Copyright Office Studies DMCA Notice-and-Takedown Process

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(March 11, 2016) While many of us prepared for New Year’s Eve celebrations, the U.S. Copyright Office spent December 31, 2015, releasing a notice of inquiry (NOI) for a study of the notice-and-takedown process established under Section 512 of the Digital Millennium Copyright Act (DMCA). The primary impetus behind the study appears to be that the current process may not serve either copyright holders or Internet service providers well given the continuing exponential growth in online content. Since colleges and universities straddle both camps, the EDUCAUSE Policy Office began engaging members about the study shortly after the notice of inquiry was released.

To begin assessing potential concerns about the notice-and-takedown process, the Copyright Office posed thirty questions for public comment, addressing topics such as:

  • The general effectiveness of the legal safe harbors to which the notice-and-takedown process relates in mitigating copyright infringement while shielding ISPs from liability;
  • The structure, operation, and impact of the notice-and-takedown process itself from both the service provider and copyright holder perspectives;
  • The structure, operation, and impact of the counter notification process in shielding service users from inaccurate infringement claims; and
  • The effectiveness of remedies under the DMCA for addressing both copyright infringement and abuse of the notice-and-takedown process through fraudulent or unfounded notices.

Based on feedback from members serving on the EDUCAUSE Policy Advisory Committee and the HEISC Governance, Risk, and Compliance Working Group, EDUCAUSE is preparing comments that highlight the lack of accountability for rights holders and their enforcement agents in relation to possible abuse of the notice-and-takedown process. Members noted that they have seen significant growth in DMCA notice volume in recent years that does not bear any direct connection to observable activity on campus networks. Rather, the increased volume seems driven by the interest of enforcement agents in generating it. This view has been reinforced by the increasing tendency of enforcement agents to add settlement offers to DMCA notices as well as to submit inaccurate or incomplete notices. Whether intentional or not, these factors appear designed to overwhelm institutional capacity to fairly manage the process, and thus to lead colleges and universities to distribute notices with settlement offers by default.

The EDUCAUSE response will likely call for the Copyright Office to work with DMCA stakeholders and, if necessary, Congress to set the level of accountability for abuse of the notice-and-takedown process on par with that applied to cases of alleged infringement. Given the legal and regulatory implications of introducing new deterrents, such as direct fines or enforcement actions by the Office, any proposed steps will require careful consideration and consultation across the affected communities. Thus, they will not come to pass quickly or easily. The study being pursued by the Office, however, is an appropriate vehicle for the necessary task of identifying and exploring potential options. As the notice-and-takedown experiences of many EDUCAUSE members make clear, the existing deterrents, which rely on the individual or organization accused of infringement to sustain a counter notification in court, are not adequate.

The Copyright Office extended the comment deadline for this study from March 21st to April 1st. EDUCAUSE will update the community about its response once it has been finalized. In addition, the Office has indicated it will hold public meetings to share its initial findings and seek further input. The EDUCAUSE Policy Office will update the community about those developments as well once more information has been released.

Jarret Cummings is director of policy and external relations at EDUCAUSE.