US Copyright is asking for feedback on the DMCA Safe Harbor

The news story:

The actual legal document:
The important text:

SUMMARY: The U.S. Copyright Office seeks further comments on the impact and effectiveness of the Digital Millennium Copyright Act (‘‘DMCA’’) safe harbor provisions. This request provides an opportunity for interested parties to reply or expand upon issues raised in written comments submitted on or before April 1, 2016, and during the public roundtables held May 2–3, 2016 in New York, and May 12–13, 2016 in San Francisco. The Copyright Office also invites parties to submit empirical research studies assessing issues related to the operation of the safe harbor provisions on a quantitative or qualitative basis.
DATES: Written responses to the questions outlined below must be received no later than 11:59 p.m. Eastern Time on February 6, 2017. Empirical research studies providing quantitative or qualitative data relevant to the subject matter of this study must be received no later than 11:59 p.m. Eastern Time on March 8, 2017

What is Safe Harbor under the DMCA?


The Four Safe Harbors

In the DMCA, Congress provided a series of safe harbors for network service providers. The term “safe harbor” is a nautical metaphor, indicating a place where a ship will be safe from stormy weather. But as in the case of a ship, being outside a safe harbor does not mean that you are in danger. It just means that your safety is not assured. Each DMCA safe harbor substantially limits the liability for copyright infringement. Each is separate, and if you fall within any one, your liability is limited. And even if you don’t meet the requirements of one of the safe harbors, that is not an indication that you are infringing a copyright. Other defenses, such as fair use, still remain available.

The four safe harbors provided by Congress, in the following subsections of Section 512, {FN72: 17 U.S.C. §512} are:

(a) Transitory digital network communications

(b) System caching

(c) Information residing on systems or networks at the direction of users

(d) Information location tools

Each of these safe harbors represent a particular aspect of the normal operation of the Internet that Congress wanted to protect and promote, albeit with some limitations. Each has a set of particular conditions, all of which must be met to enjoy the protection of that safe harbor. You don’t get to pick and choose from the different safe harbors to create a new one. Each safe harbor addresses a different aspect of potential copyright liability, and meeting the conditions of any one is sufficient to receive protection for the acts included in that safe harbor, even if the same act would not meet the requirements of another safe harbor.

Just because a service provider does not qualify for any of the safe harbors does not mean that it might not have a defense to a charge of copyright infringement. Subsection (l) makes it clear that the safe harbors are not intended to list all defenses, nor is conduct outside the safe harbors an indication that the service provider must be infringing.
The failure of a service provider’s conduct to qualify for limitation of liability under this section shall not bear adversely upon the consideration of a defense by the service provider that the service provider’s conduct is not infringing under this title or any other defense. {FN73: 17 U.S.C. §512(l)}

Even though the DMCA became law in 1998, there have been very few court cases that interpret its language. Until there are more cases, the best guidance can be found in the congressional reports that accompanied its passage.

III.B.2. Benefits of Being in the Safe Harbor

Each of the safe harbors begins the same way:
A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of [the particular act covered by the safe harbor].

The safe harbors don’t say that an act by a serviceprovider is not an infringement, like the many exceptions to the exclusive rights of a copyright owner that are detailed starting with
Section 107 {FN74: 17 U.S.C. §§107-122}
in Chapter 1 of the Copyright Act. Instead, they go to the penalties against a service provider for any infringement. A service provider can still be found to have infringed a copyright, even within the safe harbor. Congress was concerned that it might be difficult to get an injunction against a service provider when that service provider was not an infringer.

Congress felt that it was important for a court to be able to order a service provider to help in stopping an ongoing infringement. But the scope of such an injunction is limited by subsection (j). When a service provider is acting as a “mere conduit” carrying the communications of others, and meets all the conditions of
Subsection (a), {FN75: 17 U.S.C. §512(a)} a court can grant injunctions only in one or both of the following forms:

(i) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is using the provider’s service to engage in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(ii) An order restraining the service provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, online location outside the United States. {FN76: 17 U.S.C. §512(j)(1)(B)}

For all the other safe harbors, the following injunctive relief is available:

(i) An order restraining the service provider from providing access to infringing material or activity residing at a particular online site on the provider’s system or network.

