Section 512 Study

The United States Copyright Office has completed its public study to evaluate the impact and effectiveness of the safe harbor provisions contained in section 512 of title 17, United States Code. This is the first government study of the effectiveness of the notice-and-takedown system since its enactment over twenty years ago.

Enacted in 1998 as part of the Digital Millennium Copyright Act (DMCA), section 512 established a system for copyright owners and online entities to address online infringement, including limitations on liability for compliant service providers to help foster the growth of internet-based services. Congress intended for copyright owners and internet service providers to cooperate to detect and address copyright infringements. To qualify for protection from infringement liability, a service provider must fulfill certain requirements, generally consisting of implementing measures to expeditiously address online copyright infringement.

While Congress understood that it would be essential to address online infringement as the internet continued to grow, it may have been difficult to anticipate the online world as we now know it, where each day users upload hundreds of millions of photos, videos, and other items, and service providers receive over a million notices of alleged infringement. These developments, as well as technological and business model changes that have occurred over the years, resulted in changes to the internet ecosystem that the Copyright Office believed would benefit from further study. As recommended by the then-Register of Copyrights in testimony and requested by the then-Ranking Member of the House Judiciary Committee at an April 2015 hearing, the Office initiated a study evaluating the impact and effectiveness of section 512.

The Office published an initial Notice of Inquiry on December 31, 2015, seeking written comments to thirty questions covering eight categories of topics. The Office received over 92,000 written submissions in response. In May 2016, the Office held two-day public roundtables in New York and San Francisco. The Office then published a second Notice of Inquiry on November 8, 2016, seeking written comments to sixteen questions covering four topics, in addition to inviting the submission of empirical research studies assessing the operation of the safe harbor provisions on a quantitative or qualitative basis. The Office received seventy-nine written comments and nine empirical studies in response. The Office held another roundtable in Washington, DC, on April 8, 2019. Among many issues, the Office considered the costs and burdens of the notice-and-takedown process on large- and small-scale copyright owners, online service providers, and the general public. The Office also reviewed how successfully section 512 addresses online infringement and protects against improper takedown notices.

The final Report was published on May 21, 2020. In reviewing the section 512 system, the Copyright Office identified five important principles that guided its analysis:

  • copyright protection online must be meaningful and effective;
  • online service providers operating in good faith must be afforded legal certainty and leeway to innovate;
  • Congress intended to incentivize cooperation between online service providers and rightsholders, but cooperation cannot be the only answer;
  • to the extent possible, government decision-making should be based on evidence; and
  • internet policy in the twenty-first century cannot be one-size-fits-all.

The Copyright Office concluded that the operation of the section 512 safe harbor system today is unbalanced. The Report highlights areas where current implementation of section 512 is out of sync with Congress’ original intent, including: eligibility qualifications for the service provider safe harbors, repeat infringer policies, knowledge requirement standards, specificity within takedown notices, non-standard notice requirements, subpoenas, and injunctions. The Office does not recommend any wholesale changes to section 512, but instead identifies certain areas where Congress may wish to fine-tune section 512’s current operation in order to better balance the rights and responsibilities of online service providers and rightsholders in the creative industries.

On May 29, 2020, Senators Tillis and Leahy, both members of the Senate Judiciary Committee Subcommittee on Intellectual Property, sent a letter to the Copyright Office asking a series of follow-up questions about the Report and requesting technical assistance. The Office sent its response to the Senators on June 29.

Information about the Study, including the final Report, the Office's response to Senators Tillis and Leahy, Notices of Inquiry, public comments, and transcripts of public roundtables, may be accessed via the drop-down menu on the right of this page.