Nadler: Judiciary ‘Quite Possibly’ Exploring DMCA S. 512 Bill
The House Judiciary Committee is “quite possibly” exploring legislation to update Digital Millennium Copyright Act Section 512 (see 2006090063), Chairman Jerry Nadler, D-N.Y., told us Wednesday. “It’s not clear what the end game is,” Nadler said. “We’re undertaking a major review of it, and we’ll see” what develops. He hadn’t had direct conversations with ranking member Jim Jordan, R-Ohio, though staffs may have been in touch. “It’s a nonpartisan issue,” added Nadler.
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Section 512 established a notice and takedown system for platforms and copyright owners to address online infringement. It includes limitations on liability for platforms that are in compliance, as well as knowledge standards. Witnesses during Wednesday's Judiciary hearing said the balance between copyright owners and platforms is off and knowledge standards are blurred.
The section must be modernized, Rep. Val Demings, D-Fla., told us: Congress couldn’t have imagined how the internet would grow in the past 20 years, and the law needs to be updated to protect users, artists and creators. Members of both parties shared that opinion at the hearing. Two decades is an eternity for internet issues, said Jordan: The system must do better to protect copyright holder rights and public needs.
Nadler asked witnesses about copyright owners’ inability to monitor for infringement, given time constraints and the volume of illegal material. It’s virtually impossible because it requires working 24 hours a day, said songwriter Morgan Grace Kibby: She gave up because when something is taken down, it resurfaces.
Nadler asked if Congress can do anything to encourage adoption of more standard technical measures for takedowns. PLUS Coalition CEO Jeff Sedlik said Congress could enable a system for STMs with more effective rights information: The technology is readily available to communicate rights information and for parties to search.
Rep. Ben Cline, R-Va., asked if Congress should follow the Copyright Office recommendation to allow the CO to regulate development of STMs, which Cline said “seems heavy-handed.” Sedlik didn't necessarily support regulatory authority, saying there should be a means of recognizing STMs. He said that can be done through a coalition of stakeholders to determine whether it’s open and fair.
Achieving STMs in a way that complies with the statute is feasible, but the market has evolved in a way that stakeholders have yet to find consensus, said Computer & Communications Industry Association President Matthew Schruers: What technology will work for a video service won’t necessarily work for a text-based social media service.
Rep. Martha Roby, R-Ala., discussed streaming loopholes in which infringers are facing misdemeanors instead of felonies. Roby hoped to introduce draft legislation by year-end. All witnesses confirmed with Roby they’re supportive or neutral on the negotiated language.
It’s “absolutely appropriate” to look at this, because things has changed since DMCA, said Rep. Zoe Lofgren, D-Calif.: Beware unintended consequences. She asked about adjusting the red flag knowledge standard, which governs liability based on “objectively obvious” infringement.
Changing that standard could result in notice and stay down, which would be a move toward an EU model that would have serious First Amendment issues, said Library Copyright Alliance Counsel Jonathan Band: Small changes can have severe consequences. Demings also asked about red flag knowledge, questioning whether witnesses agreed with CO’s conclusion courts blurred the lines between actual knowledge and red flags.
The office’s conclusion is correct, said Copyright Alliance Vice President-Legal Policy and Copyright Counsel Terrica Carrington. Some court cases conflated red flag and actual knowledge and essentially removed red flag knowledge from the statute, she said: It further skews the balance between copyright holders and online service providers.
Rep. Andy Biggs, R-Ariz., asked what’s a good way to strengthen Section 512 F, which governs notice misrepresentations, to guard against “frivolous notices” without penalizing copyright owners who issue notices in good faith. Changing the subjective knowledge standard for what constitutes a “good faith” notice to an objective standard would be “far more enforceable,” said Public Knowledge Senior Policy Counsel Meredith Rose. Schruers noted there’s no penalty for frivolous notices, which results in spam.
RIAA noted CO’s finding that the “DMCA regime has fallen out of balance and become ‘tilted askew’ in favor of big tech platforms.” CEO Mitch Glazier said RIAA “stands ready to work on practical, concrete solutions with both the creative community and the technology platforms, including fast growing infringement hot spots like Twitter and Twitch.”
CO launched an informational webpage Wednesday. It said that “consolidates information and resources about various aspects of the DMCA, including section 512’s safe harbors and notice-and-takedown system, section 1201’s anticircumvention provisions, and section 1202’s copyright management information protections.”