Fixing Section 512 - Legislative Reforms for the DMCA Safe Harbor Provisions

Abstract

Since the implementation of the Digital Millennium Copyright Act (“DMCA”) in 1998, both the creative landscape and the way internet users interact with this landscape has changed as well. Over the last eighteen years, everyone from remix artists to independent creators to Hollywood has experimented and exploited various online media platforms in ways that were only distant imagination in 1998. With this experimentation have come unexpected consequences, affecting both the creative decisions and protection measures of large-scale copyright holders and individual artists alike. In this ever-changing landscape, there is a constant power struggle between those who have the ability to protect their content, and those who do not. The DMCA has provided a shield for innovation in intermediary technologies by protecting these technologies against legal claims for third party user infringement. However, there are deficiencies within section 512 of the DMCA and the flawed, out-of-court resolution process it creates.This article is based on work directly with clients who rely on section 512 and lawful content reuse, particularly internet users, smaller intermediaries, and independent creators. First, we address key problems with 17 U.S.C. § 512 and offer a proposal for legislative solutions to these problems. Specifically, we discuss the fact that section 512(f) is ineffectual at preventing copyright overreach and bullying. Second, we address the section 512 notice and takedown procedures, and the particular problem of large-scale automated takedowns. Specifically, we analyze the vagueness of the law as it pertains to a fair use consideration before sending a takedown notice. We also propose three legislative solutions that would clarify fair use in section 512(c)(3)(A)(v), impose a gross negligence standard for section 512(f), and clarify section 512(f) damages. Third, we focus on the significant power imbalance between large- and small-scale copyright holders, and the settling culture that results from the financial disparity between rightsholders and defendants. Fourth, we focus on the problem of the inaccuracies of mass automated takedowns, and reject “notice and staydown” style changes that would place extraordinary further burdens on internet users and service providers.