Safe Harbor Reform In The United States: The Time is Now (Guest Op-Ed)

Scott Windus/Manatt, Phelps & Phillips, L
Jordan Bromley

Recent news of the European Union directive related to active measures online service providers (or “OSPs”) must now take to police infringement on their sites has re-sparked a similar discussion in the United States, notably with the recent Copyright Office panel discussions held last month. Underpinning the discourse related to copyright is a general sea change of opinion regarding what an OSP should and should not be doing with respect to the posts of their customers.

A little history below: 

When the Digital Millenium Copyright Act, or “DMCA,” was enacted into law in 1998, the Internet landscape was akin to the Wild West during the gold rush: wide open land with no idea of what would become of it.

One particular area of interest for all owners and administrators of copyright, and those who seek to exploit copyright, is section 512 of the DMCA, which provided what is commonly known as the “safe harbor” protections for online service providers, or “OSPs.”

The philosophy behind the DMCA safe harbor is akin to that behind a law, the grandfather of all safe harbors, known simply as “Section 230.” Section 230 was created only a few years before the DMCA and provides the backbone of the Internet as we know it. In short, it states that OSPs should not be held liable for the actions of their users. Sound familiar?

These 20-plus-year-old protections have been ferociously litigated, as the Internet developed on a bedrock of unlicensed intellectual property. It also forms OSP policy on takedowns.

Let’s look at the 10,000 foot view for a moment. You have the opposing forces: owners of intellectual property, and the OSPs. And the opposing arguments: OSPs must be allowed to harness the Internet’s true purpose as a meeting place of all ideas, thoughts, concepts and limitless social interaction. But constitutionally protected artists must have the right to control, monetize and make a living from their creations.

Let’s bring this argument back to earth and talk about YouTube’s policy on takedowns. I am fortunate to represent iconic brand name artists, whose songs have helped sculpt the modern music landscape. The songs are popular across language and border. As a result, there are thousands of unauthorized uses online. 

When we find them, what do we do? Simple: we use the takedown procedures afforded to us under the DMCA, and alert YouTube as to the existence of these unauthorized and infringing works. The video comes down immediately. Then, the user, who has been notified by YouTube of this violation, has the opportunity to, without any proof, claim that they have the right to maintain the video posting on the site.

What happens next is crucial. It’s where the “rubber hits the road.” YouTube gives me, the content owner’s representative, 10 days to provide proof that we have filed a lawsuit against this unauthorized video. Once those 10 days lapses without proof of a filing, the video goes back up.

For those who don’t know, litigation is expensive. It can easily cost six or seven figures. There is no intellectual property owner in the world who can file a separate lawsuit against every user who uploads an infringing video on YouTube, not to mention the terrible PR that would result. So, 10 days later, the infringing video goes back up, despite the service provider being informed of the infringing content. And let’s not forget that the video is most likely monetized. Ads being sold against the infringing content, money flowing to infringers and the OSP.

I’m sure you have heard the “whack a mole” analogy before. Let’s lose that analogy. We have no hammer. It’s too expensive.

By now we have all heard about the EU Directive regarding safe harbor. While this is only a directive, and each member state has the opportunity to enact into law in whatever way they see fit, it is a move towards softening safe harbor’s edges. It begins the conversation for modernization of the rules and regulations that must change in order to protect us.

Things are happening domestically, as well. The FOSTA amendment to Section 230 was signed into law on April 11th of last year. This underscores the extent to which U.S. law has historically protected the worst online actors. This particular bill finally provides liability for OSPs whose users engage in child sex trafficking. Before that, OSPs like backpage.com operated without any liability.

In an interview last summer, Senator Ron Wyden (D-OR), co-author of Section 230, said the following about the OSPs' obligation to police various illegal activity of their users: “We envisioned that the law would be both a sword and a shield. The industry better start using the sword, part of the two-part package, or else it isn’t going to be in their hands.”

This stern warning should be similarly applied to section 512 of the DMCA.

The Music Modernization Act was a good start, but let’s not stop there. Let’s take a cue from the EU. Let’s work again as a collective force, perhaps with our friends in Hollywood, to adjust the law that shields self-serving OSP policies at the expense of our musical works. While I don’t think it is fair to do away completely with the protections afforded by Section 230 and 512 of the DMCA, we need to strike a better balance, especially now that we have the benefit of two and a half decades of experience. The time is now.

Jordan Bromley is a partner and leader of the entertainment transactions and finance group at law firm Manatt, Phelps & Phillips, LLP.