Business models and technology have changed dramatically since the 1990s; nowhere more so than online. Those changes, alongside some key judicial decisions, have distorted the operation of the US copyright law provision specifically designed to address online copyright infringement. Today, even a platform that knows that 80 percent of what it hosts are unlicensed copyrighted works, it can be shielded from accountability by the safe harbors in the Copyright Act. Copyright owners are left to send millions of takedown requests with little actual effect on piracy. This, along with other factors, led the US Copyright Office to conclude that the cooperative environment the law was meant to create has not and will not be realized without amending the law. And while dozens of other countries have successfully adopted measures to address online infringement from beyond their borders, the United States has not acted to implement similar procedures.
Restoring the balance needed to address online piracy effectively and provide an incentive for platforms to cooperate with copyright owners should include three key steps:
- Amending the law to reverse harmful judicial decisions, most significantly to restore the “red flag” test
- Requiring appropriate filtering out of infringements at the time of upload
- Codifying the authority of federal courts to order the blocking of foreign sites dedicated to infringing activities
The Copyright Office provided a roadmap for course-correction regarding misguided judicial decisions. And platforms already commonly use both filtering and site-blocking tools to protect their business models and reputation. The objections to using these same tools in the copyright context ring hollow and should not prevent consideration of measured and appropriate rules to reduce copyright piracy.