NYIPLA Submits Letter to the House Judiciary Committee Identifying Three Issues Raised in the Copyright Office's Report
By: Mitchell Stein
On August 20, 2020, The NYIPLA will be participating in a bar association roundtable organized by the US House Judiciary Committee to discuss a report issued by the Copyright Office on May 21, 2020 regarding the Digital Millennium Copyright Act (DMCA). In the report, the Copyright Office concluded that the Congressional intent behind the DMCA had been “tilted askew” and that the DMCA was in need of reform in various areas. The issues in dispute pit the interests of, among others, the online service provider community, including social media companies, against the interests of content providers, led by Hollywood and the music industry.
In preparation for the roundtable, the NYIPLA submitted a letter to the House Judiciary Committee on Friday, July 24, identifying three issues raised in the report that should be discussed at the roundtable. Those issues were:
1.The Report’s recommendation that the knowledge requirement of the DMCA, which has been interpreted narrowly to protect service providers under the safe harbor as long as they do not have knowledge of the specific infringement, be expanded to include “red flag knowledge” of the infringement. The NYIPLA proposed that a compromise should be reached between the current requirements of requiring online service providers to act only in the face of known and identified infringements and requiring service providers to act on the basis of “red flag” knowledge.
2.The Report’s recommendation that Congress consider legislation addressing section 512’s requirements that service providers establish and implement policies for addressing repeat infringers, as the standards are currently so low as to be impractical, thereby placing undue burdens on rights holders. The NYIPLA acknowledged that reform was needed in this area, as the current “Whack-a-Mole” approach to addressing repeat infringers does not serve the Congressional intent that repeat infringers be dealt with fairly and effectively.
3.The Report’s recommendations regarding what information should be required to be included in takedown notices (for example: do all infringements need to be identified or just representative examples), and whether and under what conditions a service provider’s use of takedown notice forms, which may require a great detail of information to complete, places an undue burden on rights holders that is not required by the statute. The NYIPLA recommended that the DMCA should set forth the specific requirements for what information must be included in take down notices, with online service providers having only limited discretion in requiring additional information.
Click HERE to read the full letter.