The Center for Democracy & Technology and the R Street Institute thank the Copyright Office for the opportunity to respond to its extensive inquiry into the impact and effectiveness of the safe harbor provisions of the Digital Millennium Copyright Act (DMCA). The Center for Democracy & Technology (CDT) is a nonprofit advocacy organization working to advance democratic values in the digital age. The R Street Institute (R Street) is a non-profit, non-partisan public policy research organization whose mission is to engage in policy research and outreach to promote free markets and limited, effective government.
CDT and R Street filed comments in April responding to the Office’s initial questions about section 512, and filed additional comments yesterday in response to further questions raised by the initial inquiry. Although the second round of questions focused on some slightly different aspects of section 512’s operation and impacts, CDT’s and R Street’s position remain the same. The “notice-and-takedown” system behind the safe harbors section 512 offers for online service providers may not completely satisfy all of the internet community’s diverse interests, but it does balance the fundamental interests in free expression and copyright protection.
The Internet could not have become what it is today without the immunity provided by section 230 of the Communications Act and the limitations on liability in section 512 of the DMCA. Those provisions allow online service providers to create the platforms and services that users rely on to access information and creative content, communicate with one another, and create and share their own original works. The flexibility of section 512 has fostered continued evolution and refinement in the mechanisms used to address online infringement without sacrificing the values of free expression and innovation that Congress sought to protect in enacting the DMCA.
No constituency is entirely content with every aspect of the DMCA’s safe harbors or notice-and-takedown process. Lawful content has been removed from online services due to mistaken or abusive notices, infringing content has reappeared notwithstanding the issuance of complete and valid takedown notices, and service providers have been subject to significant liability risk despite efforts at good-faith compliance with the DMCA’s requirements. However, the DMCA has been successful in balancing the competing interests of rightsholders, service providers, and users as the Internet and World Wide Web have evolved from curious adjuncts to proprietary content and services into immensely powerful tools for commerce, civic engagement, and free expression. This success could not have been achieved – and it could not be maintained – had Congress not expressly rejected imposing a duty on intermediaries to monitor and police the activity of their users.
Instead of a duty to monitor, the DMCA’s notice-and-takedown process relies on cooperation between rightsholders and service providers in combatting online infringement. Cooperation has also led to innovative and voluntary approaches to addressing infringement that go beyond what the DMCA requires. These voluntary measures work best when they display the same attributes that have led to the successful multistakeholder governance of the Internet: openness and transparency. It is not always an easy peace, but it is a durable one.