Section 512 of Title 17 was enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA). Since its enactment 22 years ago, there have been dramatic and rapid changes to the internet, but the DMCA has not been changed to accommodate today’s global high-tech advancements. Section 512 is a key provision of copyright law that guides how copyright and parts of the internet interact with each other.
Creators, independent artists, authors and musicians have suffered during COVID-19 with wide-ranging dependency on an online ecosystem, and with that, a continual rise of online piracy. Artists face a difficult task in attempting to police the use of their copyrighted content online. Today’s incalculable rate of infringement leads to questioning whether the balance that Congress sought in 1998 is still being achieved in 2020.
Is Section 512 due for a facelift? Modernizing the DMCA has been a topic of much discussion and investigation since Sen. Thom Tillis (R-NC), Chairman of the Senate IP Subcommittee announced his initiative on December 17, 2019 (in a letter to The Hill). The Subcommittee is evaluating the current status of the DMCA and determine how the law should be amended to properly address current issues. Senator Tillis launched this effort to modernize the DMCA by evaluating the current practices and operations of both platform services and creators. The Subcommittee is exploring ways to better promote the creative economy in the 21st century while maintaining these original goals of Section 512:
- Promoting the growth and innovation of online networks.
- Protecting intellectual property rights and that incentive system for promoting the creation of new expressive works.
The U.S. Copyright Office is also studying how the DMCA can be amended to be effective in today’s modern data and advertising platforms environment. On May 21, the copyright office published a report that suggests Congress address notice-and-takedown challenges and solutions, the Red Flag Knowledge Standard, the Willful Blindness Standard, and the Safe Harbor provisions.
The Safe Harbor terms enacted as part of the DMCA have allowed online service providers to operate tech platforms without facing liability for infringing content posted on those platforms, however, in exchange for limited liability, online platforms were meant to take steps to curb piracy. Granting immunity to new, emerging platforms in exchange for reasonable enforcement efforts and quickly taking down copyrighted materials was designed to ensure everyone had an equal share in both the growth of the internet and the health of our country’s creative economy. However, technology has advanced faster than we can consume, understand, and address. While artists send takedown notices, their efforts remain unsuccessful as they see infringing content reappear on the same web sites. The processes outlined in 1998’s Section 512 have not stood the test of time.
While the efficacy of Section 512 is being evaluated, the first step in protecting your business is to register your intellectual property. The legal team of Ference & Associates is experienced intellectual property law and ready to help you. Contact them at 412.741.8400 for all of your IP needs.