After more than five years, the Copyright Office released its long awaited report on Section 512 of Title 17. Better known as the “safe harbor” provision that grants internet service providers with immunity from liability for copyright infringement committed by their users, Section 512 has become one of the most hotly debated provisions of copyright law. It’s also the provision that is arguably the ripest for a legislative fix, and yet the least likely to ever get one for want of consensus among stakeholders.
Enacted in 1998, at the dawn of the commercial internet, Section 512 was intended to create “strong incentives for service providers and copyright owners to cooperate to detect and deal with copyright infringements that take place in the digital network environment. At the same time, it provides greater certainty to service providers concerning their legal exposure for infringement that may occur in the course of their activities.” S. Rep. 105-190, at 20 (1998).
Unfortunately the spirit of cooperation envisioned by Congress has not been realized. Today, service providers use the safe harbor as a shield, turning a blind eye to obvious copyright infringement taking place on their networks, a perspective endorsed by a number of course who have misunderstood (or been willfully blind to) the balance that Congress sought to strike. Copyright owners are left holding the bag, essentially having to police the internet themselves for the rampant infringement that still takes place there today, notwithstanding the dozens of legal sources for copyrighted books, films, television shows, and music.
Thankfully the Copyright Office more or less agreed, writing:
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 reappearing 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.
The report, which runs nearly 200 pages, distilling five years of study into twelve recommendations, is available from the Copyright Office’s website. (The full record of the proceeding that led to the report is available here).
You can find more on the history and background of the Digital Millennium Copyright Act in Chapter 4 of my book, The Unrealized Promise of the Next Great Copyright Act.
I’ll be teaching a short (6 week; 2 credit) remote course in media law this summer as part of the University of New Hampshire Franklin Pierce School of Law’s Intellectual Property Summer Institute. Affectionately known as “IPSI” by us UNH alums, this year’s all-remote-taught institute marks the return of a longtime summer fixture at UNH that brings students together with professionals and expert academics from around the world for short, focused courses on various aspects of intellectual property law (and related areas). Of course the program used to live, in person, at the school’s Concord campus, but this year it will all be delivered online, and it’s open to law students, recent graduates, and practicing attorneys.
Here’s the official description for my course, Legal Issues in Media and Mass Communication:
This course offers broad exposure to various legal issues confronted by mass media enterprises, ranging from traditional broadcasters and similar internet-based services, to the major internet platforms and the new class of “media enterprises” that they spawned, such as YouTube influencers and TikTok stars. By examining current issues and events, students will navigate areas of law including defamation, rights of publicity and privacy, newsgathering and right of access, advertising, broadcast and internet regulation, intellectual property, and antitrust – to understand how the law’s staple doctrines apply to the business of producing and distributing news, information, and entertainment for mass consumption.
In addition to my media law course, they’re offering courses in a variety of topics. While I confess that I haven’t undertaken a comprehensive review of every law school’s catalog, I have a hunch that for at least several of these, you won’t find them anywhere else:
Cannabis & IP
Doing Business in China
IP Policy
IP & Entrepreneurship
Why Venue Matters in IP Litigation
Name, Image & Likeness in Sports
Patent Licensing
Patent Practice & Procedure
Trademark Searching
Video Gaming & IP
For more information, and to join us this summer at the IP Powerhouse, visit law.unh.edu/ipsi.
Back in October of 2017, in the days following the Route 91 Harvest Music Festival Shooting in Las Vegas, I wrote about how it was local broadcasters — not digital streaming platforms — that served as the most important source of news and information about the incident, the response, and the community’s recovery (see In Praise of Local Media).
This morning, millions of students are waking up without anywhere to go. As the unprecedented impact of the COVID-19 outbreak continues to spread rapidly across the United States, school districts from coast to coast are closing their doors, transitioning to remote learning in an effort to keep the students, teachers, and other school staff safe.
Here in Los Angeles, it was local broadcasting that helped the school district answer the call of changing times. On Friday, the Los Angeles area’s PBS stations — PBS SoCal, KCET, KLCS, along with San Francisco’s KQED — announced a partnership with the Los Angeles Unified School District that would allow the approximately 735,000 students to continue their studies remotely by dedicating the stations’ daytime lineups to grade-level-specific, curriculum-aligned programming.
