Section 512 Study: Request for Additional Comments, 78636-78642 [2016-26904]

Agencies

• Library of Congress
• Copyright Office

[Federal Register Volume 81, Number 216 (Tuesday, November 8, 2016)]
[Notices]
[Pages 78636-78642]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-26904]


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LIBRARY OF CONGRESS

 Copyright Office

[Docket No. 2015-7]


Section 512 Study: Request for Additional Comments

AGENCY: U.S. Copyright Office, Library of Congress.

ACTION: Notice of inquiry.

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SUMMARY: The U.S. Copyright Office seeks further comments on the impact 
and effectiveness of the Digital Millennium Copyright Act (``DMCA'') 
safe harbor provisions. This request provides an opportunity for 
interested parties to reply or expand upon issues raised in written 
comments submitted on or before April 1, 2016, and during the public 
roundtables held May 2-3, 2016 in New York, and May 12-13, 2016 in San 
Francisco. The Copyright Office also invites parties to submit 
empirical research studies assessing issues related to the operation of 
the safe harbor provisions on a quantitative or qualitative basis.

DATES: Written responses to the questions outlined below must be 
received no later than 11:59 p.m. Eastern Time on February 6, 2017. 
Empirical research studies providing quantitative or qualitative data 
relevant to the subject matter of this study must be received no later 
than 11:59 p.m. Eastern Time on March 8, 2017.

ADDRESSES: For reasons of government efficiency, the Copyright Office 
is using the regulations.gov system for the submission and posting of 
public comments in this proceeding. All comments are therefore to be 
submitted electronically through regulations.gov. Specific instructions 
for submitting comments are available on the Copyright Office Web site 
at https://copyright.gov/policy/section512/comment-submission/. To meet 
accessibility standards, all comments must be provided in a single file 
not to exceed six megabytes (MB) in one of the following formats: 
Portable Document File (PDF) format containing searchable, accessible 
text (not an image); Microsoft Word; WordPerfect; Rich Text Format 
(RTF); or ASCII text file format (not a scanned document). The form and 
face of the comments must include the name of the submitter and any 
organization the submitter represents. The Office will post all 
comments publicly in the form that they are received. If electronic 
submission of comments is not feasible due to lack of access to a 
computer and/or the Internet, please contact the Office, using the 
contact information below, for special instructions.

FOR FURTHER INFORMATION CONTACT: Cindy Abramson, Assistant General 
Counsel, by email at ciab@loc.gov or by telephone at 202-707-8350; 
Kevin Amer, Senior Counsel for Policy and International Affairs, by 
email at kamer@loc.gov or by telephone at 202-707-8350; or Kimberley 
Isbell, Senior Counsel for Policy and International Affairs, by email 
at kisb@loc.gov or by telephone at 202-707-8350.

SUPPLEMENTARY INFORMATION: 

I. Background

    In order to evaluate key parts of the copyright law as it pertains 
to the digital copyright marketplace, the U.S. Copyright Office is 
conducting a study to evaluate the impact and effectiveness of the DMCA 
safe harbor provisions contained in 17 U.S.C. 512. To aid its work in 
this area, the Office published an initial Notice of Inquiry on 
December 31, 2015 (``First Notice''), seeking written comments to 30 
questions covering eight categories of topics. These included questions 
about the general efficacy of the DMCA provisions enacted in 1998, as 
well as the practical costs, and burdens, of the current DMCA 
environment.\1\ The Office received a combination of more than 92,000 
written submissions and form replies in response to the First Notice,

[[Page 78637]]

which can be found on the regulations.gov Web site at https://www.regulations.gov/docket?D=COLC-2015-0013.
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    \1\ See Section 512 Study: Notice and Request for Public 
Comment, 80 FR 81862, 81868 (Dec. 31, 2015).
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    In May 2016, the Copyright Office convened roundtables in New York 
and San Francisco, each for a two day period. The roundtables provided 
participants with the opportunity to share their views on the topics 
identified in the First Notice, as well as any other issues relating to 
the operation of the DMCA safe harbors.\2\ Transcripts of the 
proceedings at each of the roundtables are available on the Copyright 
Office Web site at https://copyright.gov/policy/section512/ under 
``Public Roundtables.'' \3\
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    \2\ See Section 512 Study: Announcement of Public Roundtables, 
81 FR 14896 (Mar. 18, 2016).
    \3\ References to the transcripts in this document are indicated 
by ``Tr.,'' followed by the page(s) and line(s) of the reference, 
the date of the roundtable, and the speaker's name and affiliation.
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    Based on the initial round of written submissions and the results 
of the roundtable discussions, the Copyright Office believes a number 
of themes merit additional consideration. Many of these relate to 
questions of balance, i.e., how to weigh the diverse interests and 
needs of affected stakeholders, including individual authors and their 
small businesses, publishers and producers of all sizes, Internet 
service providers (``ISPs'') of all sizes, and members of the public 
who may seek to access the Internet on any given day for any number of 
reasons. The Office is also interested in feedback regarding how to 
continue to propel the DMCA's underlying public interest objectives, 
that is, its twin goals of fostering a robust and innovative online 
environment while protecting the rights of content creators. Within 
these broad categories, the specific topics participants raised can be 
further grouped in the following general areas: (1) Characteristics of 
the current Internet ecosystem; (2) operation of the current DMCA safe 
harbor system; (3) potential future evolution of the DMCA safe harbor 
system, including possible legislative improvements; and (4) other 
developments.

