [ways] to reduce infringement

and lower compliance costs for all parties. For

example .... standardize[d] notice-and-takedown

processes across multiple service providers . . . .’’);

Tr. at 164:12–165:13 (May 13, 2016) (Dave Green,

Microsoft) (suggesting a ‘‘summit attended

primarily by engineers,’’ potentially including

‘‘government support or encouragement . . . to

come up with ways to make it easy to report . . .

a single work to multiple ISPs without having to

send notices multiple times’’).

See, e.g., Tr. 68:22–69:12 (May 3, 2016) (Lisa

Willmer, Getty Images); Tr. 18:10–21:6 (May 13,

2016) (Karyn Temple Claggett, U.S. Copyright

Office; Keith Kupferschmid, Copyright All.).

See Tr. 250:23–251:1 (May 3, 2016) (Todd

Dupler, Recording Acad.).

See, e.g., Indep. Film & Television All.,

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 4 (Apr.

1, 2016); Tr. at 230:11–23 (May 3, 2016) (Matthew

Barblan, Ctr. for the Prot. of Intellectual Prop.).

See Council of Music Creators et al., Joint

Comments Submitted in Response to U.S. Copyright

Office’s Dec. 31, 2015 Notice of Inquiry at 3 (Apr.

1, 2016).

See Authors Guild, Inc., Comments Submitted

Notice of Inquiry at 14 (Apr. 1, 2016) (‘‘Here’s an

example of how ‘notice and stay-down’ might work

in practice: an author finds a pirated copy of her

book on Google Play, offered by a user who has

created an account called ‘Best Books.’. . . She

sends a notice to Google, with an image of the fake

cover and false publisher name, along with a URL

for the pirated copy. Google takes the copy down

a day later. The next day, the same book with the

same cover is reposted on the site. From then on,

Google should be required to automatically remove

any instance of the entire book that anyone other

than an authorized person (as provided by the

See, e.g., Facebook, Inc., Comments Submitted

Notice of Inquiry at 6 (Apr. 1, 2016); Internet

Archive, Comments Submitted in Response to U.S.

at 2 (Mar. 22, 2016).

BMG Rights Mgmt. (US) LLC v. Cox Commc’ns.,

Inc., No. 1:14–cv–1611, 2016 WL 4224964 (E.D. Va.

Aug. 8, 2016), appeal docketed, No. 16–1972 (4th

Cir. Aug. 24, 2016).

Id. at *4.

Capitol Records, LLC v. Vimeo, LLC, 826 F.3d

87–98 (2d Cir. 2016).

See, e.g., Ctr. for Democracy & Tech. & R Street

Inst., Joint Comments Submitted in Response to

Inquiry at 19 n.79 (Apr. 1, 2016); Tr. 114:24–115:6

(May 3, 2016) (Victoria Sheckler, Recording Indus.

Ass’n of Am.); Tr. 325:16–20 (May 12, 2016)

(Daphne Keller, Stanford Law Sch. Ctr. for Internet

& Soc’y).

See, e.g., Tr. at 255:11–12 (May 13, 2016) (Sean

O’Connor, Univ. of Washington (Seattle)) (‘‘[O]n the

empirical research side, I do think we need to do

a lot more . . . .’’); Tr. at 260:3–4 (May 13, 2016)

(Fred von Lohmann, Google, Inc.) (‘‘We need more

and better data.’’).

participants pointed to the failure to

adopt standard technical measures

under section 512(i), nearly two decades

after passage of the DMCA, as a

demonstrable failure of the current

section 512 system.

Some study

participants suggested that there may be

a role for the government generally, or

the U.S. Copyright Office in particular,

to play in encouraging or supporting the

adoption of such standard technical

measures by convening groups of

relevant stakeholders.

Another potential solution proposed

by some of the participants was

legislative action to improve the section

512 safe harbor system, either by

amending the statute itself, or adopting

ancillary legislative reform proposals.

The most frequently discussed potential

legislative change was adoption of a

notice-and-stay-down requirement.

Although many participants suggested a

pressing need for such a requirement,

they have not defined what is meant by

‘‘stay-down,’’ or what specific

mechanisms might be utilized to

comply with such a requirement. Some

participants equated a notice-and-stay-

down system with the use of a content

filtering system like Content ID to pre-

screen user uploads.

Other

participants seemed to equate a notice-

and-stay-down system with a

requirement for the ISP to search its site

for identical files upon receipt of a

takedown notice from a rightsholder.

Many study participants, however,

raised concerns about the possible

adoption of a notice-and-stay-down

requirement, citing both policy and

practical/technological concerns.

D. Other Developments

The Copyright Office is also seeking

comments on three additional topics:

judicial opinions that were not covered

by the initial round of public comments,

the disposition of Internet safe harbors

under foreign copyright laws, and

empirical research into the

effectiveness, impact, and utilization of

the current section 512 safe harbors.

The Copyright Office is interested in

hearing from the public about judicial

decisions issued since the first round of

public comments closed in April 2016,

and how they may impact the workings

of one or more aspects of the section 512

safe harbors. These include, in

particular, recent decisions from the

Eastern District of Virginia and the

Second Circuit. In BMG Rights

Management (US) v. Cox

Communications, Inc., currently on

appeal to the Fourth Circuit, the Eastern

District of Virginia upheld a jury verdict

that the defendant ISP was liable for

willful contributory infringement based

on its subscribers’ use of BitTorrent to

download and share copyrighted

material.

The court found that the

defendant was not able to invoke the

section 512(a) safe harbor as a result of

its failure to reasonably implement a

repeat infringer policy.

In Capitol

Records, LLC v. Vimeo LLC, the Second

Circuit found that (1) the section 512(c)

safe harbor extends to claims for

infringement of pre-1972 sound

recordings, which are protected under

state, rather than federal, copyright

laws, and (2) the fact that a defendant

ISP’s employee viewed a video that

‘‘contains all or virtually all of a

recognizable copyrighted song’’ is

insufficient to provide the ISP with

actual or red flag knowledge of

infringement.

Similarly, while some of the initial

written responses and roundtable

discussions touched upon Internet safe

harbor regimes outside the United

States,

the Copyright Office welcomes

additional information about foreign

approaches to the questions of ISP safe

harbors, Internet piracy, and other

relevant topics.

Finally, the Copyright Office is asking

for the submission of additional

analyses and empirical data related to

the effectiveness, impact, and utilization

of the current section 512 safe harbors.

While several participants referenced a

trio of recent studies performed by

researchers at the University of

California, Berkeley School of Law,

others noted that a nucleus of

authoritative studies and evidence is

still lacking, overall.

Given the

economic importance of both the

creative and technology industries to

the U.S. economy, policymaking

relating to the proper calibration of the

costs and benefits of ISP safe harbors

would benefit from a robust record of

authoritative data. Potential subject

matter for relevant submissions would

include data relating to the number of

improper takedown or counter-notices

received by different classes of ISPs,

information relating to the percentage of

files that are re-uploaded following

submission of a valid takedown notice,

information regarding the effectiveness

or ineffectiveness of takedown notices

for combating different forms of piracy

both here and abroad, the economic

impact of policy choices relating to ISP

safe harbors, and other topics.

II. Subjects of Inquiry

The Copyright Office seeks further

public input in the form of written

comments responsive to this Notice and

the issues discussed above, as well as

the submission of studies and empirical

data relevant to the subject matter of

this study. Parties may also take this

opportunity to respond to positions or

data raised in the first round of

comments and/or at the roundtables.

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Participants should, however, refrain

from simply restating positions taken at

the roundtables or previously submitted

in response to the First Notice; such

comments have already been made part

of the record. While a party choosing to

respond to this Notice of Inquiry need

not address every subject below, the

Office requests that responding parties

clearly identify and separately address

each subject for which a response is

submitted.

Characteristics of the Current Internet

Ecosystem

1. As noted above, there is great

diversity among the categories of

content creators and ISPs who comprise

the Internet ecosystem. How should any

improvements in the DMCA safe harbor

system account for these differences?

For example, should any potential new

measures, such as filtering or stay-

down, relate to the size of the ISP or

volume of online material hosted by it?

If so, how? Should efforts to improve

the accuracy of notices and counter-

notices take into account differences

between individual senders and

automated systems? If so, how?