The knee-jerk reaction these days is to convert everything to online delivery. Can’t get to class? No problem, just watch the lecture on YouTube, participate in a discussion on Canvas or Blackboard, then join a Google Hangout with your study group to talk about the homework. Got questions about the assignment? Just Slack your instructor.
That all works well for those with access to the internet, but despite how ubiquitous it’s become, the internet divide remains very real. Indeed, in a market like Los Angeles, where more than 84% of students qualify for free or reduced-price meals, there’s a good chance that many of its students don’t have internet access at home. Or if they do, it’s limited to a mobile device, which using for the duration necessary to deliver instruction is impractical. In ordinary times, absent those students might use the internet at their local library, but these are no ordinary times: both public library systems that serve the Los Angeles area are closed.
Broadcast television thus offers LAUSD with the widest possible reach. It’s free to viewers, and the broadcast signals cover essentially the entire metropolitan area. While it’s true that not every household owns a television, they’re more common than internet connections. Of the 5.8 million households in the Los Angeles market (comprising Los Angeles, Orange, Riverside, San Bernardino, and Ventura counties), 5.3 million (91%) have at least one television. (Unfortunately DMA-level internet penetration stats are difficult to come by, but I believe them to be less than 91% for Los Angeles).
All of this is to say, internet-based content services are no doubt a boon for consumers, but as the LAUSD’s solution to the COVID-19 closure demonstrates, they’re no match for broadcast television.
In an opinion piece published by The Hill on December 17, Senator Thom Tillis (R-N.C.), chairman of the Senate Judiciary Subcommittee on Intellectual Property, announced that he plans “to launch a major new initiative … to explore ways we can better promote the creative economy in the 21st century.” That initiative, comprising “a series of hearings … to evaluate both the policy baseline created by the DMCA and the current practices and and operations of both platforms and creators…” is intended to “re-forge the consensus that originally powered the DMCA and craft new legislation to modernize the DMCA for today’s internet.”
It’s a noble goal to be sure, but as I wrote in Chapter 6 of The Unrealized Promise, what to do with the DMCA — specifically the safe harbor provisions found in Section 512 of Title 17 — is among the most divisive issues in copyright policy discussions and, at least as of the House Judiciary Committee’s copyright review, one that stakeholders on either side had little interest in doing anything other than bemoan the fact that the other side “doesn’t get it” (I paraphrase slightly).
But as I also discuss in the book (in Chapter 11), there have been significant changes to the copyright policy landscape since the House undertook its review. Perhaps now — or more specifically, next year, when Sen. Tillis promises his hearings — is an appropriate time to re-visit the conversation. That said, I’m doubtful much has changed on this particular issue given how polarizing it’s been, dating back as long as the statute itself.
As an aside, Sen. Tillis mentioned that he’s looking forward to reading the forthcoming Copyright Office study on Section 512, but I hope he’s not holding his breath. That study has now been pending for four years, and given the recent news that Register of Copyrights Karyn Temple is leaving at the end of the year, it’s unlikely that the Office will be in a position to finalize a report on something as controversial as the DMCA anytime soon.
Following the resignation of Karyn Temple in early December, the Librarian of Congress has announced that Maria Strong, a longtime Copyright Office staffer and expert on international copyright law, will serve as acting Register of Copyrights until a permanent replacement is found.
From the announcement:
Strong has served as Associate Register of Copyrights and Director of Policy and International Affairs since April 23, 2019. In her position, Strong assisted the Register with critical policy functions of the U.S. Copyright Office, including domestic and international policy analyses, legislative support, and trade negotiations. She directed the Office of Policy and International Affairs, representing the Office at meetings of government officials concerned with the international aspects of copyright protection and enforcement and providing regular support to Congress and its committees.
Prior to that position, Strong served as deputy director of policy and international affairs since January 2015. Upon joining the Copyright Office in 2010, she served as senior counsel for policy and international affairs and also served as acting general counsel from April to July 2013. Before joining the Office, Strong spent nineteen years in private practice in Washington, DC, where she represented clients in the media, technology, and entertainment sectors and provided analyses and advocacy on global and domestic issues involving copyright law, enforcement, trade policy, and e-commerce. She began her legal career as a staff attorney at the Federal Communications Commission.
Strong earned her JD from George Washington University Law School, her MA in communications management from the University of Southern California’s Annenberg School of Communications, and her BA in communication studies from UCLA.
