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.