A. Characteristics of the Current Internet Ecosystem

    One of the key themes that emerged from the first round of public 
comments and the roundtable discussions was the diversity of the 
current Internet ecosystem and the importance of factoring such 
diversity into any policymaking in the online space. Participants noted 
that there is a wide variety of experiences and views even within 
particular stakeholder groups.
    For example, study participants pointed out that differences in the 
characteristics of content creators result in different experiences 
with the operation of the DMCA safe harbors.\4\ They noted that the 
burden of addressing online infringement without an in-house piracy 
team is especially great for smaller content creators and businesses, 
and that some of the tools available to larger content owners are 
unavailable to smaller creators as a result of cost or other 
considerations.\5\ Similarly, some expressed the view that the quality 
of takedown notices often varies depending on the identity and size of 
the content creator, with notices from individuals and smaller entities 
often being less sophisticated and/or accurate than notices sent by 
large corporations employing automated processes.\6\ Other study 
participants highlighted the importance of taking into consideration 
the experiences of non-professional creators who rely on the platforms 
enabled by the DMCA safe harbors to disseminate and receive 
remuneration for their works.\7\
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    \4\ See, e.g., Tr. at 174:13-17 (May 3, 2016) (Andrew Deutsch, 
DLA Piper) (``[T]he world of creators runs from individual singer-
songwriters to gigantic studios and record producers. They have 
different needs, different problems, and it really is impossible to 
create a system that does everything for everyone.'').
    \5\ See, e.g., Dirs. Guild of Am., Comments Submitted in 
Response to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry 
at 6 (Apr. 1, 2016) (``To utilize the DMCA notice and takedown 
mechanism, a rights holder must first prepare notices in exact 
accordance with the complicated legal requirements of Section 512. 
Sending these notices to a designated agent of the service provider 
requires a level of legal expertise that larger rights holders may 
possess but which smaller creators do not have at their 
disposal.''); Kernochan Ctr. for Law, Media & the Arts, Columbia Law 
Sch., Comments Submitted in Response to U.S. Copyright Office's Dec. 
31, 2015 Notice of Inquiry at 7 (Apr. 1, 2016) (``The process is 
burdensome for individuals and entities of any size. Larger 
entities, which may hold or manage numerous copyrighted works, may 
use technological tools and many employees or consultants to search 
for infringing files on the [I]nternet and to file notices in an 
attempt to get them removed. Independent creators, however, often 
have to face this issue alone.'').
    \6\ See Tr. at 146:8-20 (May 2, 2016) (Brianna Schofield, Univ. 
of Cal., Berkeley Sch. of Law) (``[W]e looked at notices sent to 
Google Images search and these notice senders tended to be 
individuals, smaller businesses and we saw a much different dynamic 
here in that these were targeting sites that we might be more 
fearful would compromise legitimate expression, so blogs, message 
board threads. . . . Fifteen percent weren't even copyright 
complaints to start with. They were submitted as a DMCA complaint 
but they were actually complaining about privacy or defamation, this 
sort of thing.''); Tr. at 36:3-37:9 (May 12, 2016) (Jennifer Urban, 
Univ. of Cal., Berkeley Sch. of Law). But see Jonathan Bailey, 
Comments Submitted in Response to U.S. Copyright Office's Dec. 31, 
2015 Notice of Inquiry at 2 (Feb. 16, 2016) (``With this automation 
has come increased mistakes. Machines are simply not as good at 
detecting infringement and fair use issues as humans.'').
    \7\ See, e.g., Tr. at 282:21-283:6 (May 13, 2016) (Cathy Gellis, 
Dig. Age Def.); Tr. at 324:1-15 (May 2, 2016) (Ellen Schrantz, 
Internet Ass'n).
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    Likewise, a heterogeneous picture of ISPs emerged from the first 
round of comments and the public roundtables, with large deviations in 
terms of functions, size, resources, and business models, as well as 
the volume of DMCA takedown notices received on an annual basis. While 
some of the larger platforms \8\ like Google, Facebook, SoundCloud, and 
Pinterest have devoted resources to implementing automated filtering 
systems and other tools to remove significant amounts of infringing 
content,\9\ there appear to be many more ISPs that are continuing to 
operate manual DMCA takedown processes for a lower volume of 
notices.\10\ Some commenters expressed concern that promulgation of 
rules designed for the former could place an undue burden on the 
operations of the latter.\11\
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    \8\ Larger both in terms of the amount of content that appears 
on the site, and the technological and monetary resources available 
to address DMCA notices.
    \9\ See, e.g., Audible Magic Corp., Comments Submitted in 
Response to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry 
at 4 (Mar. 21, 2016) (``[U]ser-generated-content sharing and cloud 
file sharing networks [including Facebook, Dailymotion, SoundCloud, 
and Twitch] . . . dramatically reduce copyright-infringing media 
sharing using Audible Magic software and hosted services [to] . . . 
detect[] registered audio and video content in the user upload 
stream.''); Pinterest Inc., Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 3 (Apr. 1, 
2016) (``[O]ur engineering team built a tool that allowed us to . . 
. attach the author's name to [an] image. . . . Pinterest has also 
developed tools to help content owners prevent certain content from 
being saved to Pinterest, and to enable the quick removal of their 
content if they so wish.'').
    \10\ See, e.g., Tr. at 111:17-21 (May 12, 2016) (Lila Bailey, 
Internet Archive) (``The Internet Archive definitely falls into the 
DMCA Classic [category]. They have a tiny staff . . . and they 
review every notice they get by a human being.''); Tr. at 157:3-10 
(May 12, 2016) (Joseph Gratz, Durie Tangri LLP) (``[T]he Internet 
from 1998 is still all there . . . it's small OSPs, small content 
creators, small copyright holders needing remedies for small 
infringements.''); Tr. at 100:10-15 (May 12, 2016) (Charles Roslof, 
Wikimedia Found.) (``We operate Wikipedia and . . . despite the 
large amount of content we host, we receive very few takedown 
notices.'').
    \11\ See Internet Ass'n, Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 15 (Mar. 31, 
2016) (``[S]tartups and small businesses lack the sophisticated 
resources of larger, more established businesses in responding to 
takedown requests.'').
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    In addition, several study participants highlighted the importance 
of taking into consideration the needs of individual Internet users 
when developing recommendations for possible changes to the DMCA safe

