Copyright experts are speaking out against a recent proposal from the U.S. Copyright Office, arguing that it will strip companies of vital protections that shield them from liability for copyright infringement.
|Safe harbor protections
At issue is Section 512 of the Digital Millennium Copyright Act, which protects service providers from liability for copyright-infringing activities on the part of users. To receive these so-called safe harbor protections, one thing a service provider has to do is register an agent to receive takedown notices with the Copyright Office.
On May 25, the Copyright Office issued a Notice of Proposed Rulemaking concerning a new submission process to designate these agents. At first glance, the proposal was noncontroversial, calling for the implementation of an electronic registration system and proposing reducing the fee to designate an agent from the current price of at least $105 to only $6.
|The catch
The catch — which came by way of a footnote — is that, in order to pay for the new electronic database while lowering fees, registrants have to renew their registration every three years. Under the current regime, service providers only register once and pay a one-time fee.
Despite that the Copyright Office only asked for comments on the fee change, a handful of comments were submitted in response to the NPRM on or shortly before the June 24 deadline that expressed concern about the agent renewal condition. One such submission from the Electronic Frontier Foundation (EFF) with 11 other organizations and internet law expert Eric Goldman noted that, because of the new condition, a service provider could “be exposed to a massive — and potentially business-ending — damage award that could reach millions (or even billions) of dollars for forgetting to renew or maintain the agent designation on time.”
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|3-year renewal requirement defeats safe harbor
EFF Legal Director Corynne McSherry says adding another condition to those already imposed on service providers that want Section 512 protections could have major consequences. “For many, many companies, the [current] requirements aren’t so very difficult to fulfill, and what you get in exchange is a tremendous shield from liability,” McSherry says. “But to require people to renew every three years is just one more burden that well-meaning companies may forget to comply with. … Suddenly we’d have a trap for the unwary.”
Aaron Schur, senior director of litigation at Yelp, says adding the renewal requirement is concerning because it defeats the purpose of the safe harbors.
|Unintended consequences
“The safe harbors are there to limit the ability of copyright claimants to abuse the copyright laws, and this [condition] would have a tendency to weaken the safe harbor because people may not remember to comply on a regular basis,” he says. “If there are obstacles put in place, such as a requirement that you have to register every three years, or you’re not going to get the benefit [of the safe harbors], that’s the sort of thing that could have the unintended consequence of forcing websites to take down content just for not checking the box.”
As for what’s next, McSherry says she expects the Copyright Office to issue a ruling on the NPRM at some point in the fall. She adds that she hopes the comments will at least cause them to take a pause to consider the high risks associated with the loss of Section 512 protections because of something like a clerical error. “Safe harbors are really important protections that are kind of what the internet is built on, so we really don’t want to make them harder to get,” she says.
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