US Copyright Office report concludes tech safe harbours are ‘unbalanced’


Just finished a book and looking for a new, gripping read for the weekend ahead? Here’s a recommendation for you: ‘Section 512 of Title 17‘. Admittedly, it’s got no wizards, romance, clutter-clearing tips or Henry VIII lopping people’s heads off. But in terms of music industry politics, it’s got the makings of a thriller.

The report is the US Copyright Office’s multi-year study of Section 512 of the US Copyright Act. That’s the part focused on safe harbours for internet service providers that allow user-generated content. Yes, we’re in ‘value gap’ territory here: the ongoing argument over whether copyright legislation (Section 512 in the case of the US) needs to be updated to – in the music industry’s view – bring platforms like YouTube more in to line with non-UGC services like Spotify in terms of licensing requirements.

It’s fair to say the music industry will be happy with the report. “The Copyright Office concludes that the operation of the section 512 safe harbor system today is unbalanced,” is the killer line. “The Report highlights areas where current implementation of section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbors; repeat infringer policies; knowledge requirement standards; specificity within takedown notices; non-standard notice requirements; subpoenas; and injunctions.”

The Copyright Office stressed, however, that it is “not recommending any wholesale changes to section 512”, but rather pointing out areas “where Congress may wish to consider legislation to rebuild the original balance between rightsholders and online service providers”.

It does seem to be striving to see the point of view of both sides: for example, the part where it notes that expecting all online service providers to “develop and deploy expensive, Content ID-like systems” would erect a barrier for new players to enter the market, yet also that “an approach to online infringement that requires all content owners to have enforcement teams on retainer is guaranteed to leave many small, individual creators without an effective mechanism for vindicating their rights.”

Music bodies are happy with the overall conclusion. A joint statement from the RIAA, NMPA, A2IM, SONA, SoundExchange and the Music Artists Coalition (MAC) hailed the findings. “As this report makes clear, the current system is broken – especially when it comes to so-called ‘user-upload platforms’. To succeed, platforms must be made accountable participants in the music ecosystem,” they said, setting out some of the actions they’d like to see taken (you can find those here.)

The Artist Rights Alliance punched harder in its own statement. “When you cut through the bureaucratic caution and legalese, this report describes a simple, brutal truth: The tech monopolies are failing artists, songwriters, and music fans. And they couldn’t care less… If we could get some common decency from the Silicon Valley giants, we could work out solutions to many of these issues without changes to the law. The Judiciary Committees asked for this report and must now push tech companies to find these solutions and insist that independent creators have a seat at the table. If that fails, Congress must act.”

Yes, there are other views. Alphabet has yet to comment, but the Internet Association (which represents technology firms including Google, Facebook, Amazon, Microsoft and Spotify) issued a statement. “The report fails to recognize that Section 512, as it currently exists, is serving the copyright ecosystem well. The law fosters a balanced, innovation-oriented copyright system that protects the interests of an array of stakeholders, by providing rights holders, creators, internet companies, technology industries, and consumers helpful tools to protect their rights in an online environment. The report also doesn’t acknowledge Section 512’s impact on users, many of whom are creators themselves, or their equities in the internet ecosystem,” said CEO Jon Berroya.

The Electronic Frontier Foundation also hit out at the report, which it claimed “has incorrectly determined that the only groups whose concerns should be addressed are those of large tech companies and major rightsholders… The solutions it proposes are in the service of tilting the “balance” of Section 512 towards rightsholders, ignoring the users who will actually bear the brunt of these policies.”

The battle lines are all too familiar. With the hot potato of copyright reform now passed to the US Congress, in the year not just of a presidential election, but of a global pandemic too, action may not be quick. And as ever with these matters, there’ll be plenty of aggressive lobbying from both sides to come, privately and publicly.

Written by: Stuart Dredge