2. Several commenters noted the

importance of taking into account the

perspectives and interests of individual

Internet users when considering any

changes to the operation of the DMCA

safe harbors. Are there specific issues

for which it is particularly important to

consult with or take into account the

perspective of individual users and the

general public? What are their interests,

and how should these interests be

factored into the operation of section

512?

Operation of the Current DMCA Safe

Harbor System

3. Participants expressed widely

divergent views on the overall

effectiveness of the DMCA safe harbor

system. How should the divergence in

views be considered by policy makers?

Is there a neutral way to measure how

effective the DMCA safe harbor regime

has been in achieving Congress’ twin

goals of supporting the growth of the

Internet while addressing the problem

of online piracy?

4. Several public comments and

roundtable participants noted practical

barriers to effective use of the notice-

and-takedown and counter-notice

processes, such as differences in the

web forms used by ISPs to receive

notices or adoption by ISPs of

additional requirements not imposed

under the DMCA (e.g., submission of a

certain web accounts). What are the

most significant practical barriers to use

of the notice-and-takedown and

counter-notice processes, and how can

those barriers best be addressed (e.g.,

incentives for ISPs to use a standardized

notice/counter-notice form, etc.)?

5. A number of study participants

identified the timelines under the

DMCA as a potential area in need of

reform. Some commenters expressed the

view that the process for restoring

access to material that was the subject

of a takedown notice takes too long,

noting that the material for which a

counter-notice is sent can ultimately be

inaccessible for weeks or months before

access is restored. Other commenters

expressed the view that the timeframe

for restoring access to content is too

short, and that ten days is not enough

time for a copyright holder to prepare

and file litigation following receipt of a

counter-notice. Are changes to the

section 512 timeline needed? If so, what

timeframes for each stage of the process

would best facilitate the dual goals of

encouraging online speech while

protecting copyright holders from

widespread online piracy?

6. Participants also noted

disincentives to filing both notices and

counter-notices, such as safety and

privacy concerns, intimidating

language, or potential legal costs. How

do these concerns affect use of the

notice-and-takedown and counter-notice

processes, and how can these

disincentives best be addressed?

7. Some participants recommended

that the penalties under section 512 for

filing false or abusive notices or

counter-notices be strengthened. How

could such penalties be strengthened?

Would the benefits of such a change

outweigh the risk of dissuading notices

or counter-notices that might be socially

beneficial?

8. For ISPs acting as conduits under

section 512(a), what notice or finding

should be necessary to trigger a repeat

infringer policy? Are there policy or

other reasons for adopting different

requirements for repeat infringer

policies when an ISP is acting as a

conduit, rather than engaging in

caching, hosting, or indexing functions?

Potential Future Evolution of the DMCA

Safe Harbor System

9. Many participants supported

increasing education about copyright

law generally, and/or the DMCA safe

harbor system specifically, as a non-

legislative way to improve the

functioning of section 512. What types

of educational resources would improve

the functioning of section 512? What

steps should the U.S. Copyright Office

take in this area? Is there any role for

legislation?

10. How can the adoption of

additional voluntary measures be

encouraged or incentivized? What role,

if any, should government play in the

development and implementation of

future voluntary measures?

11. Several study participants pointed

out that, since passage of the DMCA, no

standard technical measures have been

adopted pursuant to section 512(i).

Should industry-wide or sub-industry-

specific standard technical measures be

adopted? If so, is there a role for

government to help encourage the

adoption of standard technical

measures? Is legislative or other change

required?

12. Several study participants have

proposed some version of a notice-and-

stay-down system. Is such a system

advisable? Please describe in specific

detail how such a system should

operate, and include potential

legislative language, if appropriate. If it

is not advisable, what particular

problems would such a system impose?

Are there ways to mitigate or avoid

those problems? What implications, if

any, would such as system have for

future online innovation and content

creation?

13. What other specific legislative

provisions or amendments could

improve the overall functioning of the

DMCA safe harbor regime? Please be

specific, including proposed statutory

language as appropriate.

Other Developments

14. Several study participants

mentioned concerns regarding certain

case law interpretations of the existing

provisions of section 512. Additionally,

two new judicial decisions have come

out since the first round of public

comments was submitted in April 2016.

What is the impact, if any, of these

decisions on the effectiveness of section

512? If you believe it would be

appropriate to address or clarify existing

provisions of section 512, what would

be the best ways to address such

provisions (i.e., through the courts,

Congress, the Copyright Office, and/or

voluntary measures)? Please provide

specific recommendations, such as

legislative language, if appropriate.

15. What approaches have

jurisdictions outside the United States

taken to address the question of ISP

liability and the problem of copyright

infringement on the Internet? To what

extent have these approaches worked

well, or created problems for

consumers, content creators, ISPs, or

other stakeholders?

16. Please identify any other pertinent

issues that the Copyright Office may

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wish to consider in conducting this

study.

Submission of Empirical Research To

Aid the Study

Many commenters expressed a desire

for more comprehensive empirical data

regarding the functioning and effects of

the DMCA safe harbor system. The

extended deadline for submissions of

empirical research on any of the topics

discussed in this Notice, or other topics

that are likely to provide useful data to

assess and/or improve the operation of

section 512.

Dated: November 2, 2016.

Karyn Temple Claggett,

Acting Register of Copyrights and Director

of the U.S. Copyright Office.

[FR Doc. 2016–26904 Filed 11–7–16; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL ARCHIVES AND RECORDS

ADMINISTRATION

[NARA–2017–005]

George W. Bush Presidential Library;

Disposal of Presidential Records

AGENCY

: National Archives and Records

Administration (NARA).

ACTION

: Notice of proposed disposal of

Presidential records; request for public

comment.

SUMMARY

: The National Archives and

Records Administration (NARA) has

identified certain Presidential records

from the George W. Bush Presidential

Library as appropriate for disposal

under the provisions of 44 U.S.C.

2203(f)(3). This notice describes our

reasons for determining that these

records do not warrant retaining any

longer.

This notice does not constitute a final

agency action, as described in 44 U.S.C.

2203(f)(3), and we will not dispose of

any Presidential records following this

notice. After reviewing any comments

we receive during this 45-day notice

and comment period, we will make a

decision on the records. If we decide to

dispose of them, we will issue a second,

60-day advance notice, which

constitutes a final agency action.

DATES

: Comments are due by December

23, 2016.

LOCATION

: Submit written comments by

mail to Director, Presidential Libraries;

National Archives and Records

Administration (LP), Suite 2200; 8601

Adelphi Road; College Park, MD 20740–

6001, or by fax to 301.837.3199.

FOR FURTHER INFORMATION CONTACT

Susan K. Donius at 301.837.3250.

SUPPLEMENTARY INFORMATION

: We

propose the following materials for

disposal because we have determined

that they lack continuing

administrative, historical, information,

or evidentiary value.

The items identified include (full list

below) ephemera located within the

Staff Member Office Files and White

House Office of Records Management

Subject/Alpha Files of the George W.

Bush Presidential Library:

NASA Pin

Connecting to Collections Black

Shoulder Bag

Metal Edge, Inc. Mini Hollinger

IMLS Level and Tape Measurer

White Cotton Gloves

Faith Bottle

Indian River Community College

Educational Program

Honor Cats Banners

Dated: October 25, 2016.

Susan K. Donius,

Director, Office of Presidential Libraries.

[FR Doc. 2016–26952 Filed 11–7–16; 8:45 am]

BILLING CODE 7515–01–P

THE NATIONAL FOUNDATION FOR

THE ARTS AND THE HUMANITIES

Institute of Museum and Library

Services

Notice of Proposed Information

Collection Request: Community

Catalyst: The Role of Libraries and

Museums in Community

Transformation (Community

Catalyst)—A National Leadership

Grants Special Initiative

AGENCY

: Institute of Museum and

Library Services, National Foundation

for the Arts and the Humanities.

ACTION

: Notice, request for comments,

collection of information.

SUMMARY

: The Institute of Museum and

Library Service (‘‘IMLS’’) as part of its

continuing effort to reduce paperwork

and respondent burden, conducts a pre-

clearance consultation program to

provide the general public and federal

agencies with an opportunity to

comment on proposed and/or

continuing collections of information in

accordance with the Paperwork

Reduction Act (44 U.S.C. 3501 et seq.).

This pre-clearance consultation program

helps to ensure that requested data can

be provided in the desired format,

reporting burden (time and financial

resources) is minimized, collection

instruments are clearly understood, and

the impact of collection requirements on

respondents can be properly assessed.

