The Juelsgaard Intellectual Property Clinic recently submitted comments to the U.S. Copyright Office as part of the Office’s ongoing study of online safe harbors. Clinic students Christina Brow, ’18, Michael Hoosier, ’18, and Gerben Hartman, LLM ’17, filed the additional comments on behalf of Engine Advocacy, a non-profit technology, policy, research, and advocacy organization that works to bridge the gap between policymakers and startups. The Clinic’s comments urged the Copyright Office to ensure that copyright law’s “safe harbor” protections continue to protect the interests of startup and emerging online service providers and the tremendous innovation and growth they create.

The Clinic’s comments were submitted as part of a Copyright Office study asking whether parts of Section 512 of the Digital Millennium Copyright Act, or DMCA, should be changed. Section 512 gives online service providers, often known as OSPs, “safe harbor” protection from copyright liability for content posted by their users, as long as the OSPs follow certain steps. Section 512 also provides copyright owners an efficient way to protect their content that users upload without permission.

An OSP is a company like YouTube, Facebook, or WordPress that gives users a place on the internet to post things like videos, music, photos, articles and more.  Users sometimes post content that infringes someone else’s copyright. Section 512 provides a system for content owners in that situation to send a notice asking the OSP to remove or “take down” the allegedly infringing material from its site. The Copyright Office § 512 study is looking into how well this notice and takedown process works for content owners, OSPs and internet users whose posts might be removed.

Engine’s comments strongly opposed the creation of a so-called “notice and staydown” system, which some content owners have proposed.  Such a system would upset the balance Congress struck in § 512 and wrongly shift the burden onto OSPs to avoid any reposting of allegedly infringing content.  This is an impossible task for almost all OSPs, especially small entrepreneurs and startups. The kinds of software systems that would be necessary are extremely costly and time-consuming to develop — the comments point out that YouTube spent a number of years and over $60 million to create the Content ID tool.

A notice and staydown requirement would weaken the safe-harbor protections that have allowed a vast array of service providers to flourish. And it would create uncertainty about whether providers are complying, with ruinous infringement liability if they are not. For small businesses and startups, this cost and uncertainty would drive away investment capital and users and interfere with their continued innovation.

The Clinic’s comments also explain how the current notice and takedown system favors content owners and hampers innovation, especially by startups and small OSPs, which must respond to vast numbers of notices from content owners. Many of these notices—as many as one third—don’t actually meet the legal requirements of § 512. Some notices are simply mistaken or inaccurate, others target posted content that is not infringing because it is protected by fair use, and still others are wrongfully sent by people or companies to try to remove clearly non-infringing postings as a way to intentionally hurt online competitors, to censor online political speech the sender doesn’t like, or to stifle speech that legitimately criticizes the sender or their business.

The Clinic’s comments note that it is too easy for content owners to send false notices because they do not face any meaningful penalties when they do.  As a result, owners are incentivized to send large numbers of notices without first verifying that the content in fact infringes their copyright.

Section 512 also provides a way for users whose posts are removed by a takedown notice to file a counter-notice that challenges the takedown and results in the content being restored if the owner doesn’t quickly file a lawsuit. Unfortunately, very few users whose posts are taken down file counter-notices.  The Clinic’s comments explain that this is because the counter-notice process is unnecessarily intimidating and risky and requires users to provide their names, address, and other personal information and to accept service of papers for a lawsuit.  Users who have legitimate reasons to post anonymously, such as whistleblowers, employees criticizing their companies or bosses, citizens challenging powerful politicians, and many more, can’t restore their posts without “outing” themselves and potentially facing retaliation, ostracism or other harm.

To make the notice-and-takedown system more fair for startups and users, the Clinic’s comments recommended increasing penalties for false notices and adopting a repeat false sender standard that would enable OSPs to ignore content owners who repeatedly send false notices. It also suggested that statutory damages in copyright lawsuits against service provider or users, which can be as much as $150,000 per work, be reduced or eliminated.

Startups are responsible for a huge amount of the new net job growth in the US.  The massive growth that the internet has created in the past two decades is due primarily to small businesses and new entrepreneurs. That growth would have been impossible without § 512 limited liability and copyright protection regime. The Clinic’s comments reiterate this critical role that the DMCA has played and urge the Copyright Office and Congress not to undermine the innovation and competitiveness of startups as any changes to § 512 are considered. The comments advocate that any reforms use a chisel rather than a sledgehammer.