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Docket 2015-7: USTelecom Reply Comments on DMCA

02.21.2017
Reply Comments

The United States Telecom Association (USTelecom) is pleased to submit these comments in response to the Request for Additional Comments (Notice) issued by the U.S. Copyright Office (Copyright Office) regarding the impact and effectiveness of the safe harbor provisions contained in the Digital Millennium Copyright Act (DMCA) and incorporates by reference its detailed submission of April 1, 2016, in response to the Copyright Office’s first Notice of Inquiry. Because of its direct relevance to many of the questions asked in the Notice, we also attach to these comments a copy of the amicus brief we filed in support of the appeal in the BMG v. Cox case in the 4th Circuit.

After reviewing initial comments filed in this proceeding, and participating in one of the Copyright Office’s roundtable hearing proceedings, USTelecom continues to maintain that the safe harbor provisions under section 512 of the DMCA are generally working effectively as intended by Congress and have helped to facilitate the unprecedented growth of the internet and internet users. We advise against making fundamental changes to the DMCA, as even so-called “improvements” could lead to unintentionally harming internet users, technology companies, and the US economy, negatively impacting broadband network investment and increasing the risk for unfounded secondary liability actions brought against service providers.

However, certain stakeholders continue to improperly seek to impose unreasonable requirements on service providers acting as mere conduits under section 512(a) that contradict the clear meaning and intent of the DMCA. Specifically, some rights-holders and their agents continue to flood Internet Service Providers (ISPs) with invalid “DMCA notices” purportedly sent under section 512(c), even when they know that the ISP is acting as a mere conduit. Although federal appellate courts have uniformly held that section 512(c) notices are not valid when sent to an ISP serving as a conduit provider, these rights-holders and their agents send many millions of notices to conduit providers, knowing full well that those providers cannot practically evaluate or act upon them for the purposes of conducting a “takedown.” This situation was specifically excluded from Congress’ carefully tailored notice, takedown, and counter-notice regime, and the role-based allocation of responsibilities among stakeholders under section 512 of the DMCA.