Free State Foundation President Randolph May and I addressed the need for updating Section 512 of the Digital Millennium Copyright Act in our new book, Modernizing Copyright Law for the Digital Age - Constitutional Foundations for Reform. Section 512 includes a "notice-and-takedown" provision that allows complying online platforms to receive safe harbor from legal liability when their users upload copyrighted content to their websites. We offered further analysis of this topic -- and the findings of the U.S. Copyright Office -- in our June 2020 Perspectives from FSF Scholars paper, "Copyright Office Report Should Spur Modernizing the DMCA." As our Perspectives paper stated:
The Copyright Office's report is a helpful starting point for legislative reforms needed to better protect movies, TV shows, sound recordings, and other content from infringements that cost U.S. copyright owners hundreds of millions of dollars each year. A series of amendments to Section 512 are needed to correct court decisions that have put undue burdens on copyright owners, departed from common law standards for secondary liability, and reduced accountability of online service providers for infringing content posted by users of their sites.
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The sweeping number of changes that ought to be considered to modernize Section 512 makes a strong case for a legislative overhaul of the DMCA. Congress should exercise its prerogative to explore reforms beyond those contained in the report, consistent with the Constitution's entrusting Congress with the power to secure copyrights. Such reforms should include, for instance, a more widespread "notice and stay down" requirement when copyright owners submit formal takedown notices and future postings of that same infringing content are posted on the same sites.
For more details, check out our new book and our Perspectives paper.
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