Preliminary Proposals for DMCA Amendments<br />Congressional CommitteeCameron Zinsli, Luca Guidobaldi, Dana Halevy Rozner, Andrew Asplund, Jin Han, Lawrence Wang, Katherine Rea, Anna Bakhmetyeva<br />
<ul><li>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))</li></ul>-> 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)]”<br /><ul><li>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.</li></ul>Overview of Proposed Changes<br />
<ul><li>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.</li></ul>Policy Justifications<br />
<ul><li>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New definitions will become outdated as technology develops; perpetuating litigation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</li></ul>Comparisonto Other Proposals<br />
Proposal Two<br />Andrew Asplund, Jin Han, Lawrence Wang<br />
<ul><li>Separate sharing sites with other ISPs by redefining it: </li></ul>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.<br /><ul><li>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.</li></ul>Overview of Proposed Changes<br />
<ul><li>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</li></ul>Policy Justifications<br />
<ul><li>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</li></ul>Comparisonto Other Proposals<br />
Proposal Three<br />Katherine Rea, Anna Bakhmetyeva<br />
Create New Section within the Department of Justice<br />Review and amend the Copyright Act:<br />a) Public graduate response system<br /> b) Statutory clarification of contributory, vicarious, and inducement liability<br />Filter implementation duties of ISP<br />Education campaigns <br />Overview of Proposed Changes<br />