The purpose of this Notice is to solicit

comments concerning The Role of

Libraries and Museums in Community

Transformation (Community Catalyst)—

A National Leadership Grants Special

Initiative.

A copy of the proposed information

collection request can be obtained by

contacting the individual listed below

in the

ADDRESSES

section of this notice.

DATES

: Written comments must be

submitted to the office listed in the

ADDRESSES

section below on or before

January 5, 2017.

The IMLS is particularly interested in

comments which:

• Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

• Evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information,

including the validity of the

methodology and assumptions used;

• Enhance the quality, utility, and

clarity of the information to be

collected; and

• Minimize the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submission of

responses.

ADDRESSES

: For a copy of the documents

contact: Dr. Marvin Carr, Senior

Advisor, STEM and Community

Engagement, Institute of Museum and

Library Services, 955 L’Enfant Plaza

North SW., Suite 4000, Washington, DC

20024. Dr. Carr can be reached by

telephone: 202–653–4752; fax: 202–

653–4603; email: [email protected] or by

teletype (TTY/TDD) for persons with

hearing difficulty at 202–653–4614.

SUPPLEMENTARY INFORMATION

I. Background

The Institute of Museum and Library

Services is the primary source of federal

support for the Nation’s 123,000

libraries and 35,000 museums. The

Institute’s mission is to inspire libraries

and museums to advance innovation,

learning and civic engagement. We

provide leadership through research,

policy development, and grant making.

IMLS provides a variety of grant

programs to assist the Nation’s

museums and libraries in improving

their operations and enhancing their

services to the public. (20 U.S.C. 9101

et seq.).

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8629

Federal Register / Vol. 82, No. 17 / Friday, January 27, 2017 / Notices

See Section 512 Study: Notice and Request for

Public Comment, 80 FR 81682 (Dec. 31, 2015).

See Section 512 Study: Request for Additional

Comments, 81 FR 78636 (Nov. 8, 2016).

page reproduction cost) payable to the

United States Treasury.

Robert E. Maher Jr.,

Assistant Chief, Environmental Enforcement

Section, Environment and Natural Resources

Division.

[FR Doc. 2017–01848 Filed 1–26–17; 8:45 am]

BILLING CODE 4410–15–P

LIBRARY OF CONGRESS

U.S. Copyright Office

[Docket No. 2015–7]

Section 512 Study: Extension of

Comment Period

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Extension of comment period.

SUMMARY

: The United States Copyright

Office is extending the deadlines for the

submission of written comments and

empirical research studies in response

to its November 8, 2016 request for

additional comments (‘‘Second Notice’’)

regarding the Digital Millennium

provisions contained in 17 U.S.C. 512.

DATES

: Written responses to the

questions outlined in the Second Notice

are now due no later than 11:59 p.m.

Eastern Time on February 21, 2017.

Empirical research studies are due no

later than 11:59 p.m. Eastern Time on

March 22, 2017.

ADDRESSES

: For reasons of government

efficiency, the Copyright Office is using

the regulations.gov system for the

submission and posting of public

comments in this proceeding. All

comments are therefore to be submitted

electronically through regulations.gov.

Specific instructions for submitting

comments are available on the

comment-submission/. If electronic

submission of comments is not feasible

due to lack of access to a computer and/

or the Internet, please contact the Office,

using the contact information below, for

special instructions.

FOR FURTHER INFORMATION CONTACT

Cindy Abramson, Assistant General

Counsel, by email at [email protected] or by

telephone at 202–707–8350; Kevin

Amer, Senior Counsel for Policy and

International Affairs, by email at

[email protected] or by telephone at 202–

707–8350; or Kimberley Isbell, Senior

Counsel for Policy and International

Affairs, by email at [email protected] or by

telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

: The

United States Copyright Office is

conducting a study to evaluate the

impact and effectiveness of the DMCA

safe harbor provisions contained in 17

U.S.C. 512. The Office published an

initial Notice of Inquiry on December

31, 2015, seeking written comments to

thirty questions covering eight

categories of topics.

After receiving

more than 92,000 responses and holding

public roundtables, the Office published

a Second Notice on November 8, 2016.

The Second Notice sought responses to

sixteen additional questions and also

invited parties to submit empirical

research studies assessing issues related

to the operation of the safe harbor

provisions on a quantitative or

qualitative basis. To ensure that

commenters have sufficient time to

respond, the Office is extending the

deadline for submission of comments in

response to the questions provided in

the Second Notice to February 21, 2017,

at 11:59 p.m. Eastern Time, and the

deadline for submission of empirical

research studies to March 22, 2017, at

11:59 p.m. Eastern Time. Please note

that in light of the expected time frame

for this study, the Office is unlikely to

grant further extensions for these

submissions.

Dated: January 24, 2017.

Karyn Temple Claggett

Acting Register of Copyrights and Director

of the U.S. Copyright Office.

[FR Doc. 2017–01888 Filed 1–26–17; 8:45 am]

BILLING CODE 1410–30–P

NATIONAL FOUNDATION ON THE

ARTS AND THE HUMANITIES

Federal Council on the Arts and the

Humanities; Arts and Artifacts

Indemnity Panel Advisory Committee

AGENCY

: National Foundation on the

Arts and the Humanities.

ACTION

: Notice of meeting.

SUMMARY

: Pursuant to the Federal

Advisory Committee Act, notice is

hereby given that the Federal Council

on the Arts and the Humanities will

hold a meeting of the Arts and Artifacts

Domestic Indemnity Panel.

DATES

: The meeting will be held on

Tuesday, February 21, 2017, from 2:00

p.m. to 5:00 p.m.

ADDRESSES

: The meeting will be held by

teleconference originating at the

National Endowment for the Arts,

Washington, DC 20506.

FOR FURTHER INFORMATION CONTACT

Elizabeth Voyatzis, Committee

Management Officer, 400 7th Street

SW., Room 4060, Washington, DC

20506, (202) 606 8322; evoyatzis@

neh.gov.

SUPPLEMENTARY INFORMATION

: The

purpose of the meeting is for panel

review, discussion, evaluation, and

recommendation on applications for

Certificates of Indemnity submitted to

the Federal Council on the Arts and the

Humanities, for exhibitions beginning

on or after April 1, 2017. Because the

meeting will consider proprietary

financial and commercial data provided

in confidence by indemnity applicants,

and material that is likely to disclose

trade secrets or other privileged or

confidential information, and because it

is important to keep the values of

objects to be indemnified, and the

methods of transportation and security

measures confidential, I have

determined that that the meeting will be

closed to the public pursuant to

subsection (c)(4) of section 552b of Title

5, United States Code. I have made this

determination under the authority

granted me by the Chairman’s

Delegation of Authority to Close

Advisory Committee Meetings, dated

April 15, 2016.

Dated: January 23, 2017.

Elizabeth Voyatzis,

Committee Management Officer.

[FR Doc. 2017–01849 Filed 1–26–17; 8:45 am]

BILLING CODE 7536–01–P

NATIONAL SCIENCE FOUNDATION

Proposal Review Panel for

Environmental Biology; Notice of

Meeting

In accordance with the Federal

Advisory Committee Act (Pub. L. 92–

463, as amended), the National Science

Foundation (NSF) announces the

following meeting:

Name and Committee Code: Proposal

Review Panel for Environmental Biology—

Mid-term Site Review of Luquillo LTER

(#10744)—Site Visit.

Dates and Times: March 29–31, 2017; 8

a.m.–5 p.m.

Place: Luquillo LTER, University of Puerto

Rico, Km 19.5, Hwy PR–186, 00745, Puerto

Rico.

Type of Meeting: Closed.

Contact Person: Louis Kaplan, Division of

Environmental Biology, National Science

Foundation, 4201 Wilson Blvd., Arlington,

VA 22230. Phone 703–292–7187.

Purpose of Meeting: Formal mid-term

review of the Luquillo LTER research

program.

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1233

Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices

See Section 512 Study: Notice and Request for

Public Comment, 80 FR 81862 (Dec. 31, 2015).

obtained by contacting the office listed

below in the

ADDRESSES

section of this

Notice.

DATES

: Written comments must be

submitted to the office listed in the

ADDRESSES

section below on or before

April 2, 2019.

ADDRESSES

: You may submit comments

by mail, delivery service, or by hand to

Ms. Yoon Ferguson, U.S. Department of

Labor, 200 Constitution Ave. NW, Room

S–3323, Washington, DC 20210; by fax

(202) 354–9647; or email to

[email protected]. Please use only

one method of transmission for

comments (mail/delivery, fax or email).

