Copyright Office Issues NOI Regarding DMCA, Seeks Comment on “Repeat Infringers”

On Dec. 31, 2015, the U.S. Copyright Office published a Notice of Inquiry seeking to “evaluate the impact and effectiveness of the DMCA safe harbor provisions” found at 17 U.S.C. § 512. Comments in response to the Notice of Inquiry are due March 21, 2016, and the Office indicated it will hold public meetings to discuss the issues raised after the comments have been reviewed.

Since the Digital Millennium Copyright Act (“DMCA”) was enacted in 1998, the development of file sharing programs and the ever-increasing bandwidth allowing audio and video content to be shared over the Internet have led to the exponential growth of copyright infringement concerns and accusations.

In fact, this is the basis cited by the Copyright Office for launching the study, stating it would have been difficult for Congress

"to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos and other items, and service providers receive over a million notices of alleged infringement."

For Internet Service Providers (“ISPs”) who are bombarded daily with these notices from copyright owners or their agents, protection under Section 512’s safe harbor has become vital.

Section 512 immunizes an ISP from copyright infringement liability for the conduct of its subscribers where certain requirements are met. The DMCA provides four distinct safe harbors for ISPs in Sections 512(a), (b), (c), and (d) of the Copyright Act. These respective safe harbors apply when an ISP:

• Serves only as a conduit by which infringing content is transmitted online at the direction of third parties (peer-to-peer transmissions);
• Caches (i.e. temporarily stores) infringing material made available online by a person other than the ISP, where that material is transmitted online at the direction of a third party;
• Stores or hosts infringing material at the direction of a third party on a system or network controlled or operated by the ISP; or
• Refers or links a user to an online location containing infringing material or activity through information location tools such as a search engine.

While all four safe harbors contain unique threshold requirements, two requirements in 512(i)(1) are common to each of the safe harbors: service providers, including ISPs, must: (A) adopt and reasonably implement a policy to terminate “repeat infringers” in “appropriate circumstances;” and (B)

accommodate “standard technical measures” used for the identification and protection of copyrighted works as developed by consensus of copyright owners and ISPs. The questions of what constitutes a “repeat infringer” have long plagued ISPs and other online service providers who want to take advantage of the DMCA’s safe harbors. In the absence of a statutory definition, some providers have operated under the assumption that there must be adjudication or other acknowledgment of actual infringement. Others have looked at the totality of the circumstances and the number of allegations against a user to infer infringement, but have remained skeptical of the accuracy of the copyright owner’s infringement notices – often because many of the notices proved to be duplicative or only showing availability, not sharing, after investigation. This uncertainty has led to a variety of approaches in adopting and implementing the “termination policy” required by the DMCA.

Specifically, the Copyright Office has asked for comment on the effectiveness of repeat infringer policies, as well as whether there is sufficient clarity in the law as to what constitutes a repeat infringer policy for purposes of section 512’s safe harbors and, if not, what should be done to address this concern. While a recent court ruling clarified that a “repeat infringer” is not limited to an “adjudicated” infringer, there are many other questions that were not addressed:

• How many notices of “alleged” infringement should be tolerated?
• Is an escalated series of enforcement actions against “alleged” infringers prior to termination effective at reducing copyright infringement, or must an ISP immediately terminate a customer based on the notices alone?
• Once the customer relationship is terminated, how long must an ISP keep a customer off its network?
• Are the “appropriate circumstances” for termination different for users who post infringing material versus file share?

The Copyright Office’s study provides a forum for raising these issues and proposing workable guidelines in an effort to stave off additional litigation or further judicial interpretations made in the abstract.

In addition to guidance on the repeat infringer termination provisions, the Copyright Office seeks comment on the general effectiveness of the safe harbors, the notice-and-takedown process, counter notifications from individuals accused of posting infringing material, standard technical measures for the identification and protection of copyrighted material, and applicable legal standards and remedies under Section 512.