A Deeper Dive into the Copyright Office’s Section 512 Report

Stephen Carlisle June 24, 2020

When the Copyright Office released its report on Section 512 of the DMCA on May 21, 2020, it largely concluded that the law was not working as intended, and that “Congress’ original intended balance has been tilted askew.” ¹ This conclusion did not sit well with the websites, ISP’s and OSP’s. And at 198 pages and 1041 footnotes, it’s a lot to unpack. In the intervening month, plenty has been written about the report. But let’s dive a little deeper and get to the parts that didn’t get into the headlines or the bullet points.

92,000 Public Comments or 86,000 Bot Comments?

Chief amongst the complaints was that somehow the copyright office had not really taken into account “the public interest,” in reaching its conclusions. For its part, the Electronic Frontier Foundation complained that “[t]he Copyright Office’s report speaks of the views of online service providers and rightsholders, while paying only lip service to the millions of Internet users that don’t identify with either group.” ²

Well, not quite.

The Copyright Office was nothing but thorough. It first sent out a general Notice of Inquiry (NOI) on December 21, 2015, inviting public comments. It received over 92,000 comments. ³ It held two days of public roundtables in two separate cities: May 2^nd and 3^rd of 2016 in New York, and May 12^th and 13^th 2016 in San Francisco. This apparently was not enough. Another NOI was issued on November 8, 2016, seeking additional comments on 16 specific questions, and announced another day of roundtable discussions that were held in Washington, D.C. on April 8, 2019. ⁴

Your humble correspondent is well aware of all of these events. Not only did I file written comments, but I attended both the New York roundtable and the follow-up roundtable held in Washington, D.C. The Copyright Office was kind enough to sit me right next to the representative from Google. The EFF was also well aware of these events. Corynne McSherry of the EFF was a roundtable participant in Washington, D.C. ⁵

According to the Report, “the Office received more than 92,000 written responses from a wide range of parties, including rightsholders OSPs, technology companies, libraries, legal scholars, public interest groups, and individual members of the public.” ⁶ But as they say, let’s take a “deeper dive” into what these numbers really show. For this, you have to read the footnotes.

Around 94% of all the comments received were what the CO calls “template forms,” a more polite word for spam comments. These comments basically reproduced “template text provided by a third party,” ⁷ and contained “less than 40% original text.” ⁸ Put simply, cut-paste, then click-submit. So, it’s not that the public was excluded, or ignored, it’s more that 94% of the “public comments” were most likely generated by bots, in an effort to seem like a massive public comment.

If all of this sounds vaguely familiar, similar tactics were deployed in Europe against various EU commissioners, filling their inboxes full of thousands of identically worded diatribes against the proposed Article 13, which sought greater copyright protections. EU commissioner Volker Reick, in an article translated and posted by The Trichordist, described it thusly:

“[T]hose intent on scuppering the directive had not yet exhausted their firepower. What came now was the hour of the bots, the automatically generated emails, the automatically placed phone calls and the miraculous multiplication of protest, or rather its simulation. In the week before the plenary vote in the EU parliament on whether the adoption of the report by the JURI Committee and the negotiation mandate given to Voss should be allowed to stand, the inboxes of EU parliamentarians were flooded with automatically generated emails. Some EU parliamentarians reported having received 60,000 emails. In total, 6 million emails appear to have been dispatched to EU parliamentarians in this fashion. Compare that number to the handful of protesters in Berlin… Almost all the emails were identical in content, phrasing and formatting, and many even came from one and the same sender, presumably following the logic that more is better.” ⁹

So, what probative weight should the CO give over 86,000 “template text provided by a third party” comments? I’ll let the EFF figure that one out.

Plus, who do you think is sending them?

Whatever Happened to “Red Flag Knowledge”? No One Seems to Know.

An additional point of contention by the EFF is that the report seeks to “second guess” decisions made by Courts.

“In short, the Office has taken upon itself to second-guess the many judges actually tasked with interpreting the law because it does not like their conclusions. Rather than describe the state of the law today and advise Congress as an information resource, it argues for what the law should be per the viewpoint of a discrete special interest.” ¹⁰

Funny. This is what the EFF does every day of the week.

And I seem to recall that the Department of Justice, amongst other government agencies, frequently makes recommendations to Congress on legislative changes.

But, I digress.