Please note that comments submitted

after the comment period will not be

considered.

SUPPLEMENTARY INFORMATION

I. Background: The Office of Workers’

Compensation Programs (OWCP) is the

agency responsible for administration of

the Federal Employees’ Compensation

Act (FECA), 5 U.S.C. 8101 et seq., the

Black Lung Benefits Act (BLBA), 30

U.S.C. 901 et seq., and the Energy

Employees Occupational Illness

Compensation Program Act of 2000

(EEOICPA), 42 U.S.C. 7384 et seq. This

information collection is used by OWCP

examiners to ascertain the financial

condition of the beneficiary to

determine if the overpayment or any

part can be recovered; to identify the

possible concealment or improper

transfer of assets; and to identify and

consider present and potential income

and current assets for enforced

collection proceedings. The

questionnaire provides a means for the

beneficiary to explain why he/she is

without fault in an overpayment matter.

If this information were not collected

BLBA, EEOICPA and FECA would have

little basis to determine appropriate

collection proceedings. This

information collection is currently

approved for use through April 30,

2019.

II. Review Focus: The Department of

Labor is particularly interested in

comments which:

* Evaluate whether the proposed

collection of information is necessary

for the proper performance of the

functions of the agency, including

whether the information will have

practical utility;

* evaluate the accuracy of the

agency’s estimate of the burden of the

proposed collection of information,

including the validity of the

methodology and assumptions used;

* enhance the quality, utility and

clarity of the information to be

collected; and

* minimize the burden of the

collection of information on those who

are to respond, including through the

use of appropriate automated,

electronic, mechanical, or other

technological collection techniques or

other forms of information technology,

e.g., permitting electronic submissions

of responses.

III. Current Actions: The Department

of Labor seeks the approval of the

extension of this currently approved

information collection in order to

determine whether or not the recovery

of any BLBA, EEOICPA or FECA

overpayments may be waived,

compromised, terminated, or collected

in full.

Type of Review: Extension.

Agency: Office of Workers’

Compensation Programs.

Title: Overpayment Recovery

Questionnaire.

OMB Number: 1240–0051.

Agency Number: OWCP–20.

Affected Public: Individuals and

households.

Total Respondents: 1,894.

Total Responses: 1,894.

Time per Response: 1 hour.

Estimated Total Burden Hours: 1,894.

Total Burden Cost (capital/startup):

$0.

Total Burden Cost (operating/

maintenance): $1,003.

Comments submitted in response to

this notice will be summarized and/or

included in the request for Office of

Management and Budget approval of the

information collection request; they will

also become a matter of public record.

Dated: January 28, 2019.

Yoon Ferguson,

Agency Clearance Officer, Office of Workers’

Compensation Programs, U.S. Department of

Labor.

[FR Doc. 2019–00614 Filed 1–31–19; 8:45 am]

BILLING CODE 4510–CR–P

LIBRARY OF CONGRESS

[Docket No. 2015–7]

Section 512 Study: Announcement of

Public Roundtable

AGENCY

: U.S. Copyright Office, Library

of Congress.

ACTION

: Notice of public roundtable.

SUMMARY

: The U.S. Copyright Office is

conducting a study to evaluate the

impact and effectiveness of the

for online service providers. At this

time, the Office is announcing that it

will hold a one-day public roundtable to

allow interested members of the public

to address relevant domestic and

international developments that have

occurred since the close of the written

comment period on February 6, 2017.

The roundtable is not intended to allow

participants to supplement the record

with respect to events occurring before

that date, and discussion will be limited

to the specific topics set forth in this

notice.

DATES

: The public roundtable will be

held on April 8, 2019 from 9:00 a.m. to

approximately 5:00 p.m.

ADDRESSES

: Library of Congress

Madison Building, 101 Independence

Avenue SE, Washington, DC 20540.

FOR FURTHER INFORMATION CONTACT

Cindy Abramson, Assistant General

Counsel, at [email protected]; Kevin

Amer, Senior Counsel for Policy and

International Affairs, at kamer@

Senior Counsel for Policy and

International Affairs, at kisb@

telephone at 202–707–8350.

SUPPLEMENTARY INFORMATION

I. Background

Enacted in 1998 as part of the Digital

Millennium Copyright Act (‘‘DMCA’’),

section 512 of Title 17 provides a

system for copyright owners and

internet service providers to address

online infringement outside the context

of litigation. This system includes a

series of ‘‘safe harbors’’ through which

an eligible service provider can limit its

liability for copyright infringement by

complying with certain requirements,

generally consisting of implementing

measures to expeditiously address

online infringement.

At Congress’s request, the U.S.

to assess the impact and effectiveness of

section 512. The Office published an

initial Notice of Inquiry on December

31, 2015, seeking written comments to

thirty questions covering eight

categories of topics.

The Office

received over 92,000 written

submissions in response. Subsequently,

in May 2016, the Office held two-day

public roundtables in New York and

San Francisco. The Office published a

second Notice of Inquiry on November

8, 2016, seeking written comments to

sixteen questions covering four topics,

in addition to inviting the submission of

empirical research studies assessing the

operation of the safe harbor provisions

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1234

Federal Register / Vol. 84, No. 22 / Friday, February 1, 2019 / Notices

See Section 512 Study: Request for Additional

Comments, 81 FR 78636 (Nov. 8, 2016).

BMG Rights Mgmt. (US) LLC v. Cox Commc’ns,

Inc., 881 F.3d 293, 303–05 (4th Cir. 2018).

Mavrix Photographs LLC v. LiveJournal Inc., 873

F.3d 1045, 1054–57 (9th Cir. 2017).

Proposal for a Directive of the European

Parliament and of the Council on Copyright in the

Digital Single Market, COM(2016) 593 final (Sept.

14, 2016).

Amendments Adopted by the European

Parliament on 12 September 2018 on the Proposal

for a Directive of the European Parliament and of

the Council on Copyright in the Digital Single

Market, P8_TA–PROV(2018)0337, art. 2, ¶ 1, pt. 4b;

art. 13 (Sept. 12, 2018).

A trilogue meeting scheduled for January 21,

2019 was postponed as proposed compromise text

was rejected by several countries. See, e.g., Samuel

Stolton, Copyright directive faces further setback as

final trilogue postponed, EURACTIV (Jan. 21, 2019)

https://www.euractiv.com/section/digital/news/

trilogue-cancelled/.

Explanatory Memorandum, Copyright

Amendment (Online Infringement) Bill 2018.

(Austl.), https://parlinfo.aph.gov.au/parlInfo/

search/display/

display.w3p;query=Id:%22legislation/ems/r6209_

ems_b5e338b6-e85c-4cf7-8037-35f13166ebd4%22.

on a quantitative or qualitative basis.

The Office received seventy-nine

written comments and nine empirical

studies in response. Information about

the study, including the Notices of

Inquiry, public comments, and

transcripts of the public roundtables,

may be accessed on the Copyright Office

website at https://www.copyright.gov/

policy/section512/.

The Office is now announcing that it

will convene an additional roundtable

to enable interested members of the

public to address relevant domestic and

foreign developments that have

occurred since the close of the written

comment period on February 6, 2017.

Specifically, the roundtable will

consider the following topics: (1) Recent

domestic case law interpreting

provisions of the DMCA safe harbor

framework and (2) recent international

legal and policy developments related to

addressing liability for infringing

content online.

Recent domestic case law has

addressed various aspects of section

512. For example, in BMG Rights

Management (US) LLC v. Cox

Communications, Inc., the U.S. Court of

Appeals for the Fourth Circuit

considered whether Cox reasonably

implemented its repeat infringer policy

for purposes of section 512(a). The court

held that Cox failed to implement its

policy in ‘‘any consistent or meaningful

way—leaving it essentially with no

policy’’—and thus could not qualify for

the section 512(a) safe harbor.

Additionally, the U.S. Court of Appeals

for the Ninth Circuit in Mavrix

Photographs LLC v. LiveJournal Inc.

held that there were genuine issues of

material fact as to whether volunteer

moderators who reviewed user-

submitted content were agents of the

service provider—an issue relevant to

the provider’s eligibility for the safe

harbor protection under section 512(c).

Participants may discuss these cases as

well as other recent domestic case law

developments during the roundtable.

