Overview of Proposed Changes
• Clarify that YouTube-like sites fall within the safe harbor of §512(c).
→ New §512(c)(2): “Any activity relating to the indexing, aggregation, presentation, access, or sharing of protected material, stored at the direction of a user, shall not forfeit the application of this Section insofar the service provider does not engage in the selection or modification of the content stored.”
• Increase the burden on YouTube like sites to provide information about repeat infringers when requested by content holders (§512(h))
→ Definition of “repeat infringers”: “Any user whose uploaded material has been
repeatedly notified as infringing material by the service providers based on the
content owner’s notification made pursuant to §512(c)(4) [former §512(c)(3)]”
• In 512(h)(2)(D): Require content owners requesting a subpoena of “repeat infringers” identity to make a prima facie showing of an absence of fair use.
• Under §512(c), if apparent (& continuous) infringement is present, only allow sites that have implemented reasonable filtering measures to remain protected by the safe harbor.
• A defendant can show reasonable filtering measures by demonstrating a good faith effort of reducing infringement.
Policy Justifications
• The system needs minor tweaks not major overhauls: the existing scheme of the DMCA is sufficient
• Preserving the openness of existing YouTube-like sites to prevent the law from forcing sites into closed, subscription based services and obliterating anonymity.
• We do not want to discourage businesses and users from participating in these markets.
• Encourage cooperation amongst stakeholders: the burden stays with the content owners but ISPs should facilitate copyright holders’ policing activities, acting in good faith according to the degree of technical and contractual control they might retain on the material.
Comparison to Other Proposals
• Adding new safe harbor categories is not necessary: “sharing sites” already fall within §512(c)
• Might restrict the business models that could develop in the marketplace
• Case law has developed around the existing framework
• New definitions will remain inadequate as technology develops; perpetuating litigation
• Anonymity has its benefits; the Internet has facilitated the free and open exchange of ideas
• It is one thing to expose ‘repeat infringers’, it is entirely different to remove anonymity altogether
• A public agency overseeing copyright disputes is too much for too little
• Increased burden on tax payers; there is still room for tweaking the law before it is necessary to create an entirely new system
• ALJs wouldn’t impact existing litigation given the constitutional issues that arise in modern disputes
Proposal Two: Andrew Asplund, Jin Han, Lawrence Wang
Overview of Proposed Changes
• Clearly define “sharing sites” such as YouTube as separate from ISPs
• Add provisions that grant safe harbor for sharing sites only if they require non-anonymous identification information from submitters
• Require sharing sites to ban repeat infringers
• Grant copyright owner access to identity of repeat infringers for litigation
Policy Justifications
• Allows sharing site to ban repeat infringers more effectively
• Creates method for copyright owner to more readily pursue direct infringer
• Shifts more burden of responsibility to the infringer
Comparison to Other Proposals
• Preserving anonymity limits copyright owner's ability to pursue infringers
• No need to create new government organizations
• Automated filters ineffective in both stopping infringing content and allowing fair use content
Overview of Proposed Changes
• Create New Section within the Department of Justice
• Review and amend the Copyright Act:
a) Public graduate response system
b) Statutory clarification of contributory, vicarious, and inducement liability
• Filter implementation duties of ISP
• Education campaigns
Policy Justifications
• Balance of interests
• Collaboration
• Creativity
• Flexibility
• International harmonization
Overview of Proposed Changes
• More balanced (pro-owners, pro-ISPs)
• Removes uncertainty
• Privacy issues
• Defined system for appeals
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