The US Copyright Office issued a lengthy report concluding that the Digital Millennium Copyright Act (DMCA) has “tilted askew” in favor of tech companies. It called on Congress to make changes in the act that will favor copyright owners.
Congress passed the DMCA in 1998. One goal of the Act was to accommodate the growth of websites and internet service providers that host user-generated content. Some of this content infringes third-party copyrights, which presented Congress with the question of allocating the risk of liability for such infringements.
Under the law as it then stood, websites that publish infringing content could be held liable under a theory of contributory infringement. The tech companies argued successfully at the time that they could not realistically be expected to police each one of the millions of posts on their sites. The DMCA resolved this by means of a safe harbor provision. This shifted the burden to copyright owners to police the internet for infringements and send takedown notices in each particular case.
Studios and music companies, the chief victims of online infringement, have long complained about this solution. They say it is expensive and time-consuming to have to send an individual notice for each infringing upload. With no reliable mechanism to shut down repeat infringers, they compare the entire process to a game of “whack-a-mole.”
The Copyright Office report recommends that Congress modify the DMCA to strengthen the hands of copyright owners in several respects. Court decisions based on the current statute had made it too easy for websites to deny “knowledge” of infringing content. The report called for changes to make it harder for them to turn a blind eye to systemic infringements.
The Copyright Office also addressed the issue of repeat infringers. The DMCA currently permits providers to terminate the accounts of repeat infringers but does not set clear standards. The report offered two proposals.
First, the report recommended that the statute codify a Fourth Circuit ruling that it is not necessary for a repeat infringer to have been found liable in court. As the Copyright Office put it: “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 … terminated, it is unlikely that such a threat would serve as a deterrent where monetary damages already had not.” It recommended that the appropriate standard should be repeat alleged infringement instead.
The Copyright Office also asked Congress to require all content providers to have a written policy governing repeat infringement. This would effectively overturn a recent Ninth Circuit decision upholding an unwritten policy. The office’s position is that an unwritten policy is an inadequate deterrent to online infringement, saying, “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?”
A Timely New Look
The DMCA went a long way to facilitate the growth of the web that is so much a part of our lives. It reflected a particular balance of interests at the time. As the web has evolved and the statute has been interpreted by the courts, a second look at that balance of interests is certainly timely. The Copyright Office has been issuing a series of reports suggesting updates to copyright law, one of which led to the Music Modernization Act, which was widely praised. Congress should give serious consideration to the recommendations in this latest report.