The Office previously identified case

law as a key issue in this study and is

interested in stakeholder views as to

whether recent cases indicate any

emerging trends.

Since 2017, several other countries

also have addressed issues of copyright

infringement and online service

provider liability. For example, in

Europe, work towards a possible new

Directive on Copyright in the Digital

Single Market has been underway since

2016.

In September 2018, the European

Parliament voted to approve a proposed

Directive on Copyright in the Digital

Single Market that, among other

changes, would establish new

obligations for online service providers

that store and give public access to

copyrighted works uploaded by users

and that optimize and promote such

works for profit-making purposes.

Further negotiations on the text via a

‘‘trilogue’’ process of negotiations

between the European Commission, the

European Parliament, and the Council

of the European Union, are underway.

In addition, the Australian Parliament

recently passed an amendment to its

owners with additional tools to enforce

their rights regarding infringing content

online, including injunctions to block

domain names.

The Office is aware that

such proposals have generated

widespread debate, with stakeholders

expressing a variety of views concerning

the potential implications for copyright

owners, online service providers, and

members of the public. At the

roundtable, participants are invited to

identify and discuss recent law and

policy developments in other countries

that bear on issues related to the

effectiveness, ineffectiveness, and/or

other impacts on online service provider

liability.

II. Roundtable Subjects of Inquiry

The public roundtable will consist of

two sessions: (1) Domestic case law

developments since 2017 interpreting

the section 512 safe harbors and (2)

international legal and policy

developments since 2017 relating to

online service provider liability. The

roundtable is not intended as an

opportunity to supplement the written

record with respect to matters outside

these categories, and discussion will be

limited to developments that have

occurred after the close of the written

comment period on February 6, 2017.

The Copyright Office will not accept

any written materials prior to or on the

day of the roundtable. The sessions will

be video recorded and transcribed, and

copies of the recording and transcript

will be made available on the Copyright

Office website.

Members of the public who seek to

participate in the roundtable should

complete and submit the form available

on the Copyright Office website at

https://www.copyright.gov/policy/

section512/ no later than March 15,

2019. If you are unable to access a

computer or the internet, please contact

the Office using the contact information

above for special instructions.

Individuals selected for participation

will be notified directly by the Office

not later than March 29, 2019. In order

to accommodate the expected level of

interest, the Office expects to assign no

more than one representative per

organization to each session.

The roundtable hearing room will

have a limited number of seats for

participants and observers. For persons

who wish to observe one or more of the

roundtable sessions, the Office will

provide public seating on a first-come,

first-served basis on the day of the

roundtable.

Dated: January 28, 2019.

Regan A. Smith,

General Counsel and Associate Register of

Copyrights.

[FR Doc. 2019–00573 Filed 1–31–19; 8:45 am]

BILLING CODE 1410–30–P

LIBRARY OF CONGRESS

[Docket No. 18–CRB–0015–AU (Educational

Media Foundation)]

Notice of Intent To Audit

AGENCY

: Copyright Royalty Board (CRB),

Library of Congress.

ACTION

: Public notice.

SUMMARY

: The Copyright Royalty Judges

announce receipt of a notice of intent to

audit the 2015, 2016, and 2017

statements of account submitted by

noncommercial webcaster Educational

Media Foundation concerning royalty

payments it made pursuant to a

statutory license.

ADDRESSES

: Docket: For access to the

docket to read background documents,

go to eCRB, the Copyright Royalty

Board’s electronic filing and case

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Section 512 of title 17

u.S. copyright office

appendix B section 512 study

roundtable agendas:

new york, california,

and washington, dc

Monday, May 2, 2016

9:00 – 10:30 AM

SESSION 1

Notice-and-Takedown Process—

Identification of Infringing Material

and Notice Submission

Overall effectiveness of process, including issues

relating to timing and linked content; volume of

notices; burdens on large- and small-scale creators

and copyright owners; considerations and strategies

in sending notices, including automated notices

versus human review; fair use considerations;

moral rights issues; “whack-a-mole” issue; relevant

empirical data; and other pertinent issues.

Sandra Aistars Arts and Entertainment Advocacy Clinic,

George Mason University School of Law

Jonathan Band Amazon

Richard Burgess American Association of Independent Music

Stephen Carlisle Nova Southeastern University

Alisa Coleman ABKCO Music & Records, Inc.

Patrick Flaherty Verizon

Kathy Garmezy Directors Guild of America

Melvin Gibbs Content Creators Coalition

Lisa Hammer Independent Film Director

George Johnson Geo Music Group

David Kaplan Warner Brothers Entertainment Inc.

Natalie Madaj National Music Publishers’ Association

Michael Michaud Channel Awesome, Inc.

Eugene Mopsik American Photographic Artists

Janice Pilch Rutgers University Libraries

Deborah Robinson Viacom

Steven Rosenthal McGraw-Hill Education

Maria Schneider Musician

Samantha Schonfeld Amplify Education Holding

Ellen Schrantz Internet Association

Lisa Shaftel Graphic Artists Guild

Victoria Sheckler Recording Industry Association of America

Kate Viar* Amazon

* Not present for panel

10:30 – 10:45 AM BREAK

10:45 AM – 12:15 PM

SESSION 2

Notice-and-Takedown Process—

Service Provider Response and

Counter-Notifications

Handling of and response to notices, including timing

and notices from high-volume senders; sending and

handling of counter-notifications; volume of notices

and counter-notifications; costs and burdens on

large- and small-scale service providers; role of

automation, including filtering technologies;

noncompliant notices and misuse of notice process;

rejection of notices; impact of takedowns on users

and public; protections for fair use; relevant

empirical data; and other pertinent issues.

Perry Bashkoff WEA Digital & Revenue Development

Rhonda Blakey* BMG Rights Management

Andrew Bridges Fenwick & West LLP

Kate Dean* U.S. Internet Service Provider Association

Damon DiMarco Author

Adrienne Fields Artists Rights Society

Elizabeth

Townsend Gard* Tulane University Law School

Michael Housley Viacom

Hillary Johnson Author

Marcie Kaufman Ithaka/Artstor

Thomas Kennedy American Society of Media Photographers

Mickey Osterreicher National Press Photographers Association

Marc Ostrow Law Offices of Marc D. Ostrow

Jennifer Pariser Motion Picture Association of America

Rebecca Prince Becky Boop

Jay Rosenthal ESL Music/ESL Music Publishing

Kevin Rupy USTelecom

Brianna Schofield University of California-Berkeley School of Law

Kerry Sheehan Public Knowledge

Rebecca Tushnet Organization for Transformative Works

Michael Weinberg Shapeways

Charlyn Zlotnik Photographer

*Not present for panel

12:15 – 1:30 PM LUNCH (ON YOUR OWN)

1:30 – 3:00 PM

SESSION 3

Applicable Legal Standards

Actual and “red flag” knowledge requirements;

financial benefit/right to control test; willful

blindness; repeat infringers; good-faith

requirements; misrepresentation; fair use; use

of representative lists; availability of injunctive

relief; use of subpoenas; role of “standard technical

measures”; and other pertinent issues.

Allan Adler Association of American Publishers

Todd Anten Quinn Emanuel Urquhart & Sullivan LLP

Jonathan Band Library Copyright Alliance

June Besek Kernochan Center for Law, Media and the Arts,

Columbia Law School

Sarah Deutsch Mayer Brown

Joseph DiMona Broadcast Music, Inc.

Troy Dow Disney

Jim Halpert DLA Piper

Terry Hart Copyright Alliance

David Jacoby Sony Music Entertainment

George Johnson Geo Music Group

Bruce Joseph Wiley Rein LLP

Marcie Kaufman Ithaka/Artstor

Christopher Mohr Software & Information Industry Association

Marc Ostrow Law Offices of Marc D. Ostrow

Michael Petricone Consumer Technology Association

Rebecca Prince Becky Boop

Mary Rasenberger Authors Guild

Samantha Schonfeld Amplify Education Holding

Kerry Sheehan Public Knowledge

3:00 – 3:15 PM BREAK

3:15 – 4: 45 PM

SESSION 4

Scope and Impact of Safe Harbors

Scope of entities and activities covered by safe

harbors; incentives (and disincentives) for

creators, copyright owners, online providers,

investors, and users; impact on licensing

activities; effectiveness of remedies, including

ability to proceed in federal court in case of

disputed notice or misrepresentation; economic

impact on creators, copyright owners, service

providers and copyrighted works; relevant

empirical data; and other pertinent issues.

