Pamela Samuelson Pushes Back on Stricter Copyright ISP Liability Rules

Insofar as Congress contemplates any change to the DMCA safe harbors, it should take a balanced approach, taking into account the vitality and success of American Internet platforms, the interests of startups and small to medium-sized firms, and the interests of the many millions of Internet users who share their own creations through these platforms, as well as the interests of major copyright industries and individual creators for whom the DMCA safe harbor rules have been frustrating. The United States should maintain its international leadership in copyright law and policy in the regulation of ISPs.
- Professor Pamela Samuelson, UC Berkeley School of Law, during her testimony at the Senate Judiciary Committee's Intellectual Property Subcommittee hearing about the DMCA safe harbors

Berkeley law professor Pamela Samuelson is recognized as a pioneer in digital copyright law, intellectual property, cyberlaw and information policy.

In March of this year, Professor Samuelson testified at the Senate Judiciary Committee's Intellectual Property Subcommittee hearing, “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?”. Her testimony discussed three main points:

• How the existing international norms and regulations concerning liability of Internet Service Providers (ISPs) for hosting user-generated content have been impacting internet businesses and users for the past two decades;
• The EU’s recently adopted and more strict liability rules for online content sharing (Article 17 of the Directive on Copyright and Related Rights in the Digital Single Market) and why these rules should not serve as a model for consideration of reforming the safe harbor provisions of the US Digital Millennium Copyright Act (DMCA) of 1998; and,
• Encourage Congress to take a balanced approach to regulating ISPs that host user-uploaded content, noting that “As important as are the interests of the individual creators and copyright industry groups who support stronger copyright regulations to protect their legitimate interests, there are other important industry, individual creator, and public interests at stake in the regulations that affect online content hosting services”

Professor Samuelson expands on this testimony with her article, “Pushing Back on Stricter Copyright ISP Liability Rules” (Michigan Technology Law Review, Forthcoming). The article discusses the copyright industry concerns about online piracy and their dissatisfaction with the existing “safe harbor” and “notice-and-takedown” rules that limit the liability of ISPs that host contents uploaded by their users. Additionally, Professor Samuelson examines the EU’s efforts, through Article 17 of the Digital Single Market (DSM Directive), to apply much stricter obligations on for-profit ISPs that host large amounts of user content, as well as the United States Copyright Office’s Section 512 Study and key recommendations it made for changes to the DMCA safe harbors.

Professor Samuelson also calls attention to the varied Internet users who would be impacted by changes to the DMCA safe harbors:

In considering any DMCA reforms, Congress should consider not only the implications for competition and innovation in the US-based Internet sector, but also the interests of scholars and other researchers who are now widely posting their research online on an open access basis and the millions of user-creators and their audiences who rely on the services that ISPs provide.

In conclusion, Professor Samuelson urges Congress to be “be wary of any changes to the current DMCA safe harbor rule that could have substantial negative impacts on ISPs, whether small, medium-sized, and startup as well as established mega-providers, in addition to the millions of US-based Internet creators of online contents that are widely enjoyed by the hundreds of millions of Internet users.”

Below is the abstract from “Pushing Back on Stricter Copyright ISP Liability Rules.”

Copyright ISP liability rules are currently under siege. For more than two decades, Internet Service Providers (ISPs) in the US, EU, and many other countries successfully existed under similar “safe harbor” and “notice-and-takedown” rules that limit the liability of ISPs that host contents uploaded by their users. Under these rules, such ISPs are insulated from liability for their users’ infringements so long as an ISP neither knows about nor is complicit in the infringing activities of its users. An ISP could lose the safe harbor, however, once it independently learned or was notified by copyright owners of specific instances of infringing materials, unless the ISP expeditiously removed or disabled access to that material.

Major copyright industry groups have not been supportive of these notice-and-takedown safe harbors since they were first adopted, and their dissatisfaction has only grown over time as online infringements have grown to scale. In the EU, copyright industry concerns about online piracy contributed to adoption in 2019 of the Directive on Copyright and Related Rights in the Digital Single Market (DSM Directive). In particular, Article 17 of the DSM places much stricter obligations on for-profit ISPs that host large amounts of user contents.

In the US, the Senate Judiciary Committee’s Intellectual Property Subcommittee in 2020 has commenced a series of hearings on the DMCA safe harbors. In May 2020, the US Copyright Office issued its long-awaited study on Section 512 of US copyright law, in which it recommended several significant changes to the safe harbor rules. It did not, however, at this time endorse a DSM Directive Article 17-like notice-and-staydown regime, as some copyright industry representatives had urged.

This Article explores the development and current state of ISP copyright liability rules, beginning with the circumstances that led to the creation of ISP safe harbors, the Digital Millennium Copyright Act (DMCA) of 1998, and the role the US has played in making the notice-and-takedown regime an international standard. The Article then shows that the DSM’s Article 17 is internally contradictory, deeply ambiguous, and harmful to small and medium-sized companies as well as to user freedoms of expression. It also discusses why Article 17 may well violate the European Charter of Fundamental Rights.

The Article also critiques the Copyright Office’s Section 512 Study and key recommendations it made for changes to the DMCA safe harbors. The 512 Study purports to take a comprehensive view in presenting its review and recommendations, but on closer reading its almost exclusively pro-copyright industry stances on reform of virtually every aspect of § 512 shortchanges other stakeholder interests.

The Article recommends that Congress take a balanced approach in considering any changes to the DMCA notice-and-takedown rules. Any meaningful reform of ISP liability rules should consider the interests of a wide range of stakeholders, including highly successful US-based Internet platforms, smaller and medium-sized ISPs, startups, the many millions of Internet users who share their own creations through these platforms, hundreds of millions of Internet users who enjoy these creations, as well as the interests of major copyright industries and individual creators who have been dissatisfied with the DMCA safe harbor rules.

Read the full article: “Pushing Back on Stricter Copyright ISP Liability Rules” by Pam Samuelson (Michigan Technology Law Review, Forthcoming). Also of interest: Professor Samuelson’s testimony during the U.S. Senate Judiciary Committee’s Intellectual Property Subcommittee hearing, “Copyright Law in Foreign Jurisdictions: How are other countries handling digital piracy?” on March 10, 2020. (Video of the hearing and downloadable testimonies from all speakers are available.)

Pamela Samuelson is the Richard M. Sherman Distinguished Professor of Law and Information at the University of California, Berkeley. She is recognized as a pioneer in digital copyright law, intellectual property, cyberlaw and information policy. Since 1996, she has held a joint appointment at Berkeley Law School and UC Berkeley's School of Information. Samuelson is a director of the internationally-renowned Berkeley Center for Law & Technology. She serves on the board of directors of the Electronic Frontier Foundation and the Electronic Privacy Information Center, as well as on the advisory boards for the Center for Democracy & Technology, Public Knowledge, and the Berkeley Center for New Media.