US Copyright Office’s DMCA Tweaks Trigger ‘Internet Disconnection’ Concerns

After several years of public consultations and stakeholder meetings, the US Copyright Office issued its review of the DMCA’s safe harbor provisions.

The report doesn’t propose any major overhauls of the DMCA. Instead, it aims to fine-tune some parts, to better balance the interests of copyright holders and online service providers (OSPs).

More drastic suggestions were put on the backburner. Those include pirate site blocking and a ‘takedown and staydown’ requirement for online services, which would require mandatory upload filtering.

Not Everyone Is Happy with the Report

The Copyright Office’s attempt to create more balance is well-intended but not everyone is pleased with it. For example, a statement released by several prominent music industry groups, including the RIAA, shows that they wanted and expected more.

The music groups provide a list of things big technology platforms could do to address the concerns raised in the report. However, their first suggestion is to ensure that ‘takedown’ means ‘staydown.’ That’s one of the things the Copyright Office explicitly did not recommend, as there may be a negative impact.

On the other side, there was a lot of critique of the apparent disregard for a key party in the DMCA debate, the public at large. The Copyright Office frames DMCA issues as a ‘copyright holders’ vs. ‘online service provider’ debate, but the voice of the public is glanced over at times.

Looking at the suggestions in the report, however, it’s clear the public will be heavily impacted by the proposed changes. This is also a problem signaled by some digital rights groups.

Disconnecting Alleged Copyright Infringers

According to Public Knowledge, the Copyright Office’s recommendations are ill-considered. The digital rights group believes that the report heavily favors copyright holders while totally overlooking the interests of millions of regular Internet users.

The proposals don’t only harm the general public, they also fail to recognize copyright abuses, including false DMCA notices, the group adds.

“In a contentious debate, it comes down on the same side (copyright holders) in nearly every instance, and disregards ample evidence that the DMCA is often abused by people looking to censor content they have no rights over,” the group notes.

Public Knowlege takes offense to the Office’s comments regarding repeat infringers. These stress that people’s Internet access be disconnected based on allegations of copyright infringements by copyright holders.

“Astonishingly, the Copyright Office buys into the idea that users should be subject to being cut off from internet access entirely on the basis of allegations of copyright infringement,” Public Knowledge writes.

The DMCA text is currently not clear on whether allegations are good enough, but the Office’s recommendation is backed by an Appeals Court order. Nonetheless, Public Knowledge doesn’t believe it should be law.

“Congress should not be making it easier for private actors to completely and unilaterally remove a person’s ability to access the internet,” the group writes. “The internet is not just a giant copyrighted-content delivery mechanism; it is the fundamental backbone of modern life.”

Public Knowledge is not alone in its criticism. The Electronic Frontier Foundation (EFF) also stresses that the interests of the public are largely ignored, tilting the “balance” towards copyright holders.

“For example, the proposal to terminate someone’s Internet access—at any time, but especially now—is a hugely disproportionate response to unproven allegations of copyright infringement,” EFF wrote on Twitter.

Copyright Office Cherry-Picking?

It’s worth noting that court decisions are not always leading to the Copyright Office. The Appeals Court previously ruled that a repeat infringer policy doesn’t have to be written down, for example, but the Office now suggests updating the DMCA to change this.

Requiring a written repeat infringer policy, contrary to the Appeal Court ruling, would favor copyright holders. The same is true for confirming the other Appeal Court ruling, which concluded that ISPs must deal with repeat infringers based on allegations alone.

This doesn’t mean that the Office is always taking one side, however. As mentioned earlier, the report also denied the top demands from copyright holders by not recommending site blocking and ‘takedown – staydown’ policies.

Disagreement Remains

By highlighting these positions from two opposing sides of the debate, it is clear that the Copyright Office report includes positive and negative elements for all stakeholders. While it attempts to create more balance, disagreement remains.

This has also been the general theme of the DMCA revision debate over the past several years. The demands from one side usually hurt the other, and vice versa. It took a long time before the Office finalized its views and given what’s at stake, pushing any changes through Congress is not going to be easy.

From: TF, for the latest news on copyright battles, piracy and more.


