As many of our readers will know, Section 512 of the Digital Millennium Copyright Act is the 1998 law that established the notice-and-takedown system that protects online platforms of all kinds—including, libraries, archives, and other nonprofits—from liability for the copyright infringement of others. While the law is not perfect, the safe harbor provided by the DMCA has been important in allowing libraries, nonprofits, and other smaller participants to harness the power of the internet and play a meaningful role in the online information ecosystem. More broadly, as our friends at the Wikimedia Foundation have noted, “Section 512 is crucial to the functioning of many of the most popular and important segments of the Internet, and the creative expression that happens there.”
Unfortunately, Section 512 has been under attack for some time. In addition to various legislative proposals, the United States Copyright Office has repeatedly been asked to conduct work on Section 512 that could threaten the safe harbor status of libraries and nonprofits and the communities of their patrons and users. In 2016, for instance, Internet Archive submitted comments to the Copyright Office’s first large Section 512 study, as outlined in a blog post entitled “Save our Safe Harbor“—there, we noted the special importance of the DMCA to “libraries and other nonprofit organizations” which rely in substantial part on volunteer communities and which “are unlikely to be able to bring to bear the sorts of resources [available to] larger commercial entities.” Then again in 2020, as the Copyright Office kept working towards Section 512 reform, the Internet Archive (in collaboration with the New York University Technology Law & Policy Clinic) urged the Copyright Office to consider how changes to the DMCA could have “disproportionately negative impacts on public service non–profits such as the Internet Archive and our patrons.”
This year, the Copyright Office is continuing with ever more work streams on DMCA reform. And while the conversation remains dominated by the commercial interests of some of the world’s largest corporations, Internet Archive has again submitted comments seeking to correct this imbalance. Most recently, in a May 27, 2022 comment on the Copyright Office’s study of Section 512(i) Standard Technical Measures, we emphasized that—notwithstanding industry attempts to use Section 512(i) to impose burdensome technical mandates which could threaten all but the largest commercial intermediaries—nothing in the law “admits of a standard technical measure which would impose substantial burdens and costs on libraries [and] non-profits.”
The DMCA Safe Harbors, while imperfect, have been essential to the ability of libraries, nonprofits, and others to develop public-interest-minded spaces online. And while much has changed since the DMCA’s enactment, it is as important as ever that our legal and regulatory systems allow library and other public interest spaces to flourish online.