Allan Adler Association of American Publishers

Sandra Aistars Arts and Entertainment Advocacy Clinic,

George Mason University School of Law

Matthew Barblan Center for the Protection of Intellectual Property

Rhonda Blakey* BMG Rights Management

Sarah Deutsch Mayer Brown

Joseph DiMona Broadcast Music, Inc.

Troy Dow Disney

Sarah Feingold Etsy, Inc.

Adrienne Fields Artists Rights Society

Patrick Flaherty Verizon

David Korzenik* Miller Korzenik Sommers Rayman LLP

Natalie Madaj National Music Publishers’ Association

Michael Petricone Consumer Technology Association

Maria Schneider Musician

Ellen Schrantz Internet Association

Matthew Schruers Computer & Communications Industry

Association

Rebecca Tushnet Organization for Transformative Works

Jeff Walker Sony Music Entertainment

Michael Weinberg Shapeways

Lisa Willmer Getty Images

*Not present for panel

Tuesday, May 3, 2016

9:00 – 10:30 AM

SESSION 5

Technological Strategies

and Solutions

Infringement monitoring tools and services;

automated sending of notices, including notice

parameters; automated processing of notices; role

of human review; identification of works through

fingerprinting, hash identifiers, and other

technologies; filtering, including “staydown”

capabilities; fair use considerations; identification

and tracking of repeat infringers; and other

pertinent issues.

Jonathan Band Library Copyright Alliance

Sofia Castillo Association of American Publishers

Elizabeth

Townsend Gard* Tulane University Law School

Jim Halpert DLA Piper

Michael Housley Viacom

Sarah Howes Copyright Alliance

David Kaplan Warner Brothers Entertainment Inc.

Eugene Mopsik American Photographic Artists

Michael Petricone Consumer Technology Association

Casey Rae Future of Music Coalition

Steven Rosenthal McGraw-Hill Education

Maria Schneider Musician

Brianna Schofield University of California-Berkeley School of Law

Matthew Schruers Computer & Communications Industry

Association

Lisa Shaftel Graphic Artists Guild

Victoria Sheckler Recording Industry Association of America

Howie Singer Warner Music Group

Kate Viar* Amazon

Lisa Willmer Getty Images

Nancy Wolff Digital Media Licensing Association

* Not present for panel

10:30 – 10:45 AM BREAK

10:45 AM – 12:15 PM

SESSION 6

Voluntary Measures and Industry

Agreements

Voluntary alternatives to and modifications of

statutory notice-and-takedown process; best

practices; collaborative efforts of content owners,

service providers and others to address online

infringement, including availability of programs to

smaller service providers and creators; cooperation

in identifying infringers; graduated response

programs to address infringement; efforts to delist

or downgrade infringing materials within online

search results; participation of third-party providers,

such as advertisers and payment processors, in

voluntary arrangements; overall effectiveness of

voluntary arrangements; educational outreach;

government role in encouraging private solutions;

and other pertinent issues.

Jonathan Band Library Copyright Alliance

Gregory Barnes Digital Media Association

Kate Dean* U.S. Internet Service Provider Association

Troy Dow Disney

John Garry Pearson Education

Melvin Gibbs Content Creators Coalition

Terry Hart Copyright Alliance

Wayne Josel American Society of Composers, Authors

and Publishers

Thomas Kennedy American Society of Media Photographers

Lee Knife* Digital Media Association

Jennifer Pariser Motion Picture Association of America

Michael Petricone Consumer Technology Association

Janice Pilch Rutgers University Libraries

Casey Rae Future of Music Coalition

Mary Rasenberger Authors Guild

Maria Schneider Musician

Victoria Sheckler Recording Industry Association of America

Kerry Sheehan Public Knowledge

Lui Simpson Association of American Publishers

Rebecca Tushnet Organization for Transformative Works

Nancy Wolff Digital Media Licensing Association

* Not present for panel

12:15 – 1:30 PM LUNCH (ON YOUR OWN)

1:30 – 3:00 PM

SESSION 7

Future of Section 512

General trends, including notice volume and other

relevant empirical data; scalability and future

viability of section 512 notice-and-takedown system;

relevant technological developments; impact of

international models and norms; overall balance (or

imbalance) of system with respect to copyright

owners, service providers, and consumers; whether

system is fulfilling Congress’ intended objectives;

suggested improvements, including “notice-and-

staydown” and enhanced protections against misuse

of takedown process; interests of users and the

general public; and other pertinent issues.

Matthew Barblan Center for the Protection of Intellectual Property

Jonathan Band Amazon

June Besek Kernochan Center for Law, Media and the Arts,

Columbia Law School

William Buckley FarePlay, Inc.

Stephen Carlisle Nova Southeastern University

Alisa Coleman ABKCO Music & Records, Inc.

Sarah Feingold Etsy, Inc.

Kathy Garmezy Directors Guild of America

John Garry Pearson Education

Jim Halpert DLA Piper

Bruce Joseph Wiley Rein LLP

Thomas Kennedy American Society of Media Photographers

David Korzenik Miller Korzenik Sommers Rayman LLP

Dina LaPolt LaPolt Law, PC

Michael Michaud Channel Awesome, Inc.

Christopher Mohr Software & Information Industry Association

Mickey Osterreicher National Press Photographers Association

Janice Pilch Rutgers University Libraries

Kevin Rupy USTelecom

Darius Van Arman American Association of Independent Music

Kate Viar* Amazon

* Not present for panel

3:00 – 3:15 PM BREAK

3:15 – 4: 45 PM

Wrap-Up/Open Mic

Panelists from previous sessions and observers may

discussed during earlier panels or raise and discuss

other pertinent issues.

Thursday, May 12, 2016

9:00 – 10:30 AM

SESSION 1

Notice-and-Takedown Process—

Identification of Infringing Material

and Notice Submission

Overall effectiveness of process, including issues

relating to timing and linked content; volume of

notices; burdens on large- and small-scale creators

and copyright owners; considerations and strategies

in sending notices, including automated notices

versus human review; fair use considerations;

moral rights issues; “whack-a-mole” issue; relevant

empirical data; and other pertinent issues.

Jordan Berliant Revelation Management Group

George Borkowski Recording Industry Association of America

Rebecca Cusey Arts and Entertainment Advocacy Clinic at

George Mason University School of Law

Ron Gard* Tulane University Law School

Dave Green Microsoft

Alex Feerst Medium

Wayne Kramer Movie Prose

Keith Kupferschmid Copyright Alliance

Jeff Lyon Fight for the Future

Brian McNelis Lakeshore Records

Corynne McSherry Electronic Frontier Foundation

Braxton Perkins NBC Universal

Jay Rosenthal ESL Music/ ESL Music Publishing

Charles Roslof Wikimedia Foundation

T.J. Stiles Author

Jennifer Urban University of California-Berkeley School of Law

Ruth Vitale Creative Future

Devon Weston Digimarc

Stephen Worth Amazon

Betsy Viola Zedek Disney

* Not present for panel

10:30 – 10:45 AM BREAK

10:45 AM – 12:15 PM

SESSION 2

Notice-and-Takedown Process—

Service Provider Response and

Counter-Notifications

Handling of and response to notices, including timing

and notices from high-volume senders; sending and

handling of counter-notifications; volume of notices

and counter-notifications; costs and burdens on

large- and small-scale service providers; role of

automation, including filtering technologies;

noncompliant notices and misuse of notice process;

rejection of notices; impact of takedowns on users

and public; protections for fair use; relevant

empirical data; and other pertinent issues.

Lila Bailey Internet Archive

Eric Cady Independent Film & Television Alliance

Dan Coleman Modern Works Music Publishing

Carl Crowell Crowell Law

Deron Delgado American Association of Independent Music

East Bay Ray Dead Kennedys (Musician)

Steven Ellerd Graduate Student

Evan Engstrom Engine

Cathy Gellis Digital Age Defense

Joseph Gratz Durie Tangri LLP

Daphne Keller Stanford Law School Center for Internet

and Society

Peter Midgley Brigham Young University

Gabriel Miller Paramount Pictures Corporation

Chris Riley Mozilla

Ellen Seidler Fast Girl Films

Ira Siegel Copyright Enforcement Group Inc.