Case in point is the whole issue of “red flag” knowledge. According to the report:

“OSPs that seek protection under the section 512(c) and (d) safe harbors must also act expeditiously to remove or disable access to material when they have ‘actual knowledge’ of infringement or, in the absence of such actual knowledge, when they have ‘aware[ness] of facts or circumstances from which infringing activity is apparent’—the ‘awareness’ standard often referred to as ‘red flag’ knowledge.” ¹¹

In a series of Court decisions, the Courts have effectively removed “red flag knowledge” from the statute, as this author contended in a previous blog post. ¹² This was complained about repeatedly by rightsholders at both roundtables. The CO agrees:

“The Office believes a standard that requires an OSP to have knowledge of a specific infringement in order to be charged with red flag knowledge has created outcomes that Congress likely did not anticipate.  The Copyright Office reads the current interpretations of red flag knowledge as effectively removing the standard from the statute in some cases, while carving an exceptionally narrow path in others that almost requires a user to “fess up” before the OSP will have a duty to act.  OSPs are correct that Congress likely did not intend to adopt a general awareness standard for red flag knowledge, since such a standard would consume many OSPs Congress otherwise sought to protect. Yet courts have set too high a bar for red flag knowledge, leaving an exceptionally narrow space for facts or circumstances that do not qualify as actual knowledge but will still spur an OSP to act expeditiously to remove infringing content.” ¹³

This is not, as the EFF contends, telling Congress what the law “should be.” This is the CO telling Congress that the Courts are not giving effect what is already in the law.

And consider this telling point of the Report:

“Significantly, Congress set up the actual knowledge standard as distinct from red flag knowledge… [b]ut as interpreted now, there is little space between the two.  To that point, at the Washington, D.C., public roundtable in April 2019, participants repeatedly were asked for an example of an activity that would be less than actual knowledge but would create red flag knowledge under the current judicial interpretations of the statute.  Stakeholders were unable to identify a single activity.” ¹⁴

I remember this quite well. I was on one of the panels that this was asked at. I remember feeling that the air had kind of gone out of the room. Remember, I’ve got the guy from Google sitting next to me. If he can’t figure out what “red flag” knowledge is, then something is seriously wrong and needs to be fixed.

Can We Get a Unified Takedown System?

I was able to be heard on a pet-peeve of mine, namely the passive-aggressive system that Google and others take to discourage the sending of takedown notices. ¹⁵

“[Y]ou are asked a series of questions to justify your takedown before you can even file your takedown, including [a question about whether you are] the subject of the photograph, in which, if you say yes, you get this bright red warning saying if you’re the subject of the photograph, you’re most likely not the copyright owner, as if the selfie had never been invented . . . . Google will not let you file a takedown notice unless you create a Google account, which requires you to agree to Google’s terms of service.  This includes a choice of jurisdiction and venue in Google’s favor.  And this is before you even get to the takedown page.” ¹⁶

I suggested at the time, a unified takedown form ought to be put in place that would always be acceptable. It seems that the CO agrees.

“The Office also agrees with many rightsholders that the bespoke nature of each OSP’s webform, combined with DMCA pages that are not readily accessible from the homepage and do not always contain direct contact information for the OSP’s designated agent, results in significant increases in the time and effort that must be invested by a rightsholder to submit a takedown notice.

The Office acknowledges that the use of nonstandard and handwritten takedown notices requires OSPs to expend additional time and effort to process them, and that some users seek redress for issues other than copyright through a takedown notice under section 512.  To help alleviate some of this burden in the near term, the Copyright Office will publish standard notice and counter-notice forms and will develop additional user education materials regarding the types of notices that are appropriate under section 512.” ¹⁷

That’s a good start.

“There is an opportunity, however, for Congress to address the growing disconnect between a statute written for communications prevalent in the late 1990s and current technological expectations and capacities while simultaneously creating a more standardized system that benefits OSPs, rightsholders, and the public.  Congress may want to consider a mechanism for ‘future-proofing’ the standard notice requirements under section 512 by shifting enumeration of notification methods from a statutory mandate towards a regulatory process.  For example, since section 512 requires only that an OSP’s agent information be ‘publicly available’ on its website, there is currently no standardized practice for the location or content of user notifications regarding the takedown process.  Further, many websites require navigating through multiple links (such as ‘Help’ or ‘Terms of Service’) before reaching the web-based submission form or designated agent contact information.  Congress could modify the language of section 512(c)(2) to provide that the designated agent’s information be not just ‘on its website in a location accessible to the public,’ but also ‘prominently displayed,’ and delegate to the Copyright Office the power to set regulations regarding minimal placement and content standards.” ¹⁸

Now, we’re getting somewhere.