On May 21, 2020, the Copyright Office issued its long-awaited report on section 512 of the Copyright Act. The report is the product of years of hard work by the Copyright Office staff.

We are impressed by the thoroughness and clarity of the report. It lays a strong foundation for thinking about necessary changes to section 512. It synthesizes a large volume of written and oral comments, case law, legislative history, developments in international copyright law, and empirical studies. Preparing such a comprehensive analysis takes a lot of hard work and diligence, and for that we commend the Copyright Office staff. 

As the report notes, through a series of court decisions, section 512 has become highly unbalanced in favor of internet platforms. Congress had two stated goals when enacting section 512 with the DMCA in 1998: protecting rights holders against internet piracy, and shielding internet platforms from liability for the infringements of their users if they cooperated with rights holders. Until recently, the courts, for a variety of reasons, including inconsistencies within the law itself, effectively whittled down the 512 safe harbor eligibility requirements. As a result, we are left with a notice-and-takedown system that requires copyright owners to send endless takedown notices to make even the tiniest dent in piracy, and makes it very easy for infringing work that are taken down to be put right back up. This is a highly inefficient and expensive way to address rampant ebook and audiobook piracy, particularly for individual authors and other creators who are essentially helpless. 

As the report describes, the unabated growth of online piracy since 512’s enactment clearly means that the law isn’t working as intended. We especially appreciate the attention given in the report to the plight of individual creators, who unlike large creators lack the financial and technical resources to enjoy preferential treatment by internet platforms. Many authors spend hours each week tracking down pirated copies and sending takedown notices, only to see their efforts result in five new pirate sites take the place of one that was taken down. Others have given up. Meanwhile, almost all have seen drastic reduction of incomes in the last decade, with 2018 mean writing incomes for full-time professional authors down to $20,000, a 42% reduction in real dollars from a decade prior. 

The Authors Guild submitted comments to the Copyright Office and participated in several hearings for the report. We are satisfied that our concerns were heard, along with the concerns of many other groups. We believe the report is a balanced and fair representation of how the law is functioning today and what needs to be fixed. We remain ready and willing to assist Congress in drafting legislation to make 512 work in the way it was originally intended. To quote Representative Goodlatte’s 1998 statement about the legislation: “If America’s creators do not believe that their works will be protected when they put them on-line, then the Internet will lack the creative content it needs to reach its true potential; and if America’s service providers are subject to litigation for the acts of third parties at the drop of a hat, they will lack the incentive to provide quick and sufficient access to the Internet.”[1]

You can read the report here.

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[1] 144 Cong. Rec. 18774 (1998) (statement of Rep. Goodlatte).