(ii) An order restraining the service provider from providing access to a subscriber or account holder of the service provider’s system or network who is engaging in infringing activity and is identified in the order, by terminating the accounts of the subscriber or account holder that are specified in the order.

(iii) Such other injunctive relief as the court may consider necessary to prevent or restrain infringement of copyrighted material specified in the order of the court at a particular online location, if such relief is the least burdensome to the service provider among the forms of relief comparably effective for that purpose. {FN77: 17 U.S.C. §512(j)(1)(A)}

Congress was concerned that injunctions not become burdensome for service providers, and it indicated a number of factors to be considered by a court when deciding whether to grant an injunction and in determining its scope:

(A) whether such an injunction, either alone or in combination with other such injunctions issued against the same service provider under this subsection, would significantly burden either the provider or the operation of the provider’s system or network;

(B) the magnitude of the harm likely to be suffered by the copyright owner in the digital network environment if steps are not taken to prevent or restrain the infringement;

(C) whether implementation of such an injunction would be technically feasible and effective, and would not interfere with access to noninfringing material at other online locations; and

(D) whether other less burdensome and comparably effective means of preventing or restraining access to the infringing material are available. {FN78: 17 U.S.C. §512(j)(2)}

Finally, Congress made it clear that injunctions were not to be granted without proper notice to a service provider, so that the service provider can determine the true nature of any alleged infringement and contest the issuance of an injunction, except under very exceptional circumstances.

Injunctive relief under this subsection shall be available only after notice to the service provider and an opportunity or the service provider to appear are provided, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the service provider’s communications network.

TLDR Version [Very simple short legal version]: The US Copyright Office is seeking feedback on the Safe Harbor Provision of the DMCA [Digital Millennium Copyright Act]. This part deals with take down notices.

The EFF explains what Safe Harbor is:

Text related to Safe Harbor:

The DMCA “safe harbors” protect service providers from monetary
liability based on the allegedly infringing activities of third parties.
To receive these protections service providers must comply with the
conditions set forth in Section 512, including “notice and takedown”
procedures that give copyright holders a quick and easy way to disable
access to allegedly infringing content. Section 512 also contains
provisions allowing users to challenge improper takedowns. Without these
protections, the risk of potential copyright liability would prevent
many online intermediaries from providing services such as hosting and
transmitting user-generated content. Thus the safe harbors, while
imperfect, have been essential to the growth of the Internet as an
engine for innovation and free expression.

Why is this important?
My opinion: The fact the US Copyright Office is seeking feedback on this issue is a good thing. The fact that most DMCA take down notices are done by bots has been a nightmare. There seems to be no consideration of fair use in this take down notices. Also there has been clear abusive behavior to silence critics using DMCA takedown notices.
I will be keeping an eye on what the US Copyright Office does but it won't be till 2017 before they do anything.

Statement: I'm not a lawyer and can not give legal advice. I am a certified paralegal. What I have stated is my opinion from a legal perspective and is not to be construed as legal advice. A lawyer would be more qualified to give a better opinion and legal advice.

What are your guys thoughts about this news?


I'm kinda surprised they're asking for feedback. It's one of those things where it's time just to sit back and watch.

It does happen on occasion with US Government agencies. The FCC for example sought feedback on Net Neutrality in 2010 and 2014.

That's neat, I never managed to get into all the legal bits that run our world.

Now since I'm older it's one of the things I need to start doing. I need to go through my county's laws soon and make sure I'm not breaking any of them.

1 Like closes on Thursday

so yeah... they're not soliciting feedback, they're ignoring the safe harbour provisions in favour of the DMCA maffia lol

Did you read the PDF that I linked to? It states it clearly the US Copyright Office are looking for feedback. They even give the address you can send it too. Concerns that have been raised.
You can even read the comments that have been submitted since they last sought feedback on December 31, 2015:

They even discuss what feedback they got so far. To say they aren't seeking feedback is a false statement. With that said how they act on the feedback is different story. We do not yet know how they will act on the new feedback or what they will do with that.