[[Page 78638]]

harbor system.\12\ Participants emphasized that the DMCA counter-notice 
process is an important mechanism to protect the legitimate online 
speech of individual Internet users, and that the proliferation of 
diverse platforms and services made possible by the DMCA safe harbors 
provides a critical benefit for the public.
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    \12\ See Pub. Knowledge, Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 4 (Apr. 1, 
2016) (``Section 512 appropriately balances the interests of online 
platforms and copyright owners . . . . Where the balance is acutely 
in need of recalibration, though, is with respect to user 
rights.''); Tr. at 101:4-10 (May 13, 2016) (Daphne Keller, Stanford 
Law Sch. Ctr. for Internet & Soc'y).
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B. Operation of the Current DMCA Safe Harbor System

    While some study participants asserted that the section 512 safe 
harbors are currently operating effectively and as Congress intended, a 
number of participants identified various shortcomings and barriers for 
content creators, ISPs, and individual Internet users. These differing 
views were especially stark when comparing the experiences of content 
creators (large and small) with the experiences of online service 
providers.\13\ ISPs generally painted a picture of a thriving and 
vibrant Internet ecosystem that was largely the result of the 
safeguards and protections of the DMCA safe harbors.\14\ While ISP 
participants acknowledged the ever-increasing volume of takedown 
notices that are now being sent, they viewed the ability of larger ISPs 
to accommodate the increased volume as an example of the overall 
success of the system.\15\ In stark contrast, many content creators of 
all sizes bemoaned what they saw as the inefficiency and 
ineffectiveness of the system.\16\ These participants complained about 
the time and resources necessary to police the Internet and viewed the 
ever-increasing volume of notices as an example of the DMCA notice-and-
takedown regime's failure to sufficiently address the continued 
proliferation of online infringement.\17\
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    \13\ Compare Tr. at 92:6-11 (May 12, 2016) (Jordan Berliant, 
Revelation Mgmt. Grp.) (``I'm very concerned about even our biggest 
client's ability to earn a living under the current copyright 
protection system, which, in effect, sanctions the infringement of 
their rights and is devastating to the revenue that they can earn 
from recording music.''), and Tr. at 119:1-5 (May 2, 2016) (Jennifer 
Pariser, Motion Picture Ass'n of Am.) (``[T]his is where on the 
content side we feel the imbalance comes, that [processing takedown 
notices is] a cost of doing business for an online service provider 
that is relatively manageable for them, whereas on the creation 
side, we're being killed by piracy.''), with Facebook, Inc., 
Comments Submitted in Response to U.S. Copyright Office's Dec. 31, 
2015 Notice of Inquiry at 4 (Apr. 1, 2016) (``It is quite effective. 
. . . [W]hile the DMCA by necessity imposes some burden on the 
respective parties, its procedures unquestionably result in the 
effective and consistent removal of infringing content from the 
Internet.''), and Amazon.com, Inc., Comments Submitted in Response 
to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 3-4 
(Apr. 1, 2016) (discussing the role of section 512 in fostering a 
balanced copyright regime that allows Internet creativity and 
innovation).
    \14\ See Intel Corp., Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 4-5 (Apr. 1, 
2016) (``As stated in the House Report, the goal of the [Digital 
Millennium Copyright] Act was to lubricate the legitimate 
distribution of creative content. When measured by these 
Congressional yardsticks, Section 512 has been a stunning success. . 
. . At the same time, Congress desired to preserve `strong 
incentives for service providers and copyright owners to cooperate 
to detect and deal with copyright infringements that take place in 
the digital networked environment.' Intel believes that the Act has 
done just that.'').
    \15\ See, e.g., New Am.'s Open Tech. Inst., Comments Submitted 
in Response to U.S. Copyright Office's Dec. 31, 2015 Notice of 
Inquiry at 3 (Apr. 1, 2016); Tr. at 77:7-13 (May 13, 2016) (Fred von 
Lohmann, Google, Inc.) (``I disagree with people who think that a 
large volume of notices is a sign of failure; in fact, quite the 
contrary. If the notices weren't doing any good, if it was too 
expensive to send, we would expect the numbers to be falling, not 
rising. And in fact, we see them rising because the systems are more 
efficient.'').
    \16\ See, e.g., Am. Ass'n of Indep. Music et al., Joint Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015 
