US DMCA Safe Harbors Review

The US Copyright Office has published a report about its review of §512 of the Digital Millenium Copyright Act – the service provider safe harbors. (Australia has its own safe harbour provisions in section 116AA and following of the Copyright Act 1968 but, as their availability is limited to a much narrower classe of “service providers”, they have not proved of much interest.)

According to the US Copyright Office’s report, this is the first comprehensive review of the operation of the safe harbors in the 20 years since their enactment.

The Copyright Office says its report does not recommend any wholesale changes to the scheme. However, there are “certain areas where Congress may wish to fine-tune” the section to better balance its operation. There are 12 recommendations about:

  • the definition of service provider who may qualify for the safe harbors;
  • the requirements for a repeat infringer policy
  • what level of knowledge of an infringing activity should a service provider have before the safe harbor no longer applies
  • appropriate identification of the allegedly infringing content and its location
  • the penalties for misrepresenting infringement claims or counter-notices
  • the extent to which a rights holder must take into account fair use before issuing a take-down notice
  • the extent to which notification standards reflect current technological developments
  • the time frames for response to counter-notices disputing a take-down notice
  • the mechanisms for subpoena-ing service providers for information about alleged infringers
  • the scope of injunctions
  • possible non-statutory approaches
  • alternative stakeholder proposals including web-site blocking and notice and staydown proposals which the Copyright Office considers require further study.

In addition to the review of the operation of the safe harbors and recommendations, there are also chapters on how the “online ecosystem” has developed since the enactment of the DMCA and legal approaches in other countries including our very own “site blocking” laws.

US Copyright Office summary

Full Report: Section 512 of title 17, May 2020

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