The Copyright Office recently published a roughly 200-page report that analyses section 512 of the Digital Copyright Millennium Act (DCMA). The report focuses on determining whether the section is working for everyone, a question posed by Congress. In its report, the Copyright Office finds “that the balance Congress intended when it established the section 512 safe harbor system is askew.” In particular, areas of cooperation between online service providers (OSP) and rights holders are not as strong as anticipated when the DCMA was first passed. While the Copyright Office stops short of recommending an overhaul of the section, it does suggest to Congress areas that could use some fine-tuning to optimize the section, and better align the DCMA with its original goals.

Cover page photo of the Section 512 Report of the DCMA
Section 512 of the DCMA Report

What is Section 512 of the DCMA?

Section 512 refers to Title 17 of the United States Code Section 512, which specifically refers to limitations on liability relating to material online. Section 512 is often called the “safe harbor” section as it is aimed at providing OSP’s relief from all monetary liability for direct, contributory, and contributory copyright infringement as long as the specific procedures and requirements of the DMCA are followed—however complicated and confusing those procedures and requirements may be. In addition, the section also provides limitations on certain types of injunctive relief that may be obtained.

In particular, the DMCA provides four types of safe harbors:

  • Hosted;
  • Cached;
  • Transmitted; and
  • Links

It is important to note that the “safe harbors” are only provided for copyright claims for infringement by the OSP’s end user’s under United States law and does not extend to foreign countries. Nor does the safe harbor provisions extend to the OSP’s own direct infringement or when the OSP works with infringers to create infringement.

“Based upon its own analysis of the present effectiveness of section 512, the Office has concluded that Congress’ original intended balance has been tilted askew.”

Quote From U.S. Copyright Office’s Full Report on Section 512 of the DCMA

What’s Next?

While the U.S. Copyright Office provides recommendations to Congress and identifies untapped areas of potential that could potentially increase the efficacy of the section. It is now up to Congress to decide whether or not to take the time that is required and update the DCMA. As technology continues to advance at record paces, it will be interesting to see if the balance originally intended by Congress through the implementation of Section 512 is restored.