Russia Adopts Law to Block Pirate Apps and if Necessary, App Stores Too

As torrent indexes and streaming portals continue to provide access to copyrighted content, there has also been a considerable increase in the availability of software applications that facilitate access to movies, TV shows and similar content.

These tools, which can be installed with minimal effort, often act as aggregators of content and presenting it in easy-to-use interfaces on mobile phones, tablets and similar devices. While the sources for this content can be handled with traditional takedown and blocking mechanisms, authorities in Russia have been seeking to take direct action against the apps themselves.

Following its third reading, Russia’s State Duma adopted new legislative amendments yesterday that will allow them to do just that.

How the New Law to Tackle Piracy Within Apps Will Work

After receiving a complaint from a copyright holder, local telecoms watchdog Roscomnadazor will have 72 hours to determine where the allegedly-infringing application is being hosted. This might typically be an official repository such as Google Play or Apple’s App Store but could also be a third-party distributor or website offering a similar service or functionality.

Roscomnadzor will then send an infringement notice to the platform informing it of the alleged violation while highlighting a requirement to limit the availability of the content identified in the notice. The app distribution platform will then have 24 hours following the receipt of the complaint to notify the application’s owner that an infringement complaint has been filed.

Within 24 hours of the developer being made aware of the details of the complaint, they will be required to prevent the specified content from being made available in their application. If they do not comply, the responsibility to prevent ongoing infringement will then fall back on the app distribution platforms themselves, requiring them to stop distributing the entire application.

In the event that the application distributor fails to take the mandated removal or blocking steps, Roscomnadzor will then be able to issue an instruction to have the distributor itself blocked by all Internet service providers in Russia, thereby preventing consumers from having access to the platform in its entirety.

“If the owner of the information resource [Google Play, Apple’s App Store] has not limited access to the software application, the information necessary for taking measures to restrict access to the software application is sent to telecom operators,” an announcement from the State Duma reads.

Last-Ditch Efforts to Soften the Law Were Ignored

In the original draft of the legislation, responsibility for blocking access to pirated content was limited to the developers/operators of the allegedly-infringing applications themselves. However, subsequent amendments expanded liability to application distribution platforms too.

Several trade groups made last-minute appeals to the State Duma requesting that measures to block distribution platforms be removed from the legislation but their calls went unheeded. As a result, there are now fears that key app distribution players could be negatively affected by the measures due to additional requirements to monitor for the alleged infringements of third-parties.

After two years in the making, the new law will be signed by President Vladimir Putin and into force on October 1, 2020.

From: TF, for the latest news on copyright battles, piracy and more.


US Copyright Office’s Proposed DMCA Fine-Tuning Could Be Bad News for Pirates

In 2016, the U.S. Government launched a public consultation to evaluate the impact and effectiveness of the DMCA’s Safe Harbor provisions.

In response, the Copyright Office received a lot of input, including more than 92,000 comments. Various rightsholders weighed in, as expected, and so did technology companies, law scholars and civil rights groups.

This week, the Copyright Office released its long-awaited report (pdf), summarizing the public input, while offering several recommendations to lawmakers on how to move forward.

The overall conclusion is that there’s a clear discrepancy between how copyright holders and online services view the DMCA. Online service providers (OSPs) are quite pleased with it, while rightsholders see it as outdated and ineffective.

This imbalance comes as no surprise. However, the task of the Copyright Office is to find a way forward. To that end, the report provides some guidance to ‘fine-tune’ a variety of issues but doesn’t propose any broad changes.

“The Office is not recommending any wholesale changes to section 512, instead electing to point out where Congress may wish to fine-tune section 512’s current operation in order to better balance the rights and responsibilities of OSPs and rightsholders in the creative industries.”

This fine-tuning also applies to the ‘repeat infringer’ issue, which has become a hot topic in recent years. Repeat infringers are at the center of several lawsuits between copyright holders and ISPs, which most recently resulted in a billion-dollar damages award against Cox.

The Copyright Office recognizes that there is quite a lot of uncertainty in this area. One problem is the lack of transparency, as ISPs are not required to have a published, or even written repeat infringer policy.

