Friday, February 24, 2017

Shapeways Blog - Trademark and Copyright Safe Harbors (again)


Trademark and Copyright Safe Harbors (again)

Safe Harbor by Flickr user Mark A. Vargas, used under CC license 2.0

Today, Shapeways, along with Kickstarter, MakerBot, and Meetup, filed comments in the U.S. Copyright Office's multi-year study into how the copyright safe harbors that allow websites such as ours to function are working. You can read about prior developments in this study here.

The role of the safe harbors are reasonably straightforward. Websites (such as Shapeways) that allow users to post content do not know if the content being posted infringes on copyrights held by others. Without the safe harbor, this would require Shapeways (and Kickstarter and MakerBot and Meetup and Facebook and YouTube and every other site on the internet) to clear every model, comment, video, and other type of upload through the legal department before posting. In other words, without the safe harbor protecting sites from the potential copyright infringement of their users, none of these sites would exist.

Fortunately, the safe harbors allow sites such as Shapeways to assume that content posted by our users does not infringe on copyright until we hear from a rightsholder. At that point we quickly take the content down to initiate the notice-and-takedown process (details on how that process works can be found here).

These safe harbors were established as part of the Digital Millennium Copyright Act (often abbreviated as the DMCA) in 1998. In 2015 the U.S. Copyright Office initiated a study of how well they were working.

In this current round of comments, we made two primary points:

First, we noted that the DMCA copyright process continues to be heavily influenced by trademark law. Including a claim of trademark infringement effectively removes an accusation of infringement from the DMCA process. Among other things, that makes it very hard for users accused of infringement to challenge that accusation. We believe any study on the DMCA copyright process should recognize that element of how the process works in the real world.

Second, we raised concerns about the framing of much of the discussion in the Study. In addition to an earlier round of comments, the Copyright Office held a series of roundtables (which, for reasons known only to the Copyright Office, it refused to record or allow to be recorded either in audio or video but did release transcripts of) to discuss the issues. In both the earlier round and at the roundtables, a great deal of attention was paid to how the largest online platform – Google – interacted with the safe harbors. In our second point we tried to remind the Copyright Office that the vast majority of websites protected by the safe harbor are not dealing with millions of automated takedown requests a year. We therefore suggested that shaping solutions or conclusions with that scenario in mind would overlook how the safe harbors operated in the vast majority of cases.

As far as we know, this will be the last round of comments in this proceeding. At some point it is likely that the Copyright Office will release their report on the safe harbors. When they do, we will make sure to update you on the blog. Let us know in the comments if you have any questions.

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