The U.S. Congress plans to update the Digital Millennium Copyright Act (DMCA) later this year. A report by the U.S. Copyright Office suggests that this update may enhance protections for rights holders. The Copyright Office determined that the DMCA has proved effective in most areas, except for the safe harbor provision found in Section 512. This provision allows online service providers to avoid liability for copyright infringement if they take prompt steps to take down infringing material upon request. In proposing to tighten the safe harbor provision to better shield rights holders, the Copyright Office disappointed online service providers and user advocacy groups, who believe that a generous safe harbor is critical to protect fair use of copyrighted material and prevent harassment of social media users. By contrast, the entertainment industry has endorsed the changes that the Copyright Office recommended.
The Copyright Office proposed relatively minor adjustments to Section 512. Some of these changes would allow corporations to issue takedown notices more efficiently. The Copyright Office noted that online copyright infringement remains rampant, despite the steady flow of takedown notices submitted under the current system. In addition, the Copyright Office urged Congress to impose harsher penalties for misrepresentations in takedown notices and counter-notices, and it suggested that Congress clarify the language of the DMCA to reduce the discretion of online service providers in determining which users are repeat infringers. (Online service providers are legally required to terminate the accounts of repeat infringers.) The Copyright Office also recommended that Congress provide further guidance regarding situations in which an online service provider falls outside the safe harbor protections, due to ignoring infringement on its platform. Additional revisions suggested by the report include adjustments to the subpoena rights of copyright holders.
The DMCA dates from 1998, before the advent of most major online service providers. Section 512 played a critical role in launching their platforms. Thus, changing this section of the copyright law may dramatically affect the operations of service providers, depending on the scale of the reforms. The Copyright Directive in the European Union imposes much stricter requirements on service providers than does U.S. copyright law, and some members of Congress may consider following the EU example.
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