After a recent review of the safe harbor provisions within the Digital Millennium Copyright Act (DCMA), the U.S. Copyright Office has made a staggering suggestion that Congress should reconsider the liability protection that websites like YouTube and other social media platforms receive. The biggest takeaway from their report was that YouTube’s current algorithm, which automatically determines which video content is recommended to its users, potentially goes beyond the original scope that Congress established in 1998. Notwithstanding that it would ultimately be up to Congress to decide whether to change the provisions, the Copyright Office’s report is meant to provide insight and could be persuasive.
Currently, Section 512 of the DCMA prevents websites like YouTube from incurring liability of direct copyright infringement if they utilize effective and prompt measures to takedown notices they receive. The Copyright Office is suggesting the potential removal of this protection.
The initial scope of these provisions are meant to protect sites from the act of simply providing storage and/or access to users of content. However, some circuit courts have “expanded” these limits of the safe harbor provisions, which the Copyright Office argues is one stretch too far. The expansion would include avoiding liability for content curated and recommended by YouTube’s controversial algorithm, an automated system that chooses and shares specific content to users of the site.
The Copyright Office does not believe that this interpretation is appropriate due to the lack of human intervention within the current algorithm. Back in the late nineties, when the Act was first established, human employees were directly involved in recommendations to users. Allowing automated programs to find protection under the DCMA would go beyond what Congress originally intended, as they did not foresee this technological advancement at the time.
Ultimately, this is a problematic situation on both sides. On one end, some users may rejoice at the thought of establishing more liability for sites like YouTube. No one knows for sure how the algorithm operates, and it has led to a lot of frustration from users and creators who cannot get their own work promoted, but see infringing work being distributed. However, if Congress decides that these protections shouldn’t be expanded, YouTube may be forced to restrict the types of user-generated content allowed on its site to avoid liability.
These changes could even mean the possibility of getting rid of the algorithm altogether, but it’s not a guarantee. Nevertheless, this shift in YouTube’s operation could mean disastrous things for smaller YouTube creators, who rely on the algorithm to attract viewership and gain followings. It will be interesting to see how these suggestions are taken by Congress and whether or not they will choose to make changes. If they do, both online service providers and users alike may be in for a rude awakening.
Author, Shelby Shilatz-Lewis, is going into her third year at Florida State University College of Law with an interest in intellectual property and entertainment law. She is currently a legal intern with Lee Law, PLLC.