Notice of Inquiry at 21 (Apr. 1, 2016); T Bone Burnett et al., Joint 
Comments Submitted in Response to U.S. Copyright Office's Dec. 31, 
2015 Notice of Inquiry at 2 (Apr. 1, 2016).
    \17\ See, e.g., Tr. at 108:2-5 (May 13, 2016) (Dean Marks, 
Motion Picture Ass'n of Am.).
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    ISPs, civic organizations, and content creators also expressed 
differing views regarding the extent to which false or abusive notices 
are a problem under the current system, and the effectiveness of the 
counter-notice process for ensuring access to legitimate content. 
Several ISPs and civic groups pointed to abusive notices as one of the 
primary shortcomings of the safe harbor regime. They pointed to the 
length of time required to have material replaced after a counter-
notice,\18\ and argued that having non-infringing content removed even 
for a few days can severely impact a business.\19\ Several groups cited 
recent data released by researchers at the University of California, 
Berkeley School of Law as evidence of the scope of the problem.\20\ 
Some content creators, on the other hand, expressed the view that 
abusive notices are in fact quite rare \21\ and that the number of 
improper notices pales in comparison to the overwhelming volume of 
infringing content. They argued that the counter-notice process 
sufficiently protects legitimate material,\22\ and pointed out that the 
financial burden of bringing a federal court case to prevent the 
reposting of infringing material within days of receiving a counter-
notice makes the provision unusable in practice.\23\
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    \18\ See, e.g., Jill Doe, Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 2 (Mar. 21, 
2016); Verizon Commc'ns, Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 18 (Apr. 1, 
2016).
    \19\ See, e.g., Tr. at 153:3-17 (May 2, 2016) (Rebecca Prince, 
Becky Boop); Tr. at 75:4-8 (May 12, 2016) (Alex Feerst, Medium); Tr. 
at 164:9-16 (May 12, 2016) (Joseph Gratz, Durie Tangri LLP).
    \20\ See, e.g., Engine et al., Comments Submitted in Response to 
U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 9 (Apr. 
1, 2016); Internet Commerce Coal., Comments Submitted in Response to 
U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 3 (Apr. 
1, 2016).
    \21\ See, e.g., Tr. at 155:9-13 (May 2, 2016) (Steven Rosenthal, 
McGraw-Hill Educ.); Tr. at 183:21-184:1 (May 12, 2016) (Gabriel 
Miller, Paramount Pictures Corp.).
    \22\ See Copyright All., Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 20-21 (Apr. 1, 
2016).
    \23\ See, e.g., Dig. Media Licensing Ass'n, Inc. et al., Joint 
Comments Submitted in Response to U.S. Copyright Office's Dec. 31, 
2015 Notice of Inquiry at 7 (Apr. 1, 2016); Sony Music Entm't, 
Comments Submitted in Response to U.S. Copyright Office's Dec. 31, 
2015 Notice of Inquiry at 16 (Apr. 1, 2016) (citing the cost of 
litigation as accounting for the fact that ``since 2008, thousands 
of videos infringing Sony's copyrights have been reinstated on 
YouTube due to counter notifications not being contested by Sony'' 
even though ``[i]n the vast majority of those instances, there was 
no legitimate question that the use infringed Sony's exclusive 
rights'').
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    Both content creators and ISPs identified shortcomings in their 
abilities to efficiently process notices under the current system. ISPs 
identified the difficulty of receiving notices through multiple 
channels (e.g., email, web form, fax, etc.),\24\ as well as incomplete 
or unclear notices,\25\ as barriers to efficient processing of takedown 
requests. Several ISPs have reported moving to the use of web forms for 
receipt of takedown notices in order to overcome some of these 
difficulties.\26\
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    \24\ See Tr. at 54:22-55:11 (May 3, 2016) (Matthew Schruers, 
Comput. & Commc'ns Indus. Ass'n).
    \25\ See Internet Archive, Comments Submitted in Response to 
U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 3 (Mar. 
22, 2016).
    \26\ See Jennifer M. Urban, Joe Karaganis & Brianna L. 
Schofield, Notice and Takedown in Everyday Practice 37 (UC Berkeley 
Pub. Law Research, Paper No. 2755628, 2016), https://ssrn.com/abstract=2755628.
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    In contrast, many content creators identified ISP-specific web 
forms as a barrier to effective use of the notice-and-takedown process, 
increasing the amount of time required to have the same material taken 
down across multiple platforms.\27\ Other barriers to use of the 
notice-and-takedown process identified by content creators included 
additional ISP-created requirements that some claimed go far beyond the 
requirements of the DMCA,\28\ and

