Standard Technical Measures and Section 512
The U.S. Copyright Office’s 2020 report, Section 512 of Title 17, examined section 512’s “safe harbor” framework, which limits an internet service provider’s liability for infringement if it meets certain conditions. One of these conditions is that the internet service provider “accommodates and does not interfere with standard technical measures” used to identify or protect copyrighted works. In September 2020, the Copyright Office held virtual stakeholder discussions covering the legal foundation of standard technical measures (STMs), current technologies and their potential for adoption as STMs, and means for identifying or developing STMs going forward.
In June 2021, Senators Thom Tillis and Patrick Leahy asked the Office to further explore the identification and implementation of STMs under section 512(i). Building on the section 512 report and in response to the Senators’ request, the U.S. Copyright Office undertook a study gathering additional information on STMs. After considering the comments submitted as well as Congress’s objectives when it passed the Digital Millennium Copyright Act (DMCA) in 1998, the Copyright Office has identified several statutory changes to section 512(i) that could facilitate the adoption of STMs.
In its December 20, 2022 letter to the Senators, the Office recommended that Congress amend section 512(i) to
- 1) clarify that the terms “broad consensus” and “multi-industry” require substantial agreement but not unanimity, and only of those industries directly affected by an STM;
- 2) in section 512(i)(2)(A), replace the word “developed” with “designated,” in order to confirm that technical measures qualify as STMs if they are designated as such by a broad consensus of copyright owners and service providers, even if they were originally developed by a narrower subset of stakeholders or emerged from proprietary processes; and
- 3) set forth a list of factors for weighing whether a particular measure imposes substantial costs and burdens on service providers.
This study on STMs was separate from the Office’s consultations on voluntarily deployed technical measures for identifying or protecting copyrighted works online. Information on the Office’s complementary study of voluntary technical measures is available here.