USCO’s Study Offers Hope for Reform of the “Notice and Takedown” Law, But Ducks the Issue on Site Blocking

The US Copyright Office (USCO) recently released its 200 page study on Section 512 of the 1998 Digital Millennium Copyright Act (DMCA), the legislation passed to implement US obligations under the WIPO (World Intellectual Property Organization) Copyright Treaty. This section of the DMCA is otherwise known and better described as the Online Copyright Infringement Liability Limitation Act, the essence of which are the notice and takedown provisions of the legislation. The USCO study is a result of five years’ work reviewing whether Section 512 is working effectively in terms of balancing the needs of internet platforms with those of creators. In a nutshell, Section 512 represents the “grand bargain” that was struck back in the late 1990s at the dawn of the digital age to facilitate the development of online platforms while protecting creators and rights-holders. 

In its most basic terms, the essence of the bargain was that internet platforms (called OSPs, or Online Service Providers in the legislation) would be provided immunity from prosecution for storing, caching, transmitting or linking to copyright infringing materials as long as they took reasonable measures to remove infringing materials when notified of infringements by rights-holders. This is the so-called “safe harbour”. There are many more elements to this, including the need for repeat infringer policies, the question of what constitutes “knowledge” of infringement, the process by which content is taken down and put back, and so on, but the basic arrangement was a compromise between copyright industries who wanted internet platforms to bear more responsibility for carrying or facilitating access to infringing content and internet companies who wanted to avoid the uncertainties and pitfalls of ongoing litigation for infringing material on their platforms. 

More than two decades later, those nascent internet companies (many of which did not even exist in 1998) have become corporate behemoths. Generally speaking Silicon Valley has been very satisfied with the way in which Section 512 has worked; creators, rights-holders and the content industries not so much. As the USCO Study puts it: 

“In the twenty-plus years since section 512 went into effect, the question has often been asked whether the balance that Congress sought has been achieved, particularly in the light of the enormous changes that the internet has undergone.”

“Roughly speaking, many OSPs spoke of section 512 as being a success, enabling them to grow exponentially and serve the public without facing debilitating lawsuits. 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. Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.” (emphasis added)

Given this conclusion, the USCO Study makes a number of recommendations as to how Congress could restore that balance. The debate on these recommendations is going to be drawn out, intense and fierce, and there is not the space here to get into the specifics. Many others will be writing on these questions over the coming months. Instead, I want to focus on just one issue that was raised in the study; that of blocking access by consumers in the US to offshore pirate streaming and download sites as a means to combat content piracy. The short-hand term for such measures is “site blocking”.

The USCO examines site blocking in the section of the Study (pp. 58-63) that looks at how other countries have tried to strike the balance between platforms and rights-holders when it comes to online infringement. It notes that “recent studies have shown that website blocking has operated as an effective tool in addressing digital piracy, despite the familiar misperceptions about its efficacy and alleged potential for abuse” and that “currently, more than 40 countries have either enacted or are under an obligation to enact some form of no-fault injunctive relief to block access to piracy sites”. This is all thoroughly documented. The USCO Study goes ono to examine the very effective systems in place in the UK, Australia, India, and the EU, regimes that I have commented on elsewhere (here, here and here). So far, so good.  But then we move to the section of the Study dealing with “Specific Findings and Recommendations”. 

Site blocking falls under the rubric of “Adoption of International Approaches”. Actually, given the non-recommendation that results, it should more accurately read the “non-adoption” of approaches used successfully by other countries. This section starts out all right;

“Some rightsholders also advocated for a more extensive system of no-fault injunctions to address websites primarily dedicated to piracy…many of these websites are located abroad, beyond U.S. jurisdiction, which insulates them from any likelihood of being forced to pay millions of dollars in statutory damages.  Rightsholders supporting the proposal of expanded injunctive relief report that such systems have been largely effective in addressing the most egregious cases of infringement.”

But then, after a discussion of the technical means to give effect to site blocking, the Study turns to the notorious anti-copyright lobby group EFF (Electronic Frontier Foundation) for its received wisdom; 

“EFF echoes a number of website blocking opponents when it asserts that website blocking systems ‘introduce dangerous mechanisms for Internet censorship, interfere with users’ fundamental rights, and, often, prove ineffective in solving the problem of online copyright infringement’.”

All of these assertions are effectively rebutted by footnoted studies cited by USCO but in its attempt at a “on the one hand, and on the other” approach, the Copyright Office’s “two-handed” strategy inevitably ends up going nowhere. 

