ip innovations congress

Preliminary Proposals for DMCA Amendments

Congressional CommitteeCameron Zinsli, Luca Guidobaldi,

Dana Halevy Rozner, Andrew Asplund, Jin Han, Lawrence Wang, Katherine Rea,

Anna Bakhmetyeva

Proposal One

Dana Halevy Rozner, Luca Guidobaldi, Cameron Zinsli

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• Case law has developed around the existing framework• New definitions will become outdated as technology develops;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


Separate sharing sites with other ISPs by redefining it: Sharing Site - websites or software where users can upload digital files

of literary, pictorial, photographic, sound recording or audiovisual works for other users’ on-line viewing or downloading.

Grant safe harbor to sharing sites only if they require non-anonymous identification information from up-loaders.

Require sharing sites to notice the uploader when his file is removed on right holder’s request.

Sharing site is require to actively ban users who attempt to re-upload identical or substantially similar files after being notified his previous uploaded contents are removed.

Sharing site should employ reasonable technology to block identical or substantially similar infringing contents to be re-uploaded.

Grant copyright owner access to identity of repeat infringers for litigation.


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


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

Proposal Three

Katherine Rea, Anna Bakhmetyeva


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


Balance of interests

Collaboration

Creativity

Flexibility

International harmonization


More balanced (pro-owners, pro-ISPs)

Removes uncertainty

Privacy issues

Defined system for appeals

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