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US should wait to see how EU reforms work out before radically changing its safe harbour, says US Copyright Office

By | Published on Thursday 2 July 2020


The US Copyright Office has said that American lawmakers should probably wait and see how reforms in Europe pan out before making any radical change to the copyright safe harbour contained in the country’s copyright laws. It was responding in particular to the question over whether or not safe harbour protection should be dependent on providing not just a takedown system for copyright owners, but a takedown-and-stay-down system.

The safe harbour, of course, is the principle that says that internet companies cannot be held liable for any copyright infringing content that their users distribute over their networks, providing said companies have a system in place via which copyright owners can have infringing content removed. The music industry has various issues with the safe harbour, including the range of services that are able to claim protection under the principle, and also the quality of the takedown systems safe harbour dwelling companies operate.

One common complaint in the latter domain is that as soon as a copyright owner has one piece of infringing content removed from any one platform, the same bit of content reappears somewhere else on the same platform. Many music companies argue that in order to qualify for safe harbour protection internet firms should have to operate not just a takedown system, but a takedown-and-stay-down system. So once a piece of infringing content has been removed for the first time, the platform spots and blocks any subsequent re-uploads.

The US Copyright Office recently published a long-awaited report on the safe harbour under American copyright law, which originates in the 1998 Digital Millennium Copyright Act. It said that the US safe harbour probably needed a bit of fine-tuning to make it workable for the 2020s.

Two members of the intellectual property subcommittee in US Congress that has been recently scrutinising the DMCA – Thom Tillis and Patrick Leahy – responded to that report by asking the Copyright Office a series of questions. That included: what did the Office think about takedown-and-stay-down. Responding, the Office said that “there are significant questions that would need to be answered before adoption of a stay-down regime”.

Among those questions are “what level of ‘match’ is required to invoke the stay-down requirement? Must it be a file that is virtually identical to the file for which the takedown notice was sent? Or is a stay-down obligation triggered simply by the fact that the same work appears in future uploads, even if subsequent uploads otherwise differ in significant respects from the material that was the subject of the takedown notice?”

Illustrating that point future, the Office said in its reply to the Congressmen: “Would a takedown notice for infringing copies of the music video for ‘Purple Rain’ likewise require removal and stay-down of videos where the song is used as background music for different content? Is a takedown notice directed at material that includes a full-length copy of the work sufficient to require takedown of a one minute sample of the song?”

The choice of a Prince track in that question is likely deliberate. One of the key test cases on the safe harbour takedown process under US law involved a video of a young child dancing to a Prince track that was removed at the request of the musician’s publisher.

It was then ruled that that video should never have been taken down because the use of a snippet of the Prince track had been ‘fair use’ under US law, and Universal Music Publishing should have considered that before issuing the takedown.

That case dated from the early days of YouTube before the Google site had really developed its takedown-and-stay-down system Content ID. At one stage judges noted that the world had moved on, posing the question as to whether an automated takedown-and-stay-down system would be able to consider a concept as tricky and nuanced as fair use. And if not, what did that mean for the rule that copyright owners must consider fair use before issuing a takedown notice?

Although they raised that question during the ‘Dancing Baby’ case, the judges then decided they didn’t need to answer it, because it wasn’t relevant to that actual legal battle.

However, if takedown-and-stay-down systems became an actual legal obligation, that question might need to be answered. As would other related questions also included in the Copyright Office’s response to Tillis and Leahy.

Such as: “How do [platforms] comply with stay-down requirements while also protecting legitimate speech? Is [takedown-and-stay-down] feasible using current technologies? Are there particular types of content or works that [platforms] would be unable to adequately identify in order to comply with a stay-down requirement?”.

Then there is the international dimension of all this. Last year’s EU Copyright Directive includes safe harbour reform, of course, although specifically related to user-upload platforms.

For the music industry, the takedown-and-stay-down issue extends beyond YouTube-style services. Indeed, through Content ID YouTube has done more to develop a takedown-and-stay-down system than most. To that end, music industry lobbyists in Europe are likely to try and get a wider takedown-and-stay-down obligation introduced into law via the platform responsibility discussions that are ongoing in the UK and EU.

Nevertheless, says the US Copyright Office, American lawmakers should probably see how last year’s directive is actually implemented by EU member states, and how those reforms then work out, before making any radical changes to the DMCA safe harbour, including in the takedown-and-stay-down domain.

“Given the international nature of the internet, there is a risk associated with being the ‘first mover’ for adoption and implementation of such a requirement”, the Office wrote. “Were the United States to adopt its own implementation method and requirements at the same time as, and without reference to, those adopted by the EU, it would risk placing requirements on [platforms] that are either incompatible or otherwise in tension with the EU’s requirements”.

“Incompatible obligations could pose a significant adverse economic impact for US-based [platforms] attempting to serve both the domestic and the foreign market”, it went on. “It may, therefore, be prudent to wait and see whether the EU ultimately coalesces around one or two models, and then evaluate the relative success or failure of those models against the current notice-and-takedown system in the United States”.