Last Friday the period for individuals and companies to submit comments regarding the safe harbor provisions of the DMCA ended. The US Copyright Office provided this 4-month comment period to help “evaluate the impact and effectiveness of the safe harbor provisions.”1 The Copyright office cited rapid changes in the internet since 1998 when the DMCA was established, as creating a situation “ripe” to reconsider the way copyright owners can deal with online infringement. The study will “consider the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public.” Further, it “will also review how successfully section 512 addresses online infringement and protects against improper takedown notices.”2
Thursday, the day before the period ended, hundreds of “artists spanning a variety of genres and generations submit[ed] comments . . . demanding reforms to 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.”3 Besides artists like Katy, Perry, Lionel Richie and Steven Tyler who signed the letter to the Copyright office, the RIAA claims “18 major music organizations submitted a 97-page joint brief explaining the myriad flaws in the DMCA.”4
Amongst the flaws the groups and individuals noted are: “a broken notice-and-takedown system, toothless repeat infringer policies and incentives for services to embrace willful blindness instead of preventing known and widespread infringement.”5
However, other groups, like Google, Facebook and Netflix, claim the DMCA safe harbor provisions “are still working effectively and as intended today.” They cite evidence of the §512’s effectiveness in “the increasing number of notice and takedown requests that are received and efficiently processed.”6
While the Copyright office doesn’t have the authority to change the safe harbor provisions, it will issue a recommendation based on their studies and consideration of submitted comments to a congressional subcommittee.7
Chandler Howell is an Entertainment and Sports Highlight Contributor for the Harvard Journal of Sports and Entertainment Law and a current first year student at Harvard Law School (Class of 2018).