Pushing Back on Stricter Copyright ISP Liability Rules

Abstract

Copyright ISP liability rules are currently under siege. For more than two decades, Internet Service Providers (ISPs) in the US, EU, and many other countries successfully existed under similar “safe harbor” and “notice-and-takedown” rules that limit the liability of ISPs that host contents uploaded by their users. Under these rules, such ISPs are insulated from liability for their users’ infringements so long as an ISP neither knows about nor is complicit in the infringing activities of its users. An ISP could lose the safe harbor, however, once it independently learned or was notified by copyright owners of specific instances of infringing materials, unless the ISP expeditiously removed or disabled access to that material.

Major copyright industry groups have not been supportive of these notice-and-takedown safe harbors since they were first adopted, and their dissatisfaction has only grown over time as online infringements have grown to scale. In the EU, copyright industry concerns about online piracy contributed to adoption in 2019 of the Directive on Copyright and Related Rights in the Digital Single Market (DSM Directive). In particular, Article 17 of the DSM places much stricter obligations on for-profit ISPs that host large amounts of user contents.

In the US, the Senate Judiciary Committee’s Intellectual Property Subcommittee in 2020 has commenced a series of hearings on the DMCA safe harbors. In May 2020, the US Copyright Office issued its long-awaited study on Section 512 of US copyright law, in which it recommended several significant changes to the safe harbor rules. It did not, however, at this time endorse a DSM Directive Article 17-like notice-and-staydown regime, as some copyright industry representatives had urged.

This Article explores the development and current state of ISP copyright liability rules, beginning with the circumstances that led to the creation of ISP safe harbors, the Digital Millennium Copyright Act (DMCA) of 1998, and the role the US has played in making the notice-and-takedown regime an international standard. The Article then shows that the DSM’s Article 17 is internally contradictory, deeply ambiguous, and harmful to small and medium-sized companies as well as to user freedoms of expression. It also discusses why Article 17 may well violate the European Charter of Fundamental Rights.

The Article also critiques the Copyright Office’s Section 512 Study and key recommendations it made for changes to the DMCA safe harbors. The 512 Study purports to take a comprehensive view in presenting its review and recommendations, but on closer reading its almost exclusively pro-copyright industry stances on reform of virtually every aspect of § 512 shortchanges other stakeholder interests.

The Article recommends that Congress take a balanced approach in considering any changes to the DMCA notice-and-takedown rules. Any meaningful reform of ISP liability rules should consider the interests of a wide range of stakeholders, including highly successful US-based Internet platforms, smaller and medium-sized ISPs, startups, the many millions of Internet users who share their own creations through these platforms, hundreds of millions of Internet users who enjoy these creations, as well as the interests of major copyright industries and individual creators who have been dissatisfied with the DMCA safe harbor rules.

Keywords: copyright law, intermediary liability, ISP safe harbors, online service provider, digital millennium copyright act, DSM Directive, Article 17