[[Page 78639]]

privacy concerns stemming from the public release of personal 
information about the notice sender.\29\
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    \27\ See Ass'n of Am. Publishers, Comments Submitted in Response 
to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 7 
(Apr. 1, 2016); Tr. at 19:5-11 (May 12, 2016) (Devon Weston, 
Digimarc).
    \28\ See, e.g., Ellen Seidler, Fast Girl Films, Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015 
Notice of Inquiry at 2 (Apr. 1, 2016) (``Because the email address 
for Google's DMCA Agent is not posted on its Web sites, rights 
holders must jump through various hoops and navigate through a 
series of questions in order to arrive at the correct form. Once 
there it takes additional time to complete the 9-part form. Before 
one can actually send it one must be sure to create a Google 
account, then login and send.''); Tr. at 59:14-19 (May 2, 2016) 
(Lisa Shaftel, Graphic Artists Guild).
    \29\ See, e.g., Arts & Entm't Advocacy Clinic at George Mason 
Univ. Sch. of Law, Comments Submitted in Response to U.S. Copyright 
Office's Dec. 31, 2015 Notice of Inquiry at 11 (Apr. 1, 2016) 
(``[P]ublicly revealing personal information about a notice sender 
may endanger the artist's property and safety.'').
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    Study participants noted similar barriers that discourage users 
from submitting counter-notices, even in response to what some consider 
to be erroneous or fraudulent takedown notices. The identified barriers 
included a similar lack of standardization for filing counter-notices, 
a lack of education regarding the counter-notice process, privacy 
concerns, and the threat of potential legal proceedings.\30\
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    \30\ See, e.g., Rodrigo Adair, Comments Submitted in Response to 
U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 1-2 (Mar. 
18, 2016); New Media Rights, Comments Submitted in Response to U.S. 
Copyright Office's Dec. 31, 2015 Notice of Inquiry at 16-17 (Apr. 1, 
2016); Tr. at 253:5-7 (May 13, 2016) (Michael Michaud, Channel 
Awesome, Inc.).
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    In addition to noting practical barriers that may make utilization 
of the safe harbor system difficult, several commenters pointed to 
court opinions that they argue have decreased the effectiveness of the 
statutory scheme created by Congress. These developments include 
judicial interpretations of the actual and red flag knowledge 
standards, the right and ability to control and financial benefit 
tests, section 512's references to ``representative lists,'' and 
section 512's requirement that ISPs implement a repeat infringer 
policy. Some content creators and others expressed concern that the 
first three developments, taken together, have systematically changed 
the application of section 512, tipping it in favor of ISPs,\31\ while 
a number of ISPs expressed concerns about the ongoing impact of recent 
repeat infringer jurisprudence.\32\
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    \31\ See, e.g., Matthew Barblan et al., Joint Comments Submitted 
in Response to U.S. Copyright Office's Dec. 31, 2015 Notice of 
Inquiry at 1 (Apr. 1, 2016); Tr. at 196:25-197:12 (May 3, 2016) 
(June Besek, Kernochan Ctr. for Law, Media & the Arts) (``[I]n the 
last 18 years or so, I think courts have often placed a lot of 
emphasis on the ability of service providers to flourish and grow 
and perhaps less emphasis on the concerns of right holders. And you 
can see that in a lot of different ways--defining storage very 
broadly, defining red flag knowledge very narrowly, reading 
representative lists out of the statute, basically, leaving right 
holders with little recourse other than sending notice after notice 
after notice to prevent reposting of their material. And they can 
never really prevent it.'').
    \32\ See, e.g., Am. Cable Ass'n, Comments Submitted in Response 
to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 5 
(Apr. 1, 2016); CTIA--The Wireless Ass'n, Comments Submitted in 
Response to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry 
at 11-12 (Apr. 1, 2016).
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    One other debate between content creators and ISPs relates to the 
fact that section 512 sets forth a variety of differing safe harbor 
requirements for ISPs depending upon the function they are performing 
(i.e., mere conduit, hosting, caching, or indexing). Thus, several 
telecommunications providers asserted that section 512 imposes no 
obligation on ISPs either to accept or act upon infringement notices 
when they are acting as a mere conduit under section 512(a).\33\ Some 
content creators, however, expressed concern that failure to accept 
such notices, even if not part of a formal notice-and-takedown process, 
would weaken the requirement that ISPs adopt and reasonably implement a 
section 512(i) repeat infringer policy.\34\
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    \33\ See, e.g., Tr. 65:24-67:21 (May 2, 2016) (Jacqueline 
Charlesworth, U.S. Copyright Office; Patrick Flaherty, Verizon 
Commc'ns).
    \34\ See Tr. 257:12-15 (May 2, 2016) (David Jacoby, Sony Music 
Entm't).
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C. Potential Future Evolution of the DMCA Safe Harbor System

    Study participants have suggested a number of potential solutions 
to the issues raised above, though it should be understood that these 
solutions stem only from the subset of stakeholders who suggest or 
acknowledge in the first instance that the current regime requires or 
could benefit from changes. These solutions included both non-
legislative solutions (such as education, the use of technology, or 
voluntary and standard technical measures) and legislative fixes 
(either through changes to section 512 itself or passage of legislation 
to address issues not directly addressed by section 512).
    The non-legislative solution that appeared to have the broadest 
approval was the idea of creating governmental and private-sector 
educational materials on copyright and section 512. Participants 
recommended the creation of targeted educational materials for all 
participants in the Internet ecosystem, including content creators,\35\ 
users,\36\ and ISPs.\37\
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    \35\ See Tr. at 73:23-74:8 (May 2, 2016) (Lisa Hammer, 
independent film director).
    \36\ See Tr. at 52:6-10 (May 2, 2016) (Janice Pilch, Rutgers 
Univ. Libraries); Tr. at 279:21-281:8 (May 12, 2016) (Brian Willen, 
Wilson Sonsini Goodrich); Tr. at 253:22-254:11 (May 13, 2016) 
(Michael Michaud, Channel Awesome, Inc.).
    \37\ See Future of Music Coal., Comments Submitted in Response 
to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 18 
(Apr. 1, 2016).
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    A number of study participants noted that technology can help 
address some of the inefficiencies of the current notice-and-takedown 
process. Some participants cited increased efficiencies to be had from 
both automated notices and takedowns, as well as other technological 
tools.\38\ Other participants, however, cautioned against over reliance 
on technology. Several reasons for questioning the ability of 
technology to resolve problems with the current system were mentioned, 
including the expense of developing systems capable of handling notice-
and-takedown processes, concerns that automated processes may be more 
vulnerable to false positives, and the limited capabilities of even the 
most advanced current technology.\39\
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    \38\ See, e.g., Universal Music Grp., Comments Submitted in 
Response to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry 
at 18 (Apr. 1, 2016); Tr. at 97:17-98:4 (May 13, 2016) (Betsy Viola 
Zedek, The Walt Disney Co.).
    \39\ See, e.g., Wikimedia Found., Comments Submitted in Response 
to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 7 
(Apr. 1, 2016); Tr. at 312:16-20 (May 2, 2016) (Sarah Feingold, 
Etsy, Inc.).
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    Another potential non-legislative solution that was suggested was 
the development and adoption of industry-wide, or sub-industry-
specific, voluntary measures \40\ and standard technical measures,\41\ 
and/or the standardization of practices for notice and takedown.\42\ A 
number of study