Jonathan Taplin USC Annenberg Innovation Lab

Elizabeth Valentina Fox Entertainment Group

Fred von Lohmann Google

Devon Weston Digimarc

12:15 – 1:30 PM LUNCH (ON YOUR OWN)

1:30 – 3:00 PM

SESSION 3

Applicable Legal Standards

Actual and “red flag” knowledge requirements;

financial benefit/right to control test; willful

blindness; repeat infringers; good-faith

requirements; misrepresentation; fair use; use

of representative lists; availability of injunctive

relief; use of subpoenas; role of “standard technical

measures”; and other pertinent issues.

Ian Ballon Stanford Law School Center for E-Commerce

George Borkowski Recording Industry Association of America

Andrew Bridges Fenwick & West LLP

Dan Coleman Modern Works Music Publishing

Carl Crowell Crowell Law

Paul Doda Elsevier

Evan Engstrom Engine

Alex Feerst Medium

Cathy Gellis Digital Age Defense

Devlin Hartline Center for the Protection of Intellectual Property

Corynne McSherry Electronic Frontier Foundation

Peter Midgley Brigham Young University

Tom Murphy Content Creators Coalition

Ryan Noormohamed Tulane University Law School

Sean O'Connor University of Washington (Seattle)

Jeffrey Sedlik PLUS Coalition

Ellen Schrantz Internet Association

Ben Sheffner Motion Picture Association of America

Brian Willen Wilson Sonsini Goodrich

Stephen Worth Amazon

3:00 – 3:15 PM BREAK

3:15 – 4: 45 PM

SESSION 4

Scope and Impact of Safe Harbors

Scope of entities and activities covered by safe

harbors; incentives (and disincentives) for

creators, copyright owners, online providers,

investors, and users; impact on licensing

activities; effectiveness of remedies, including

ability to proceed in federal court in case of

disputed notice or misrepresentation; economic

impact on creators, copyright owners, service

providers and copyrighted works; relevant

empirical data; and other pertinent issues.

Lila Bailey Internet Archive

Jordan Berliant Revelation Management Group

Andrew Bridges Fenwick & West LLP

Eric Cady Independent Film & Television Alliance

Rebecca Cusey Arts and Entertainment Advocacy Clinic at

George Mason University School of Law

Paul Doda Elsevier

East Bay Ray Dead Kennedys (Musician)

Steven Ellerd Graduate Student

Dave Green Microsoft

Devlin Hartline Center for the Protection of Intellectual Property

Daphne Keller Stanford Law School Center for Internet

and Society

Joshua Lamel Re:Create

Steve Marks Recording Industry Association of America

Michael Masnick Copia Institute

Donald Passman Gang Tyre Ramer & Brown, Inc.

Jeffrey Sedlik PLUS Coalition

Ellen Schrantz Internet Association

Jonathan Taplin USC Annenberg Innovation Lab

Elizabeth Valentina Fox Entertainment Group

Brian Willen Wilson Sonsini Goodrich

Friday, May 13, 2016

9:00 – 10:30 AM

SESSION 5

Technological Strategies

and Solutions

Infringement monitoring tools and services;

automated sending of notices, including notice

parameters; automated processing of notices; role

of human review; identification of works through

fingerprinting, hash identifiers, and other

technologies; filtering, including “staydown”

capabilities; fair use considerations; identification

and tracking of repeat infringers; and other

pertinent issues.

Scott Andrews eBay, Inc.

Ron Gard* Tulane University Law School

Joseph Gratz Durie Tangri LLP

Daphne Keller Stanford Law School Center for Internet

and Society

Keith Kupferschmid Copyright Alliance

Jeff Lyon Fight for the Future

Dean Marks Motion Picture Association of America

Brian McNelis Lakeshore Records

Gabriel Miller Paramount Pictures Corporation

Tom Murphy Content Creators Coalition

Braxton Perkins NBC Universal

Chris Riley Mozilla

Tony Rodriguez Digimarc

Charles Roslof Wikimedia Foundation

Jeffrey Sedlik PLUS Coalition

Ellen Seidler Fast Girl Films

Jonathan Taplin USC Annenberg Innovation Lab

Jennifer Urban University of California-Berkeley School of Law

Fred von Lohmann Google

Betsy Viola Zedek Disney

* Not present for panel

10:30 – 10:45 AM BREAK

10:45 AM – 12:15 PM

SESSION 6

Voluntary Measures and Industry

Agreements

Voluntary alternatives to and modifications of

statutory notice-and-takedown process; best

practices; collaborative efforts of content owners,

service providers and others to address online

infringement, including availability of programs to

smaller service providers and creators; cooperation

in identifying infringers; graduated response

programs to address infringement; efforts to delist

or downgrade infringing materials within online

search results; participation of third-party providers,

such as advertisers and payment processors, in

voluntary arrangements; overall effectiveness of

voluntary arrangements; educational outreach;

government role in encouraging private solutions;

and other pertinent issues.

Scott Andrews eBay, Inc.

Alex Feerst Medium

Dave Green Microsoft

Devlin Hartline Center for the Protection of Intellectual Property

Keith Kupferschmid Copyright Alliance

Jeff Lyon Fight for the Future

Dean Marks Motion Picture Association of America

Michael Masnick Copia Institute

Brian McNelis Lakeshore Records

Michael Michaud Channel Awesome, Inc.

Gabriel Miller Paramount Pictures Corporation

Tom Murphy Content Creators Coalition

Sean O'Connor University of Washington (Seattle)

Tony Rodriguez Digimarc

Jeffrey Sedlik PLUS Coalition

Ira Siegel Copyright Enforcement Group Inc.

T.J. Stiles Author

Jennifer Urban University of California-Berkeley School of Law

Ruth Vitale Creative Future

Fred von Lohmann Google

12:15 – 1:30 PM LUNCH (ON YOUR OWN)

1:30 – 3:00 PM

SESSION 7

Future of Section 512

General trends, including notice volume and other

relevant empirical data; scalability and future

viability of section 512 notice-and-takedown system;

relevant technological developments; impact of

international models and norms; overall balance (or

imbalance) of system with respect to copyright

owners, service providers, and consumers; whether

system is fulfilling Congress’ intended objectives;

suggested improvements, including “notice-and-

staydown” and enhanced protections against misuse

of takedown process; interests of users and the

general public; and other pertinent issues.

Ian Ballon* Stanford Law School Center for E-Commerce

Eric Cady Independent Film & Television Alliance

Deron Delgado American Association of Independent Music

Paul Doda Elsevier

Alex Feerst Medium

Cathy Gellis Digital Age Defense

Joseph Gratz Durie Tangri LLP

Joshua Lamel Re:Create

Corynne McSherry Electronic Frontier Foundation

Michael Michaud Channel Awesome, Inc.

Michael Nash Universal Music Group

Sean O'Connor University of Washington (Seattle)

Chris Riley Mozilla

Jay Rosenthal ESL Music/ ESL Music Publishing

Charles Roslof Wikimedia Foundation

Ben Sheffner Motion Picture Association of America

T.J. Stiles Author

Bob Tourtellotte FilmMcQueen LLC

Fred von Lohmann Google

Stephen Worth Amazon

* Not present for panel

3:00 – 3:15 PM BREAK

3:15 – 4: 45 PM

Wrap-Up/Open Mic

Panelists from previous sessions and observers may

discussed during earlier panels or raise and discuss

other pertinent issues.

Monday, April 8, 2019

8:50 – 9:00 AM

OPENING REMARKS

Karyn A. Temple,

9:00 – 10:30 AM

SESSION 1

Domestic Developments

Erich C. Carey

Ken Hatfield

Mike Lemon

Mickey Osterreicher

Jennifer Pariser

Meredith Rose

Aws Shemmeri

Robert Winterton

Rasty Turek

Rebecca L. Tushnet

Brian Willen

National Music Publishers' Association

Artist Rights Caucus of Local 802

of the American Federation of Musicians

Internet Association

National Press Photographers Association

Motion Picture Association of America

Public Knowledge

ImageRights International, Inc.

