Save our Safe Harbor, continued: Internet Archive Supports Libraries and Nonprofits in Submission to the Copyright Office

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.

8 thoughts on “Save our Safe Harbor, continued: Internet Archive Supports Libraries and Nonprofits in Submission to the Copyright Office

  1. Adam

    No safe harbor means every single website is a criminal, period. That’s the definition of copyright liability over someone posting illegal material.

    There are some areas where “notice and staydown” is more disgusting than “mandatory upload filters”: I was proven right that if algorithms fail to make sure content stay down and the platform is held liable, then that means that having automated takedowns will not protect platforms from liability:

    They’re still bad either way.

  2. Guilherme Monteiro Jr.

    Hello there, I know how much it is important for you all to keep the libraries and nonprofits protected and such, and you all need to struggle even more about that. And I was thinking about suggesting you guys to create even more digital libraries and build even more data centers and archives over the world and the USA, as I have told to the guys of Archive-Today in anonymous form. Anyway, you guys should seek for help for some political party who supports the libraries and such, maybe a left-wing party or a left-wing libertarian party. Since nowadays left are more willing to support libraries and non-profit than the right, and that party FRT-PCTB from Brazil shows that very well. Even if it is necessary to work on the Deep Web for protect the libraries and non-profits because of the copyright thing you guys must do that. We must unite ourselves against Big Tech totalitarianism and Copyright totalitarianism that are only leading into what popular culture and popular media are nowadays (The New Order: Last Days of Europe shows that very well). We need to change the legislation of the world and adopt something that values more freedom in the left-wing sense, since right-wing sense is the sense of money and profit. I also suggest you guys to struggle for World Federalism as well. Same way for attempt to build more data centers over the USA and the World, and even a data center in the Moon and Mars, and make the Internet Archive, the online libraries and non-profits to last for centuries or even for a thousand years.

    1. Sarah

      We try, but the U.S. political system makes things very difficult. Americans have clung very tightly to the tradition of a two-party system. I’ve always heard, “a vote for a third party is throwing your vote away”, and until we lose that mindset, it’s always going to be Democrats vs Republicans. The Republicans have lost their collective minds and now cater to extremist vocal minorities. There’s a lot of lost hope, and it’s easy to accept unfairness as the status quo. Adam Conover has a very good TikTok where he talks about our need to organize.

      1. Moa

        > I’ve always heard, “a vote for a third party is throwing your vote away”

        That’s because of the way the voting system is made – 20 votes for 20 small parties have no chance to overcome 15 votes for one big party. Not that preferential voting system had managed to solve all that in Australia’s recent vote, but it’s definitely a better system and the count-up HAD taken a darn long time – apparently, there were maaany people putting the major parties last and trying to shake up the status-quo!

        1. Sally G.

          Some of us are working for ranked-choice voting in various U.S.A. locations—I am part of Voter Choice NJ doing that here; we are looking for local “trigger ordinances” for local votes when the state legislature makes it legal for local elections. N.J. is very much a “machine” state; other groups are fighting them by challenging our unique-in-the-country primary ballot structure, which gives party-approved candidates a 35% advantage in primary elections.

  3. Luke

    Enough of this and everything will have to move to Tor-only .onion sites. There will be no more open Internet, only the Dark Net and an astronomical rise in its use. While protocols other than Tor but similar to it are best for filesharing, this will be the “killer app” to get user on the dark net just like porn getting people on the Internet for the first time or Visicalc getting small computers into offices in the late 1970’s/

    The key to this is almost everything will be affected, nobody will be able to host user-generated content, so all that goes Tor-only .onion. All the overtly and deliberate “infringing” content will go there of course, along with all its huge numbers of users. Probably also all political or controversial content from EITHER end of the spectrum will go there too. Deplatform your enemies, let them deplatform you, build the dark net from both ends towards the middle. The result will be that no arm of government in any country will be able to work out the identity of the publisher of any website or of any reader without resorting to cumbersome and often illegal efforts to hack the machines in question and make them “phone home.”

    Governments and ISP’s trying to ban Tor have already failed in places like China and Iran. Just a few countries with advanced telecom structures could sit out any crackdown and host legions of Tor bridge notes.

    The normal bottleneck in Tor is Tor exit nodes, of which there are only about 2000. A Tor-only .onion site however is access directly from Tor without using an exit node at all. This removed both the bottleneck and the ability of governments to work out what is going over the rest of the Tor network.

    If enough ISP’s try to block Tor-or if the open Internet Tor rides over is shut down, mesh networking is next. Probably the corporations cannot afford to shut down online shopping and banking though, so we keep the ISPs as a connection to Tor.

    One thing this WILL kill is ad-supported sites with user generated content. This is because they would have to have contacts and at least coin wallets if not bank information to accept payment for ads. I for one will not mourn the demise of Facebook and Google, which I boycott already over their trackers. We’ve already proven right here on archive that video can be distributed without Youtube’s ads. If non ad supporteds sites cannot handle the bandwidth, than a Diaspora-style, distributed hosted model can.

    Lastly, a total shutdown of all networked communications would not force people back to buying CD’s and DVD’s. One kid in a school buying an album or movie and pissed about the network shutdown could distribute it by flash drive to all his friends, and the serial copying fears that sank digital audio tape by leading to DRM would become reality. They would need DRM on all cameras and all filesystems plus a forcible recall and destruction of all prior devices. Electronics would have to be controlled as if they were automatic weapons for this to work.

  4. Sally G.

    Please keep us posted on how/when/where to make comments. I am sure that others here, like me, have networks that can be motivated to add our 2¢.

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