[[Page 78640]]

participants pointed to the failure to adopt standard technical 
measures under section 512(i), nearly two decades after passage of the 
DMCA, as a demonstrable failure of the current section 512 system.\43\ 
Some study participants suggested that there may be a role for the 
government generally, or the U.S. Copyright Office in particular, to 
play in encouraging or supporting the adoption of such standard 
technical measures by convening groups of relevant stakeholders.\44\
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    \40\ While many of the voluntary measures discussed by study 
participants were technological in nature (such as Google's Content 
ID system), there were other programs that some participants pointed 
to as potential blueprints for private action to improve the 
operation of the safe harbor processes, including development of 
industry best practices guidelines; initiatives like the Copyright 
Alert System; cooperative arrangements between content owners and 
payment processors, advertisers, and domain name registries; and 
voluntary demotion of infringing results by search engines. Although 
many participants expressed optimism that voluntary agreements could 
help improve the efficacy of the safe harbor system, other 
participants cautioned that voluntary measures should be viewed as 
supplements to reform, rather than replacements for it. See Content 
Creators Coal., Comments Submitted in Response to U.S. Copyright 
Office's Dec. 31, 2015 Notice of Inquiry at 27-30 (Apr. 1, 2016). 
Still others objected to the idea of voluntary agreements as 
unrepresentative and potentially undemocratic. See, e.g., Elec. 
Frontier Found., Comments Submitted in Response to U.S. Copyright 
Office's Dec. 31, 2015 Notice of Inquiry at 15 (Apr. 1, 2016); Tr. 
at 177:17-22 (May 13, 2016) (Michael Masnick, Copia Institute); Tr. 
at 171:8-13 (May 13, 2016) (T.J. Stiles, author).
    \41\ See Tr. at 173:18-174:16 (May 13, 2016) (Sean O'Connor, 
Univ. of Washington (Seattle)) (``[O]ne-size-fits-all can't work . . 
. [but] if you create a taxonomy that [covers the] different kinds 
of content industry and also different kind[s] of service providers 
. . . you can . . . [c]ome up with . . . standard technical measures 
for that particular subdivision area.'').
    \42\ See, e.g., Info. Tech. & Innovation Found., Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015 
Notice of Inquiry at 5 (Mar. 21, 2016) (``[T]he tools . . . used by 
online service providers to prevent and stop infringement vary 
widely. To address this problem, the U.S. Copyright Office should 
launch a multi-stakeholder working group to identify . . . [ways] to 
reduce infringement and lower compliance costs for all parties. For 
example . . . . standardize[d] notice-and-takedown processes across 
multiple service providers . . . .''); Tr. at 164:12-165:13 (May 13, 
2016) (Dave Green, Microsoft) (suggesting a ``summit attended 
primarily by engineers,'' potentially including ``government support 
or encouragement . . . to come up with ways to make it easy to 
report . . . a single work to multiple ISPs without having to send 
notices multiple times'').
    \43\ See, e.g., Tr. 68:22-69:12 (May 3, 2016) (Lisa Willmer, 
Getty Images); Tr. 18:10-21:6 (May 13, 2016) (Karyn Temple Claggett, 
U.S. Copyright Office; Keith Kupferschmid, Copyright All.).
    \44\ See Tr. 250:23-251:1 (May 3, 2016) (Todd Dupler, Recording 
Acad.).
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    Another potential solution proposed by some of the participants was 
legislative action to improve the section 512 safe harbor system, 
either by amending the statute itself, or adopting ancillary 
legislative reform proposals. The most frequently discussed potential 
legislative change was adoption of a notice-and-stay-down 
requirement.\45\ Although many participants suggested a pressing need 
for such a requirement, they have not defined what is meant by ``stay-
down,'' or what specific mechanisms might be utilized to comply with 
such a requirement. Some participants equated a notice-and-stay-down 
system with the use of a content filtering system like Content ID to 
pre-screen user uploads.\46\ Other participants seemed to equate a 
notice-and-stay-down system with a requirement for the ISP to search 
its site for identical files upon receipt of a takedown notice from a 
rightsholder.\47\ Many study participants, however, raised concerns 
about the possible adoption of a notice-and-stay-down requirement, 
citing both policy and practical/technological concerns.\48\
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    \45\ See, e.g., Indep. Film & Television All., Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015 
Notice of Inquiry at 4 (Apr. 1, 2016); Tr. at 230:11-23 (May 3, 
2016) (Matthew Barblan, Ctr. for the Prot. of Intellectual Prop.).
    \46\ See Council of Music Creators et al., Joint Comments 
Submitted in Response to U.S. Copyright Office's Dec. 31, 2015 
Notice of Inquiry at 3 (Apr. 1, 2016).
    \47\ See Authors Guild, Inc., Comments Submitted in Response to 
U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 14 (Apr. 
1, 2016) (``Here's an example of how `notice and stay-down' might 
work in practice: an author finds a pirated copy of her book on 
Google Play, offered by a user who has created an account called 
`Best Books.'. . . She sends a notice to Google, with an image of 
the fake cover and false publisher name, along with a URL for the 
pirated copy. Google takes the copy down a day later. The next day, 
the same book with the same cover is reposted on the site. From then 
on, Google should be required to automatically remove any instance 
of the entire book that anyone other than an authorized person (as 
provided by the copyright owner) posts on the site.'').
    \48\ See, e.g., Facebook, Inc., Comments Submitted in Response 
to U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 6 
(Apr. 1, 2016); Internet Archive, Comments Submitted in Response to 
U.S. Copyright Office's Dec. 31, 2015 Notice of Inquiry at 2 (Mar. 
22, 2016).
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D. Other Developments

