Whether the Copyright Office can help stakeholders identify and adopt standard technical measures without congressional action?

As noted in the Report, the Office believes that the identification and adoption of standard technical measures (“STMs”) may provide an opportunity to improve the overall functioning of the notice-and-takedown system through relatively small, incremental changes that nonetheless could have a large impact on the ability of all rightsholders to protect their rights online.

The Copyright Office plans to build upon the recommendations in the Report by facilitating discussions among a wide range of stakeholders, with a particular focus on ensuring that those who have not traditionally participated in the development of prior voluntary measures – such as small creators and individual users – have a meaningful opportunity to participate.

To this point, the Office believes it would be essential for technologists from the relevant industries to participate in the discussions to evaluate the effectiveness and feasibility of adopting certain measures as STMs.

The Office anticipates two potential hurdles that could ultimately impact the success of these discussions: (1) without regulatory authority, the Copyright Office’s ability to facilitate the adoption of STMs is limited to its ability to secure the cooperation of relevant parties, and (2) the current wording of the statute contains certain ambiguities that may limit the universe of potential qualifying technologies.

Regulatory Authority

In the Report, the Copyright Office suggested that Congress may wish to consider providing the Office with regulatory authority to facilitate the identification and adoption of STMs. Delegating such regulatory authority to the Office would lessen the likelihood that the identification of STMs could be blocked by a small minority of stakeholders.

Statutory Ambiguities

Without legislative change or regulatory authority, the current wording of section 512(i) contains ambiguities that could impede the identification and adoption of STMs. The Office anticipates that these ambiguities would be the subject of discussion during the kick-off meeting, in an effort to reach consensus on the scope of potential STMs. Some of the questions raised by the current statute include the following:

• Under section 512(i)(2)(A), a measure can qualify as an STM if it has been “developed pursuant to a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry standards process.” It is unclear what level of agreement among stakeholders is sufficient to constitute a “broad consensus.”
• Under section 512(i)(2)(B), a qualifying measure must also be “available to any person on reasonable and nondiscriminatory terms.” It is unclear whether this language is merely intended to serve as a threshold requirement for a technology to be defined as an STM, or whether it may carry an obligation, once a technology has been defined as an STM, to continue to make it available on reasonable and nondiscriminatory grounds.
• Under section 512(i)(2)(C), an STM must not “impose substantial costs on service providers or substantial burdens on their systems or networks.” However, given the variation in size among OSPs and their associated ability to carry any costs associated with implementation of a particular STM, some smaller OSPs may be negatively impacted more significantly than others. Some stakeholders have raised the concern that a requirement to implement such technologies could thus result in further entrenchment of incumbent stakeholders. It is unclear, then, whether the substantiality of costs and burdens on an OSP should be evaluated by an objective standard that looks at the average OSP, or a subjective standard that evaluates the costs and burdens on each specific OSP.
• • Section 512(i)(1)(B) states that an OSP must “accommodate and not interfere” with STMs. To the extent that a technology is defined as an STM, it would seem clear from this language that an OSP cannot block a rightsholder from using that technology on its own systems to identify and protect their works. However, the statute does not provide clarity as to an OSP’s obligation with respect to technologies that must run on the OSP’s system. Does 512(i)(2)(C) imply that an OSP must deploy such an STM on its system at its own cost? Does accommodation require that an OSP provide access to its system (including, potentially, its back-end) to allow a rightsholder to deploy an STM directly?