NetChoice

Pex

Organization for Transformative Works

Wilson Sonsini Goodrich & Rosati

10:30 – 10:45 AM BREAK

10:45 AM – 12:15 PM

SESSION 2

Domestic Developments

Jonathan Band

Sofia Castillo

Caleb Donaldson/Brian Carver

Stephen Carlisle

Kenneth L. Doroshow

Douglas T. Hudson

Keith Kupferschmid

Arthur Levy

Peter Midgley

Sasha Moss

Mary Rasenberger

Library Copyright Alliance

Association of American Publishers

Google

Nova Southeastern University

Recording Industry Association of America

Etsy

Association of Independent Music Publishers

Brigham Young University

R Street Institute

Authors Guild

12:15 – 1:00 PM LUNCH

1:00 – 2:30 PM

SESSION 3

Domestic Developments

Richard James Burgess

Alex Feerst

Devlin Hartline

Catherine Gellis

Eric Goldman

Joseph Gratz

Jared Polin

Tamber Ray

Robert Schwartz

Christian Troncoso

Kate Tummarello

Ping Wang

Nancy Wolff

American Association of Independent Music

Medium

Center for the Protection of Intellectual Property,

Antonin Scalia Law School, George Mason University

The Copia Institute

Santa Clara University School of Law

Durie Tangri LLP

FroKnowsPhoto

NTCA ― The Rural Broadband Association

Consumer Technology Association

Business Software Alliance

Engine

Freelancer/writer

Digital Media Licensing Association

2:30 – 2:45 PM BREAK

2:45 – 4:30 PM

SESSION 4

International

Developments

Stan Adams

Eric Cady

Danielle Coffey

Alec French

Ashley Friedman

Joshua Lamel

Carlo Scollo Lavizzari

Stan McCoy

Corynne McSherry

Katherine Oyama

Christopher Randle

Steven Rosenthal

Matthew Schruers

Lui Simpson

Sherwin Siy

Abby Vollmer

Rachel Wolbers

Center for Democracy & Technology

Independent Film & Television Alliance

News Media Alliance

Thorsen French Advocacy

Information Technology Industry Council

Re:Create

International STM Association

Motion Picture Association EMEA

Electronic Frontier Foundation

Google

Facebook

McGraw-Hill Education

Computer and Communications Industry Association

Association of American Publishers

Wikimedia Foundation

GitHub

Engine

4:30 – 6:00 PM

OPEN MIC

Section 512 of title 17

u.S. copyright office

appendix c glossary of terms and acronyms

Acronym or Term

Full Name

512(a)

An online service provider that serves as a conduit for the automatic

transmission of material at the direction of third parties; also known as

“mere conduit” service providers or ISPs

512(b)

An online service provider that temporarily stores material that is

being transmitted automatically over the internet from one third party

to another; also known as “caching” service providers

512(c)

An online service provider that stores material at the direction of a

user on the service provider’s system or network; also known as

“hosting” service providers

512(d)

An online service provider that refers or links users to online sites

using information location tools; also known as “linking” or “search”

service providers

A2IM

American Association of Independent Music

AAP

Association of American Publishers

ACA

American Cable Association

ACR

Automatic Content Recognition

AFM

American Federation of Musicians

AGCOM

Autorità per la Garanzie nelle Comunicazioni;

Italian regulatory authority

AIMP

Association of Independent Music Publishers

AIPLA

American Intellectual Property Law Association

ANA

Association of National Advertisers

APA

American Photographic Artists

ARS

Artists Rights Society

ASMP

American Society of Media Photographers

BMI

Broadcast Music, Inc.

BSA

BSA | The Software Alliance

Content Creators Coalition

CAS

CCI

Center for Copyright Information

CCIA

Computer & Communications Industry Association

CDT

Center for Democracy & Technology

CEG

CJEU

Court of Justice of the European Union

Content ID

A rights-management system for YouTube

Counter-notice

A notice sent by a user whose material has been removed to the OSP

under section 512(g), seeking return of access to the material

CTA

Consumer Technology Association

Cyberlockers

OSPs that provide secure file storage and sharing services for different

types of media and data

DGA

Directors Guild of America

DiMA

Digital Media Association

DMCA

Digital Millennium Copyright Act

Acronym or Term

Full Name

DMCA+

DMCA Plus; refers to systems offered by OSPs that go beyond their

obligations under the notice-and-takedown system, such as rights-

management systems

DMCA Classic

OSPs that operate under traditional notice-and-takedown policies,

often ones that receive relatively few takedown notices

DMLA

Digital Media Licensing Association

DNS

Domain Name System; protocol for resolving domain names to their

corresponding IP addresses

DSM Copyright Directive

Directive EU 2019/790 of the European Parliament and of the Council

Market and Amending Directives 96/9/EC and 2001/29/EC

EFF

Electronic Frontier Foundation

Fair Use Principles

Fair Use Principles for User Generated Video Content; a set of guidelines

developed by user advocacy groups to address the free speech impact

of content removal and filtering

FMC

Future of Music Coalition

FTA

Free Trade Agreement

GAG

Graphic Artists Guild

Green Paper

Internet Policy Task Force, Copyright Policy, Creativity, and Innovation in

the Digital Economy (2013)

Hadopi

High Authority for the Diffusion of Works and the Protection of

Rights on the Internet; French agency tasked with overseeing the

graduated response system

IAB

Interactive Advertising Bureau

IACC

International AntiCounterfeiting Coalition

ICC

Internet Commerce Coalition

IFPI

International Federation of the Phonographic Industry

IFTA

Independent Film & Television Alliance

IITF

Information Infrastructure Task Force

InfoSoc Directive

Directive 2001/29/EC of the European Parliament and of the Council of

22 May 2001 on the Harmonisation of Certain Aspects of Copyright

and Related Rights in the Information Society

IP Address

Internet Protocol address; a numerical “address” that identifies each

device or server that is connected to a computer network

IPEC

Intellectual Property Enforcement Coordinator

IPO

Intellectual Property Owners Association

IPTF

Department of Commerce’s Internet Policy Task Force

ISP

Internet Service Provider: includes mere conduit service providers

categorized under section 512(a)

ITIF

Information Technology and Innovation Foundation

JSP

Joint Strategic Plan; written by the Office of the Intellectual Property

Coordinator who is charged with developing, with certain federal

departments and agencies, the Administration’s Joint Strategic Plan on

Intellectual Property Enforcement for submission to Congress every

three years

Acronym or Term

Full Name

LCA

Library Copyright Alliance

MPAA

Motion Picture Association of America

NIST

National Institute of Standards and Technologies

NMPA

National Music Publishers Association

OSP

Online Service Provider: includes service providers categorized under

sections 512(a)–(d)

OTW

Organization for Transformative Works

P2P

Peer-to-Peer: describes a type of file distribution network that allows

users to obtain files directly, without using a central server

Public Knowledge

PPA

Professional Photographers of America

QAG

Quality Assurance Guidelines; a set of guidelines developed by the

Interactive Advertising Bureau for certification of advertisers

Red Flag Knowledge

Term for when an OSP is “aware of facts or circumstances from which

infringing activity is apparent”

RIAA

Recording Industry Association of America

Rights Manager

A rights-management system for Facebook

RIPG

Ringtone Intellectual Property Group

RVO

Reliability Verification Organization; groups approved under Japan’s

Provider Liability Limitation Act to verify the contents of takedown

notices

SIIA

Software & Information Industry Association

SONA

Songwriters of North America

STM

Standard Technical Measures; technical measures used by

rightsholders to identify or protect copyrighted content that have been

developed pursuant to a multi-industry standards process

Störerhaftung

Translated generally as “breach of duty of care”; German legal

doctrine regarding liability of certain OSPs for infringing material

TAG

Trustworthy Accountability Group

Takedown Notice

A notice sent by a rightsholder to an OSP identifying infringing

material for removal

TPP

Trans-Pacific Partnership

UGC

User Generated Content; material that is uploaded to an OSP for

storage by its users

UGC Principles

Principles for User Generated Content Services; a set of guidelines

developed by rightsowners and OSPs to address online infringement

UMG

Universal Music Group

URL

Uniform Resource Locator; identifies the location (or address) of a

specific resource (such as a webpage or file) on a computer network

USTelecom

United States Telecom Association

WCT

WIPO Copyright Treaty

White Paper

Intellectual Property And The National Information Infrastructure: The

Report Of The Working Group On Intellectual Property Rights (1995)

Willful Blindness

Term for when an OSP acts deliberately to avoid obtaining actual or

red flag knowledge of infringing conduct or material

Acronym or Term

Full Name

WIPO

World Intellectual Property Organization

WMG

Warner Music Group

WPPT

WIPO Performances and Phonograms Treaty

u.s. copyright office · library of congress · 101 independence avenue se · washington, dc 20559 · www.copyright.gov