    The Copyright Office is also seeking comments on three additional 
topics: judicial opinions that were not covered by the initial round of 
public comments, the disposition of Internet safe harbors under foreign 
copyright laws, and empirical research into the effectiveness, impact, 
and utilization of the current section 512 safe harbors.
    The Copyright Office is interested in hearing from the public about 
judicial decisions issued since the first round of public comments 
closed in April 2016, and how they may impact the workings of one or 
more aspects of the section 512 safe harbors. These include, in 
particular, recent decisions from the Eastern District of Virginia and 
the Second Circuit. In BMG Rights Management (US) v. Cox 
Communications, Inc., currently on appeal to the Fourth Circuit, the 
Eastern District of Virginia upheld a jury verdict that the defendant 
ISP was liable for willful contributory infringement based on its 
subscribers' use of BitTorrent to download and share copyrighted 
material.\49\ The court found that the defendant was not able to invoke 
the section 512(a) safe harbor as a result of its failure to reasonably 
implement a repeat infringer policy.\50\ In Capitol Records, LLC v. 
Vimeo LLC, the Second Circuit found that (1) the section 512(c) safe 
harbor extends to claims for infringement of pre-1972 sound recordings, 
which are protected under state, rather than federal, copyright laws, 
and (2) the fact that a defendant ISP's employee viewed a video that 
``contains all or virtually all of a recognizable copyrighted song'' is 
insufficient to provide the ISP with actual or red flag knowledge of 
infringement.\51\
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    \49\ BMG Rights Mgmt. (US) LLC v. Cox Commc'ns., Inc., No. 1:14-
cv-1611, 2016 WL 4224964 (E.D. Va. Aug. 8, 2016), appeal docketed, 
No. 16-1972 (4th Cir. Aug. 24, 2016).
    \50\ Id. at *4.
    \51\ Capitol Records, LLC v. Vimeo, LLC, 826 F.3d 87-98 (2d Cir. 
2016).
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    Similarly, while some of the initial written responses and 
roundtable discussions touched upon Internet safe harbor regimes 
outside the United States,\52\ the Copyright Office welcomes additional 
information about foreign approaches to the questions of ISP safe 
harbors, Internet piracy, and other relevant topics.
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    \52\ See, e.g., Ctr. for Democracy & Tech. & R Street Inst., 
Joint Comments Submitted in Response to U.S. Copyright Office's Dec. 
31, 2015 Notice of Inquiry at 19 n.79 (Apr. 1, 2016); Tr. 114:24-
115:6 (May 3, 2016) (Victoria Sheckler, Recording Indus. Ass'n of 
Am.); Tr. 325:16-20 (May 12, 2016) (Daphne Keller, Stanford Law Sch. 
Ctr. for Internet & Soc'y).
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    Finally, the Copyright Office is asking for the submission of 
additional analyses and empirical data related to the effectiveness, 
impact, and utilization of the current section 512 safe harbors. While 
several participants referenced a trio of recent studies performed by 
researchers at the University of California, Berkeley School of Law, 
others noted that a nucleus of authoritative studies and evidence is 
still lacking, overall.\53\ Given the economic importance of both the 
creative and technology industries to the U.S. economy, policymaking 
relating to the proper calibration of the costs and benefits of ISP 
safe harbors would benefit from a robust record of authoritative data. 
Potential subject matter for relevant submissions would include data 
relating to the number of improper takedown or counter-notices received 
by different classes of ISPs, information relating to the percentage of 
files that are re-uploaded following submission of a valid takedown 
notice, information regarding the effectiveness or ineffectiveness of 
takedown notices for combating different forms of piracy both here and 
abroad, the economic impact of policy choices relating to ISP safe 
harbors, and other topics.
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    \53\ See, e.g., Tr. at 255:11-12 (May 13, 2016) (Sean O'Connor, 
Univ. of Washington (Seattle)) (``[O]n the empirical research side, 
I do think we need to do a lot more . . . .''); Tr. at 260:3-4 (May 
13, 2016) (Fred von Lohmann, Google, Inc.) (``We need more and 
better data.'').
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II. Subjects of Inquiry

    The Copyright Office seeks further public input in the form of 
written comments responsive to this Notice and the issues discussed 
above, as well as the submission of studies and empirical data relevant 
to the subject matter of this study. Parties may also take this 
opportunity to respond to positions or data raised in the first round 
of comments and/or at the roundtables.

[[Page 78641]]

Participants should, however, refrain from simply restating positions 
taken at the roundtables or previously submitted in response to the 
First Notice; such comments have already been made part of the record. 
While a party choosing to respond to this Notice of Inquiry need not 
address every subject below, the Office requests that responding 
parties clearly identify and separately address each subject for which 
a response is submitted.

Characteristics of the Current Internet Ecosystem

    1. As noted above, there is great diversity among the categories of 
content creators and ISPs who comprise the Internet ecosystem. How 
should any improvements in the DMCA safe harbor system account for 
these differences? For example, should any potential new measures, such 
as filtering or stay-down, relate to the size of the ISP or volume of 
online material hosted by it? If so, how? Should efforts to improve the 
accuracy of notices and counter-notices take into account differences 
between individual senders and automated systems? If so, how?
    2. Several commenters noted the importance of taking into account 
the perspectives and interests of individual Internet users when 
considering any changes to the operation of the DMCA safe harbors. Are 
there specific issues for which it is particularly important to consult 
with or take into account the perspective of individual users and the 
general public? What are their interests, and how should these 
interests be factored into the operation of section 512?