A repeat infringer policy that exists merely in someone’s head is good enough at the moment. This is not ideal, and Congress could address this.

“Given the broad scope of the safe harbors, having a clear, documented, and publicly available repeat infringer policy seems like the appropriate minimum requirement in order to comply with the statute, as well as to act as a deterrent to infringement,” the Office notes.

In addition, it also recommends Congress to provide more clarity on when a user’s account should be terminated. There is currently no clarity on when ISPs should take action and if that requires a takedown notice from a copyright holder.

Another very relevant topic addressed in the report highlights the current restrictions on DMCA subpoenas. At the moment, these suboenas are regularly used to request details of website owners from third-party intermediaries such as Cloudflare or domain name registrars.

These subpoenas are cheap and quick, as they are signed off by a court clerk and don’t require any oversight from a judge. However, they come with restrictions as well, as courts previously concluded that they can’t be used to identify pirating subscribers.

The Copyright Office wonders whether this should change. In mentions that, at the moment, the tool is rarely used, also because the current interpretation doesn’t allow it to be used against regular ISPs to identify pirating subscribers.

“This provision has proven to be little-used by rightsholders, in part because of how restrictively courts have interpreted it and in part because the information gleaned from such subpoenas is often of little use,” the Office notes.

The report recommends Congress to clarify the language of this section. While it understands that some companies might abuse a broader interpretation to extract settlements from file-sharers (i.e. copyright trolls), that shouldn’t hold back lawmakers from considering it.

[“T]he Office does not countenance stripping rightsholders from any realistic ability to enforce their rights, even if doing so may prevent some bad actors from abusing the primary mechanism by which rightsholders may vindicate those rights,” it notes.

The Copyright Office says that it favors “a legislative fix” to address ambiguity in this section of the DMCA to clarify whether this applies to regular ISPs, or not. At the same time, however, the “litigation tactics” of “certain companies” deserve a proper discussion.

“To properly address these concerns, however, the conversation should focus on the actual tactics at issue, rather than using section 512(h) as a proxy to wage those battles,” the report reads.

This is an important recommendation, as making DMCA subpoenas available to identify pirating subscribers will change piracy enforcement drastically. The RIAA tried to use this method over a decade ago and failed. However, if the DMCA language is changed, rightsholders could go after hundreds of thousands of pirates at minimal cost and without judicial oversight.

The report runs to nearly 200 pages and it’s impossible to summarize it all. What is worth mentioning, however, is that the Copyright Office is not sold on two of the top demands from copyright holders. Those are, a ‘notice and staydown’ requirement and ‘site blocking.’

The Copyright Office understands that rightsholders would like a requirement to prevent pirated content from being uploaded, as is also required in the EU by Article 17 of the new Copyright Directive. However, it’s not yet convinced that this is right for the US.

First of all, it would require a “fundamental shift of intermediary liability” in the country. In addition, it is not clear what effect a filtering requirement would have on speech and competition. Those issues would need more research for Congress to consider it at all.

“[I]t is the opinion of the Office that a general staydown requirement and/or mandatory OSP filtering should be adopted, if at all, only after significant additional study, including of the non-copyright implications they would raise,” the report reads.

The same is true for pirate site blocking. While there is some evidence on the effectiveness and implications in other countries, this is not always consistent, and more research is needed.

“While some of these studies report statistically significant reductions in piracy, other studies have shown smaller or no reductions,” the Copyright Office writes.

“Thus, it is difficult to weigh the benefit of such orders against the potential speech impacts, arguing in favor of additional, dedicated study before adopting such a proposal.”

Overall, the report includes some positive and some negative elements for both sides. This was unavoidable, as rightsholders and online service providers have opposing views on how the DMCA safe harbors should function.

The Copyright Office believes that more balance can be achieved by file-tuning the current language. While this sounds mild, the implications for the repeat infringer and DMCA subpoenas could be far-reaching.

That said, the report just provides recommendations. Whether these will be turned into amendments and new legal requirements is up to Congress.

From: TF, for the latest news on copyright battles, piracy and more.