During the holidays, we did not get a chance to mention the draft legislation circulated by Senator Thom Tillis (R-NC) proposing changes in the Copyright Act, including the provisions of the Digital Millennium Copyright Act that created Section 512 of the Act – the safe harbor for user-generated content. The legislation also proposes other changes in the law, including changing the structure of the Copyright Office by making it an Executive Branch agency with substantive rulemaking authority, as part of the Commerce Department. The legislation (a full copy is available here and a summary can be found here) was not formally introduced in the waning days of the last Congress. Instead, Senator Tillis released it for public comment with the intent that the draft would be refined based on those comments before being formally introduced for legislative consideration. The Senator is seeking comments by March 5, 2021 from all interested parties to determine how the proposals would affect their interests. Press releases from his office indicate that he is seeking input from a broad array of interests, from the creative community to the tech companies that use copyrighted content to consumers who may find that the platforms they use might police content differently if there are changes in the law.
Reform of the DMCA safe harbor provisions has long been sought by copyright holders who feel that the insulation from liability afforded to tech companies who host content created by others has led to widespread infringement of copyrighted materials. We wrote at length about these issues in 2016 when the Copyright Office itself reviewed questions about user-generated content (see, for instance, our articles here and here). In many ways, the issues with Section 512 are similar to those about Section 230 of the Communications Decency Act – the extent to which big tech companies hosting user-generated content should be liable for that content and should take efforts to police content on their platforms. Section 230 provides insulation from civil liability other than that which arises under the intellectual property laws (so it protects online hosting companies from liability for matters including defamation or invasion of privacy – see our post here), while Section 512 provides insulation from liability for intellectual property infringement. However, the Section 512 procedures for obtaining insulation from liability are different from, and in many cases are more stringent than, those under Section 230.
Continue Reading Proposal for Reform of Copyright Act Released for Public Comment – Including Changes for the Safe Harbor for User-Generated Content, the Status of the Copyright Office, and Orphan Works