Report Acknowledges that Universities Like BYU May Have a Special Status in Their Role as Internet Service Providers
On May 21, 2020, the United States Copyright Office ("USCO" or "Office") released, Section 512 of Title 17: A Report of the Register of Copyrights, a report based on several years of study and public comment on Section 512 of Title 17 of the U.S. Code (the "Report"). In light of the internet's rapid development in the last two decades, the Report evaluates the success of U.S. copyright law and makes recommendations to Congress based on that evaluation.
By way of background, in 1998, Congress passed the Digital Millennium Copyright Act ("DMCA") in an attempt to balance the interests of online service providers/internet service providers ("ISPs") and rightsholders. Creators and other rightsholders were (and still are) concerned about unfettered, unlawful use of their material on the seemingly wild-west platform of the internet. ISPs were (and still are) concerned about massive vicarious liability for the copyright infringement of their users.
Colleges and universities like BYU often express concern about vicarious liability since they act as ISPs for their students and other members of their campus communities. The DMCA addressed the concerns of these two major groups with the concept of "notice and takedown," embodied in Section 512.
Essentially, the section gives rightsholders a chance to give "notice" when they believe their content has been infringed. And it provides ISPs who receive that notice with a "safe harbor" if they take down the allegedly infringing content, allow counter-notices from the alleged infringers, and discontinue the online access of repeat infringers.
In its Report, the USCO concludes in its executive summary that the balance of interests intended by Congress when it enacted Section 512 has been "tilted askew." One main concern is that rightsholders' interests are not protected enough because ISPs don't have sufficiently stringent and publicized policies for the exclusion of repeat infringers.
The Report acknowledges, though, that colleges and universities may need special discretion in handling repeat infringers. Peter Midgley, the Director of the BYU Copyright Licensing Office ("Midgley"), participated in the 512 hearings and was quoted in the Report. In his remarks, Midgley pointed out that if a university, acting as an ISP, has to cut off the internet service of one of its students, it is "tantamount to expelling them from the university." After all, students today, especially those who live on campus, are dependent on the internet provided by the university for studying, communication, networking, entertainment, and other essential aspects of their lives. The concerns expressed by Midgley in the hearings and Report highlight this special concern of educational institutions and could be taken into account if and when Congress decides to revisit Section 512.
Not all respondents to the Report are pleased with its findings. One pair of online commentators concludes that the Report neglects the interests of everyday internet users in favor of rightsholders, pointing out that virtually everyone—not just college and university students—is dependent on the services of ISPs for critical aspects of daily life. If ISPs are made to come down harder on users, another commentator notes, free speech may suffer.
Other blog posts giving an overall picture of the Report as a whole can be found here and here.