After citing numerous research papers documenting the effectiveness of site blocking, the Study’s only recommendation is for “additional, dedicated study”. In other words, sit firmly on the fence. This is a disappointing outcome to what could have been an important opportunity to add a major tool to the US toolbox to combat online piracy. As I noted in a blog to mark World IP Day “Time to Forge a Global Solution to a Global Problem (Blocking of Pirate Streaming Sites)”, the US is fast becoming an outlier and the major holdout on instituting some form of site blocking. And it’s not as if the US doesn’t have a problem. The US is the leading source of visits to pirate streaming sites globally. It thus has the dubious distinction of leading Russia, China and Brazil as the home of the largest number of pirate streaming site users, with 1.2 billion pirate site visits in December 2019 alone.

Strangely, Section 512 already contains a provision–Section 512(j)–that could be used to obtain injunctions to effect site blocking. That was the original intention, as noted in a 2007 study published in the Vanderbilt Law Review, cited as a reference by the USCO; 

“The Foreign Site Provision may be used to stop the U.S. infringement that occurs through the use of foreign sites and services. Interpreted correctly, the provision may be used to block infringing sites as well as those that offer the programs used to infringe. After obtaining a judgment against just one direct infringer, a copyright holder may have a service provider enjoined from providing access to the infringing site. While blocking an infringing site will not stop copyright infringement through that site worldwide, it will stop infringement through that site in the United States, where 2005 album sales were at their lowest level since 1996. The Foreign Site Provision will not solve all the problems of copyright holders. Aside from handling continued worldwide infringement, copyright holders using the Foreign Site Provision will undoubtedly face unfounded claims of censorship and damage to innovation from their actions. Nonetheless, the provision was written to protect copyrighted works and should be used accordingly…The Foreign Site Provision is the next step in this ongoing fight against digital piracy and copyright holders should take it.”

Despite this call for use of Section 512 (j) and language in the legislation providing for site blocking injunctions, this provision has seldom if ever been used. The USCO Study examines this anomaly, and notes that rights-holders assert that they have not used the provision because “courts have interpreted the injunctive relief too narrowly” and it has become conflated with domestic takedown requests. Smaller rights-holders complain about the cost of pursuing injunctions. The platforms have argued that 512(j) is not needed or used because relief is available through the notice and takedown provision (although the USCO study noted that this is unbalanced and is not working as intended) and that expanding it could jeopardize their safe harbour protections. Whatever the reason, 512 (j) has effectively been a dead letter from the inception of the DMCA. 

So where does the USCO come out on this issue? While accepting that there may be some untapped potential in Section 512(j) to combat online infringement, it concludes that it’s unlikely that changes to this provision would play a significant role in restoring the balance between rights-holders and platforms. Yet at the same time USCO admits that courts have been overly narrow in their consideration of whether injunctive relief should be available to rights-holders under 512(j). Therefore it recommends that Congress monitor what is happening and consider (eventually), whether clearer language is needed. 

“For this reason, Congress may wish to monitor court decisions interpreting this provision and consider whether a reformulation is warranted.”

This again is a disappointment and effectively ducks the issue despite a clear conclusion that this element of the legislation is not working as originally intended by Congress. 

One cannot help but wonder why the USCO wandered into the site blocking minefield if it was not prepared to come up with any concrete recommendations. Perhaps this is explained by the fact that the Study’s terms of reference required it to respond to comments received. Some rights-holder organizations filed submissions arguing for a site blocking mechanism in the US through injunctive relief, while others, like the EFF, submitted opposing views. USCO tries to capture both viewpoints without providing any direction. 

Hearings have already begun on the Study, despite some platforms claiming that the COVID epidemic requires that examination of copyright issues be put off for another day. But it has already taken five years to produce the USCO’s 512 Study. Let’s hope it doesn’t take as long to come to grips with its recommendations. It would have been helpful to see concrete recommendations, of which there are many in the Study that are useful, also extend to enablement of site blocking in the US. That didn’t happen, so reform will have to come in some other way. In the meantime, an opportunity has been missed and the US remains a major outlier when it comes to using site blocking orders—either through the courts or via an administrative regime—to block access to offshore pirate streaming content. 

I am confident that the US will eventually get there. The question is “when”. From a rights-holder perspective, the sooner this happens, the better. 

© Hugh Stephens 2020. All Rights Reserved.