Operation of the Current DMCA Safe Harbor System

    3. Participants expressed widely divergent views on the overall 
effectiveness of the DMCA safe harbor system. How should the divergence 
in views be considered by policy makers? Is there a neutral way to 
measure how effective the DMCA safe harbor regime has been in achieving 
Congress' twin goals of supporting the growth of the Internet while 
addressing the problem of online piracy?
    4. Several public comments and roundtable participants noted 
practical barriers to effective use of the notice-and-takedown and 
counter-notice processes, such as differences in the web forms used by 
ISPs to receive notices or adoption by ISPs of additional requirements 
not imposed under the DMCA (e.g., submission of a copyright 
registration or creation of certain web accounts). What are the most 
significant practical barriers to use of the notice-and-takedown and 
counter-notice processes, and how can those barriers best be addressed 
(e.g., incentives for ISPs to use a standardized notice/counter-notice 
form, etc.)?
    5. A number of study participants identified the timelines under 
the DMCA as a potential area in need of reform. Some commenters 
expressed the view that the process for restoring access to material 
that was the subject of a takedown notice takes too long, noting that 
the material for which a counter-notice is sent can ultimately be 
inaccessible for weeks or months before access is restored. Other 
commenters expressed the view that the timeframe for restoring access 
to content is too short, and that ten days is not enough time for a 
copyright holder to prepare and file litigation following receipt of a 
counter-notice. Are changes to the section 512 timeline needed? If so, 
what timeframes for each stage of the process would best facilitate the 
dual goals of encouraging online speech while protecting copyright 
holders from widespread online piracy?
    6. Participants also noted disincentives to filing both notices and 
counter-notices, such as safety and privacy concerns, intimidating 
language, or potential legal costs. How do these concerns affect use of 
the notice-and-takedown and counter-notice processes, and how can these 
disincentives best be addressed?
    7. Some participants recommended that the penalties under section 
512 for filing false or abusive notices or counter-notices be 
strengthened. How could such penalties be strengthened? Would the 
benefits of such a change outweigh the risk of dissuading notices or 
counter-notices that might be socially beneficial?
    8. For ISPs acting as conduits under section 512(a), what notice or 
finding should be necessary to trigger a repeat infringer policy? Are 
there policy or other reasons for adopting different requirements for 
repeat infringer policies when an ISP is acting as a conduit, rather 
than engaging in caching, hosting, or indexing functions?

Potential Future Evolution of the DMCA Safe Harbor System

    9. Many participants supported increasing education about copyright 
law generally, and/or the DMCA safe harbor system specifically, as a 
non-legislative way to improve the functioning of section 512. What 
types of educational resources would improve the functioning of section 
512? What steps should the U.S. Copyright Office take in this area? Is 
there any role for legislation?
    10. How can the adoption of additional voluntary measures be 
encouraged or incentivized? What role, if any, should government play 
in the development and implementation of future voluntary measures?
    11. Several study participants pointed out that, since passage of 
the DMCA, no standard technical measures have been adopted pursuant to 
section 512(i). Should industry-wide or sub-industry-specific standard 
technical measures be adopted? If so, is there a role for government to 
help encourage the adoption of standard technical measures? Is 
legislative or other change required?
    12. Several study participants have proposed some version of a 
notice-and-stay-down system. Is such a system advisable? Please 
describe in specific detail how such a system should operate, and 
include potential legislative language, if appropriate. If it is not 
advisable, what particular problems would such a system impose? Are 
there ways to mitigate or avoid those problems? What implications, if 
any, would such as system have for future online innovation and content 
creation?
    13. What other specific legislative provisions or amendments could 
improve the overall functioning of the DMCA safe harbor regime? Please 
be specific, including proposed statutory language as appropriate.

Other Developments

    14. Several study participants mentioned concerns regarding certain 
case law interpretations of the existing provisions of section 512. 
Additionally, two new judicial decisions have come out since the first 
round of public comments was submitted in April 2016. What is the 
impact, if any, of these decisions on the effectiveness of section 512? 
If you believe it would be appropriate to address or clarify existing 
provisions of section 512, what would be the best ways to address such 
provisions (i.e., through the courts, Congress, the Copyright Office, 
and/or voluntary measures)? Please provide specific recommendations, 
such as legislative language, if appropriate.
    15. What approaches have jurisdictions outside the United States 
taken to address the question of ISP liability and the problem of 
copyright infringement on the Internet? To what extent have these 
approaches worked well, or created problems for consumers, content 
creators, ISPs, or other stakeholders?
    16. Please identify any other pertinent issues that the Copyright 
Office may

[[Page 78642]]

wish to consider in conducting this study.

Submission of Empirical Research To Aid the Study

    Many commenters expressed a desire for more comprehensive empirical 
data regarding the functioning and effects of the DMCA safe harbor 
system. The Copyright Office is providing an extended deadline for 
submissions of empirical research on any of the topics discussed in 
this Notice, or other topics that are likely to provide useful data to 
assess and/or improve the operation of section 512.

    Dated: November 2, 2016.
Karyn Temple Claggett,
Acting Register of Copyrights and Director of the U.S. Copyright 
Office.
[FR Doc. 2016-26904 Filed 11-7-16; 8:45 am]
BILLING CODE 1410-30-P