{"id":3020,"date":"2016-04-01T16:13:27","date_gmt":"2016-04-01T20:13:27","guid":{"rendered":"http:\/\/cpip.gmu.edu\/?p=3020"},"modified":"2026-04-09T18:51:30","modified_gmt":"2026-04-09T18:51:30","slug":"copyright-scholars-courts-have-disrupted-the-dmcas-careful-balance-of-interests","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2016\/04\/01\/copyright-scholars-courts-have-disrupted-the-dmcas-careful-balance-of-interests\/","title":{"rendered":"[Archived Post] Copyright Scholars: Courts Have Disrupted the DMCA’s Careful Balance of Interests"},"content":{"rendered":"

By Devlin Hartline<\/em><\/p>\n

The U.S. Copyright Office is conducting a study<\/a> of the safe harbors under Section 512<\/a> of the DMCA, and comments are due today. Working with Victor Morales and Danielle Ely from Mason Law\u2019s Arts & Entertainment Advocacy Clinic, we drafted and submitted comments on behalf of several copyright law scholars. In our Section 512 comments<\/a>, we look at one narrow issue that we believe is the primary reason the DMCA is not working as it should: the courts\u2019 failure to properly apply the red flag knowledge standard. We argue that judicial interpretations of red flag knowledge have disrupted the careful balance of responsibilities Congress intended between copyright owners and service providers. Instead of requiring service providers to take action in the face of red flags, courts have allowed them to turn a blind eye and bury their heads in the sand.<\/p>\n

Whether Section 512\u2019s safe harbors are working as intended is a hotly contested issue. On the one hand, hundreds of artists and songwriters are calling for changes<\/a> \u201cto the antiquated DMCA which forces creators to police the entire internet for instances of theft, placing an undue burden on these artists and unfairly favoring technology companies and rogue pirate sites.\u201d On the other hand, groups like the Internet Association, which includes tech giants such as Google and Facebook, claim<\/a> that the safe harbors are \u201cworking effectively\u201d since they \u201cstrike a balance between facilitating free speech and creativity while protecting the interests of copyright holders.\u201d The Internet Association even claims that \u201cthe increasing number of notice and takedown requests\u201d shows that the DMCA working.<\/p>\n

Of course, it’s utter nonsense to suggest that the more takedown notices sent and processed, the more we know the DMCA is working. The point of the safe harbors, according to the Senate Report<\/a> on the DMCA, is \u201cto make digital networks safe places to disseminate and exploit copyrighted materials.\u201d The proper metric of success is not the number of takedown notices sent; it\u2019s whether the internet is a safe place for copyright owners to disseminate and exploit their works. The continuing availability of huge amounts of pirated works should tip us off that the safe harbors are not working as intended. If anything, the increasing need for takedown notices suggests that things are getting worse for copyright owners, not better. If the internet were becoming a safer place, the number of takedown notices should be decreasing. It\u2019s not surprising that service providers enjoy the status quo, given that the burden of tracking down and identifying infringement doesn\u2019t fall on them, but this is not the balance that Congress intended to strike.<\/p>\n

Our comments to the Copyright Office run through the relevant legislative history to show what Congress really had in mind\u2014and it wasn\u2019t copyright owners doing all of the work in locating and identifying infringement online. Instead, as noted in the Senate Report, Congress sought to \u201cpreserve[] strong incentives for service providers and copyright owners to cooperate to detect<\/em> and deal<\/em> with copyright infringements that take place in the digital networked environment.\u201d The red flag knowledge standard was a key leverage point to encourage service providers to participate in the effort to detect and eliminate infringement. Unfortunately, courts thus far have interpreted the standard so narrowly that, beyond acting on takedown notices, service providers have little incentive to work together with copyright owners to prevent piracy. Even in cases with the most crimson of flags, courts have failed to strip service providers of their safe harbor protection. Perversely, the current case law incentivizes service providers to actively avoid doing anything when they see red flags, lest they gain actual <\/em>knowledge of infringement and jeopardize their safe harbors. This is exactly the opposite of what Congress intended.<\/p>\n

The Second and Ninth Circuits have interpreted the red flag knowledge standard to require knowledge of specific<\/em> infringing material before service providers can lose their safe harbors. While tech giants might think this is great, it\u2019s terrible for authors and artists who need service providers to carry their share of the load in combating online piracy. Creators are left in a miserable position where they bear the entire burden of policing infringement across an immense range of services, effectively making it impossible to prevent the deluge of piracy of their works. The Second and Ninth Circuits believe red flag knowledge should require specificity because otherwise service providers wouldn\u2019t know exactly what material to remove when faced with a red flag. We argue that Congress intended service providers with red flag knowledge of infringing activity in general<\/em> to then bear the burden of locating and removing the specific<\/em> infringing material. This is the balance of responsibilities that Congress had in mind when it crafted the red flag knowledge standard and differentiated it from the actual knowledge standard.<\/p>\n

But all hope is not lost. The Second and Ninth Circuits are but two appellate courts, and there are many others that have yet to rule on the red flag knowledge issue. Moreover, the Supreme Court has never interpreted the safe harbors of the DMCA. We hope that our comments will help expose the underlying problem that hurts so many creators today who are stuck playing the DMCA\u2019s whack-a-mole game<\/a> when their very livelihoods are at stake. Congress intended the DMCA to be the cornerstone of a shared-responsibility approach to fighting online piracy. Unfortunately, it has become a shield that allows service providers to enable piracy on a massive scale without making any efforts to prevent it beyond acting on takedown notices. The fact that search engines can still index<\/a> The Pirate Bay<\/em>\u2014an emblematic piracy site that even has the word \u201cpirate\u201d in its name\u2014without concern of losing their safe harbor protection is a testament to how the courts have turned Congress\u2019 intent on its head. We hope that the Copyright Office\u2019s study will shed light on this important issue.<\/p>\n

To read our Section 512 comments, please click here<\/strong><\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Devlin Hartline The U.S. Copyright Office is conducting a study of the safe harbors under Section 512 of the DMCA, and comments are due today. Working with Victor Morales and Danielle Ely from Mason Law\u2019s Arts & Entertainment Advocacy Clinic, we drafted and submitted comments on behalf of several copyright law scholars. In our […]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[10,29,34,1],"tags":[165,394,447,540,625,704,930,1028,1330,1500,1542],"class_list":["post-3020","post","type-post","status-publish","format-standard","hentry","category-copyright","category-internet","category-legislation","category-uncategorized","tag-arts-entertainment-advocacy-clinic","tag-danielle-ely","tag-dmca","tag-facebook","tag-google","tag-innovation-alliance","tag-mason-law","tag-notice-and-takedown","tag-section-512","tag-u-s-copyright-office","tag-victor-morales"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/3020","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=3020"}],"version-history":[{"count":2,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/3020\/revisions"}],"predecessor-version":[{"id":16901,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/3020\/revisions\/16901"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=3020"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=3020"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=3020"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}