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US Copyright Office finally publishes its safe harbour report, music industry sets out its copyright gripes

By | Published on Friday 22 May 2020

US Copyright Office

The US Copyright Office has finally published the report based on its review of the safe harbour that sits in America’s Digital Millennium Copyright Act. It doesn’t recommend radical changes to that safe harbour but says that Congress might want to do some fine-tuning to better balance the interests of technology companies and copyright owners. The music industry, meanwhile, has used the report’s publication as a good reason to put out its 2020 copyright gripe list.

The copyright safe harbour, of course, is the principle that says that internet companies whose customers use their networks and servers to infringe copyright cannot be held liable for that infringement, providing they remove any infringing content as soon as they are made aware of it. The principle is found in many copyright systems. In the US it originates in that DMCA, while in the European Union it came from an e-commerce directive.

The music industry has two big grievances with the safe harbour. First, it argues that many safe harbour dwelling websites don’t have efficient enough systems via which copyright owners can request infringing content be removed. Yes, copyright owners can have any one specific piece of infringing content taken down, but it invariably pops back up again on the same website pretty quickly. The copyright owners would prefer a system where, once that specific piece of content has been taken down, it stays down.

The second big grievance is the range of internet operations that can claim safe harbour protection. In particular, the music industry has argued that safe harbour should not apply to user-upload platforms that not only allow users to upload audio or video, but which then reaggregate that content through search tools, home pages and playlists, basically become online radio or TV networks in the process. The lawmakers that came up with the safe harbour in the 1990s can’t possibly have intended for that kind of internet company to have safe harbour protection, the argument goes.

The music industry’s beef with safe harbour is often presented as a battle specifically with YouTube. Actually, when it comes to takedown-and-stay-down, YouTube’s Content ID – for those that have access to it – is a pretty good takedown system. In that domain music companies are much more like to moan about Google’s search engine than its video site. But when it comes to the “this site shouldn’t even have safe harbour protection” argument, the music industry has often been talking about YouTube. Though not only YouTube.

In Europe, of course, an attempt has been made to reform the safe harbour, specifically to increase the liabilities of user-upload sites that seek safe harbour protection. That reform is in article seventeen of last year’s European Copyright Directive. Said article is still being implemented, so it’s too soon to say what impact it will have. But – while the final edit of article seventeen was very much a compromise – many in the music industry are confident it will overcome some of the issues, in particular the fact that safe harbour weakens the negotiating hand of music rights owners when discussing licensing deals with websites like YouTube.

In the US, the Copyright Office instigated a review of the safe harbour right at the end of 2015. Submissions were invited from copyright owners and technology companies. Twice, with a second call for submissions in late 2016. It resulted in a short-lived “safe harbour is the problem, YouTube is evil” type campaign within the American music industry, but then most attention turned to copyright reforms in Europe while everyone waited for the US Copyright Office to process its submissions and publish a report. Now, finally, it has.

With the safe harbour – what is sometimes referred to as “section 512 of title 17 of the United States Code” – Congress sought to balance the needs of “online service providers with those of creators”, the Copyright Office says in its new report. From its call for submissions in 2015 and 2016, “the Office received dramatically varied opinions on whether section 512’s intended balance has been achieved”, it adds.

Somewhat unsurprisingly, many internet companies “spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits”. Whereas “rightsholders reported a markedly different perspective, noting grave concerns with the ability of individual creators to meaningfully use the section 512 system to address copyright infringement and the ‘whack-a-mole’ problem of infringing content reappearing after being taken down”.

But what does the Copyright Office itself think? “Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’s original intended balance has been tilted askew”. However, “the Office is not recommending any wholesale changes to section 512, instead electing to point out where Congress may wish to fine-tune section 512’s current operation”.

