Congress Should Promote Copyright Protection Technologies

On December 20, 2022, Register of Copyrights Shira Perlmutter submitted to members of the Senate Subcommittee on Intellectual Property the U.S. Copyright Office's report on standard technical measures (STMs) under Section 512(i) of the Digital Millennium Copyright Act of 1998 (DMCA). The 118th Congress should take up the Copyright Office's recommendation to amend language Section 512(i) to facilitate adoption of STMs. 

Under the DMCA, an online platform receives legal immunity from copyright infringements on its websites, provided that it meets certain conditions. One such condition is that platform "accommodates and does not interfere with standard technical measures." STMs are technologies that are "used by copyright owners to identify or protect copyrighted works," that have been "developed pursuant to a broad consensus of copyright owners and service providers" in an "open, fair, voluntary, multi-industry standards process," that are made available on reasonable and non-discriminatory terms, and that do not impose substantial costs or burdens on online platforms.

But the problem with Section 512(i) is that it has never worked. As the Copyright Office's report acknowledges, no technology has ever been designated an STM under the law. Online platforms continue to receive the benefit of legal immunity for infringements on their sites without having to accommodate any STMs – because there are no STMs. 

In its report, the Copyright Office recommended that Congress amend Section 512(i) by: (1) clarifying that terms broad consensus and multi-industry "require substantial agreement, but not unanimity, and only of those industries directly affected by an STM"; (2) replacing "developed" with "designated" in order to confirm that they qualify if they're designated by broad consensus of copyright owners and online platforms, even if they originally were developed by a narrower subset of stakeholders or emerged through proprietary processes; and (3) list factors for weighing whether particular measure imposes substantial costs and burdens on service providers. The Copyright Office concluded that these amendments to the law could help facilitate Section 512(i) and thus give the provision a better chance at finally working. Congress should take up the Copyright Office's recommendation and make those changes to the law. 

 

The Copyright Office stopped short of recommending that Congress amend Section 512(i) by establishing an administrative process by which the Office would recognize designated technological measures (DTMs). Online platforms would be required to accommodate and not interfere with DTMs as a condition for receiving legal immunity for copyright infringement. Such an administrative process would serve as a supplemental or alternative approach to the current, unsuccessful voluntary process for STMs. The report raised staffing and resource concerns with a DTM process. 

 

But Congress shouldn't let the Office's report be the last word on DTMs. The idea of a establishing a DTM process within the Office has merit and deserves further attention by Congress. DTMs were the subject of my April 2022 Perspective from FSF Scholars, "SMART Act Would Help Prevent Online Copyright Infringement." The SMART Act, which was introduced in the Senate and in the House of Representatives last year, would have authorized the Copyright Office to recognize DTMs. The SMART Act ought to be reintroduced in the 118th Congress and hearings should be held on DTMs in order to give the proposal the full consideration that it deserves. 

IPEC's 2020 Report Highlights Federal Agencies' Pro-Copyright Initiatives

On January 7, the Intellectual Property Enforcement Coordinator (IPEC) released its Annual Intellectual Report to Congress for 2021. The report summarizes the Trump Administration's IP enforcement strategy and policy initiatives across numerous federal agencies. 

The IP Report rightly extols the constitutional basis for copyrights as well as its vitality to American prosperity: 

Intellectual property is integral to our nation’s economic competitiveness and the growth of our innovative economy. For instance, copyrights are not only economically important, but a key part of our culture and society. A well-functioning copyright system is essential. The U.S. copyright system is grounded in our Constitution, and built on centuries of extensive jurisprudence, statutes and regulations. 

Among other things, the IP Report recounts the Trump Administration's elevation of the IPEC within the Executive Branch: 

[U]nder the leadership of President Trump and with the support of Congress, the White House Office of the U.S. Intellectual Property Enforcement Coordinator (IPEC) was established as a new component agency of the Executive Office of the President and part of the National Economic Council, ensuring that in the decades to come the IPEC will be there to advise the President, coordinate policy, and advocate for American interests abroad.

The IP Report also overviews the Trump Administration's efforts through foreign trade agreements such as USMCA and other diplomacy efforts to ensure Americans' copyrighted works and other IP are better protected overseas. And the report includes appendices describing IP protection and enforcement initiatives undertaken over the last few years by Executive Branch Departments, the Office of the U.S. Trade Representative, as well as the U.S. Copyright Office. The Justice Department's appendix, for instance, highlights notable criminal infringement prosecutions. And the Copyright Office's appendix discusses the Section 512 Study Report that was released in May 2020. 

 

The need for an overhaul of Section 512 is the subject of my January 12 Perspectives from FSF Scholars paper titled "Congress Should Hold Big Tech Accountable for Copyright Violations." This year, expect Free State Foundation scholars to have more to say about needed pro-IP policy actions. 

House Judiciary Committee to Review Report on DMCA's Section 512

On September 30 at noon EST, the U.S. House Judiciary Committee will hold a hearing on "Copyright and the Internet in 2020: Reactions to the Copyright Office's Report on the Efficacy of 17 U.S.C. § 512 After Two Decades."   

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.

…

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.