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U.S. Copyright Office Wants You to Comment on the DMCA

By Jonathan R. Tung, Esq. | Last updated on

Just before 2015 became yesterday's news, the United States Copyright Office issued a statement of intended plans to open a public study meant to "evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, U.S.C."

For those who aren't copyright law geeks, that's part of the Digital Millennium Copyright Act. These are the carve outs that allow online copyright use without first contacting the copyright holders. Own a copyright? Hate the law as it is written? Now's your chance to voice your opinion.

Section 512

It sounds like a shadowy underground Illuminati group, but it is actually a specific section of the DMCA that deals with the Act's safe harbor provisions that protect online service providers. The legal issue at the center of all of this has to do with the legal exposure suffered by online providers that post (potentially) copyright infringing material on their site at the direction of their users. What if you posted the material in good-faith? Well, section 512 is for you.

In general, a lawsuit over alleged infringements does not suddenly just spring into being without at least some basic pre-litigation procedure first. Both the defendant and the plaintiff have to go through "notice" and "notice-and-takedown" steps before a real legal fight begins. An excellent primer on those steps was written by the Digital Media Law Project.

Questions ... Comments?

The inquiry into the effectiveness of the safe harbor provisions (dubbed the "512 Study") will consider a number of different questions. Some of the choicer ones include:

  • Are the section 512 safe harbor provisions working as Congress intended?
  • Have courts properly construed the entities and activities covered by sec 512?
  • Do notice-and-takedown processes sufficiently address the concerns of repeat infringers?
  • How efficient and burdensome is sec 512 notice-and-takedown in the light of addressing online copyright infringements?

The actual total list of questions was distilled into a list that can be found in the Federal Register notice -- so there is an official list. The questions above offer a taste of the actual thing.

Hold Your Horses

You can't submit comments yet, but instructions on how to do so are pending. The exact method and means of commenting will be posted on the USCO's website on February 1, 2016. It is sure to be a lively discussion between copyright owners and website owners and users. Platform owners are generally resistant to carrying the onus of performing their own due-diligence before posting.

On the other side, copyright holders rather like the idea of searching out possible infringements. We shall see where the discussion takes us.

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