The report then runs through an assortment of ways that Congress might want to consider fine-tuning the safe harbour, most of which would address copyright owner concerns. That includes clarity on what kinds of online services are eligible for safe harbour protection; on what a safe harbour dwelling company’s repeat infringer policy should say; on what constitutes knowledge of infringement on a safe harbour dweller’s part; on what information a copyright owner should provide in a takedown notice; and on what happens if a takedown system is abused.

Along the way it also considers the approach different courts in the US have taken when dealing with safe harbour cases, especially where courts have struggled to interpret the law, or have been somewhat inconsistent in that interpretation.

In particular it talks about the ‘Dancing Baby’ case involving Universal Music Publishing and a Prince track, which considered whether a copyright owner must consider the principle of ‘fair use’ before issuing a takedown. The Copyright Office expresses some concern over the ruling in that case and says Congress should monitor the impact of said ruling and “consider any clarifying statutory language that may be necessary”.

Whether Congress listens to any of this remains to be seen, though there have already been discussions on possible safe harbour reform this year instigated by the Subcommittee On IP in the Senate. The music industry will be hoping that this report finally being published might provide an impetus to get safe harbour reform properly onto the agenda in Washington. And if and when it’s on that agenda, the music industry’s lobbyists will likely use the opportunity to call for reforms beyond those proposed by the Copyright Office in the new report.

To what extent those calls will replicate what was lobbied for and achieved in Europe remains to be seen. It may partly depend on what happens once article seventeen is actually implemented in EU countries and whether it is deemed to have dealt with any of the issues.

Though at the same time, many user-upload platforms are evolving their businesses in a way that means they can no longer rely on safe harbour anyway, by offering in-built music libraries and editing tools. Which means the next phase of safe harbour campaigning may focus more on forcing social media and search engines to get better at takedown-and-stay-down, or it could be live streaming rather than user-upload platforms that are taking most of the heat.

We will see. But for now an assortment of music industry organisations in the US have together published a neat list of their top three gripes, all of which are linked – albeit loosely in some cases – to the copyright safe harbour. Basically, they want take-down-and-stay-down, an end to stream ripping, plus more and wider access to Content ID-style monitoring tools.

“Platform accountability is achievable and mutually beneficial for fans, music creators and digital distribution partners alike”, those industry groups said yesterday. “As this report makes clear, the current system is broken – especially when it comes to so-called ‘user-upload platforms’. To succeed, platforms must be made accountable participants in the music ecosystem. But the good news is that many of these issues can be addressed by the big technology platforms who exploit music, including by applying already widely available technologies”.

Going on to its top three gripes/wishes/demands, they said that ‘takedown’ should mean ‘stay down’. “User-upload platforms should put an end to the ‘whack-a-mole’ era by implementing meaningful, robust processes to ensure that once infringing content is taken down, the same infringing content does not immediately re-appear on the same service. To be an effective remedy, ‘takedown’ must mean ‘stay down'”.

Next, technology firms should set out to “thwart stream-ripping services”, ie the tools that allow people to turn temporary streams into permanent downloads.

The industry groups say: “On-demand video streaming services can prevent stream-ripping services from circumventing their protective systems by ensuring that their technological protection measures stay ahead of the stream-ripping services, and by aggressively monitoring when and how their technical protections are being breached. Furthermore, search engines should make every effort not to link to such services”.

And finally, “social media platforms should provide tools that allow copyright owners – regardless of their size – to monitor infringement of their own works and establish automated and scalable notice and takedown systems like many other user-upload platforms already have”.

With COVID-19 still a major distraction and a Presidential election on the horizon in the US, a lot of this could get kicked into the long grass. And, of course, if safe harbour reform does formally appear on the Congressional agenda, the tech sector’s lobbying machine will be ramped up to the max.

They’ll probably start by saying that the Copyright Office is prone to side with copyright owners, that there has – in fact – been no “tilting” and, therefore, there’s no need for even some moderate fine-tuning. The music industry, meanwhile, will hope that – by unifying like it did in Europe – maybe this time it can successfully take on the tech lobby’s machine.

In the meantime, you can read the full safe harbour report, if you so wish, here.